Opinion
CV166060283S
10-02-2017
Tiffany Brown PPA Annya Brown et al. v. William Cusick, M.D. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Dale W. Radcliffe, J.
FACTS
The minor Plaintiff, Tiffany Brown, brings this action claiming medical malpractice through her mother and next friend Annya Brown, against four named Defendants. Annya Brown, and her husband Grevon Brown, are also Plaintiffs in their individual capacity. They claim recovery for expenses incurred in the care and treatment of their daughter, Tiffany Brown.
Dr. William Cusick is a physician, board certified in obstetrics and gynecology. The operative pleading, the Amended Complaint dated October 26, 2016, also names St. Vincent's Medical Center, Women's Health Connecticut, LLC, and Women's Health Connecticut, Inc. as Defendants.
Between January 7, 2014 and August 6, 2014, Dr. Cusick undertook to care for and treat as his patient Annya Brown, who was pregnant with her daughter Tiffany Brown. The treatment involved the management of prenatal and antenatal care for the pregnancy, including labor, delivery and post partum care.
It is claimed that Dr. Cusick failed to adhere to the standard of care applicable to a board certified obstetrician and gynecologist, and that Tiffany Brown suffered permanent and debilitating injuries.
In March of 2014, a full anatomical survey was performed on Annya Brown. She was approximately nineteen (19) weeks gestation at the time.
A second ultrasound was conducted on July 30, 2014, during the third trimester of pregnancy. Annya Brown was approximately thirty-seven (37) weeks gestation at the time of the diagnostic examination.
It is claimed that Dr. Cusick failed to diagnose either ultrasound as abnormal, notwithstanding the presence of an enlarged lateral ventricle of the brain. It is further alleged that Dr. Cusick failed to perform a cesarean delivery, in order to safely deliver the newborn baby.
As a result, it is claimed that the minor Plaintiff was born with a brain abnormality, spina bifida, and impaired bodily functions. The Plaintiffs contend that Tiffany Brown will be required to undergo lifelong medical treatment, and that she will be prevented from enjoying the daily activities of life.
The operative complaint consists of twelve (12) counts, three (3) of which are addressed to each named Defendant.
Count One is a claim of medical negligence directed against Dr. Cusick, while Count Two is a claim pled as negligent infliction of emotional distress by Dr. Cusick on Annya Brown. In Count Three, Annya and Grevon Brown claim that they have been forced to expend sums of money for the care and treatment of their daughter, and will be forced to expend sums of money for her proper care, treatment and maintenance in the future.
Counts Four, Five and Six are directed against St. Vincent's Medical Center for medical negligence, negligent infliction of emotional distress, and recovery of expenses for care, treatment and maintenance. Counts Seven, Eight and Nine are pled against Women's Health Connecticut, LLC, and Counts Ten, Eleven and Twelve are directed against Women's Health Connecticut, LLC.
Dr. Cusick, Women's Health Connecticut, LLC, and Women's Health Connecticut, Inc., have moved to strike Counts Two, Eight and Eleven, those related to claims of negligent infliction of emotional distress by Anna Brown. St. Vincent's Medical Center has moved to strike Count Five, the count claiming negligent infliction of emotional distress against the hospital.
In addition, all Defendants have moved to strike the counts involving claims for expenses incurred or to be incurred on behalf of Tiffany Brown (Counts Three, Six, Nine and Twelve), to the extent that Annya and Grevon Brown seek to recovery for expenses incurred by their minor daughter, after she attains the age of majority, eighteen (18) years.
In their attempt to strike Counts Two, Five, Eight and Eleven, the Defendants maintain that no clause of action can be maintained, either based on bystander emotional distress, or negligent infliction of emotional distress.
MOTION TO STRIKE--STANDARD OF REVIEW
The purpose of a motion to strike is to test the legal sufficiency of a pleading. Faulkner v. United Technologies, Inc., 240 Conn. 576, 580, 693 A.2d 293 (1997); Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Practice Book S. 39. The motion assumes all well pleaded facts to be true, and if the facts, as deemed proven, would support a claim or defense, the motion to strike must be denied. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003); Waters v. Autuori, 236 Conn. 820, 825-26, 676 A.2d 357 (1996).
In ruling upon a motion to strike, the court's inquiry is limited to the facts alleged in the operative complaint. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285-86, 449 A.2d 986 (1982). All facts alleged must be construed most favorably to the non-moving party, and to sustaining the complaint. Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992). The allegations contained in a complaint should be read broadly, and not in a hyper technical manner. Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006).
Although facts properly pled in a complaint are deemed proven, conclusions of law are not. Maloney v. Conroy, 208 Conn. 392, 394, 545 A.2d 1059 (1998).
NO CLAIM FOR BYSTANDER EMOTIONAL DISTRESS MAY BE MAINTAINED
A claim for bystander emotional distress is a derivative claim. It allows a bystander who witnesses another individual suffer injury or death due to the negligence of a third party, to seek recovery from that third party for the emotional distress suffered by the bystander as a result. Clohessy v. Bachelor, 237 Conn. 31, 46, 675 A.2d 852 (1996).
Although a claim for bystander emotional distress has been recognized in the context of an underlying medical malpractice claim; Squeo v. Norwalk Hospital Association, 316 Conn 558, 580-81, 113 A.3d 932 (2015); any such claim must fail, based upon the facts alleged in this case, for several reasons.
A mother is not a " bystander" during the prenatal period, or during the birth of her child. Instead, an attending physician owes a duty of care both to the mother, and to the baby, both prior to and during birth and delivery. McKiernan v. Komarynsky, 49 Conn.Supp. 161, 167, 865 A.2d 1262 (2004). Any treatment administered, such as the ultrasound studies conducted in this case can only be accomplished with the active participation and the consent of the mother. Vrzivoli v. Women's Health Associates, (March 2011, Levin, J.).
To label a mother a " bystander" at the birth of her child defies science, logic, and common sense. As the late Supreme Court Justice Felix Frankfurter once observed, " there comes a point where the court should not be ignorant as judges of what we know as men." (human beings).
Furthermore, Squeo recognizes a claim for bystander emotional distress in a medical malpractice context, only in situations where one witnesses a vulnerable loved one being injured by gross misconduct on the part of a health care provider. Squeo v. Norwalk Hospital Association, supra, 580.
No claim of bystander emotional distress is sustainable based upon any reading of the facts alleged.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIM SURVIVES MOTION TO STRIKE
The Plaintiff Annya Brown does not argue, concerning Counts Two, Five, Eight and Eleven, that a claim for bystander emotional distress is pled, notwithstanding the claims of the Defendants to the contrary.
Instead, Annya Brown argues that she may maintain a common law cause of action for negligent infliction of emotional distress, based upon the alleged breach of a duty owed to her by Dr. Cusick.
Any claim for bystander emotional distress is premised upon a direct duty owed to the mother. Unlike a claim for bystander emotional distress, the claim is not derivative.
In order to prevail in a claim for negligent infliction of emotional distress, the Plaintiff must satisfy four (4) elements: 1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress, 2) the plaintiff's distress was foreseeable, 3) the emotional distress was severe enough that it might result in bodily harm, and 4) the defendant's conduct was the cause of the plaintiff's distress. Hall v. Bergman, 296 Conn. 169, 182 n. 8, 994 A.2d 666 (2010); Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003); Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 398 A.2d 1269 (2008).
The Plaintiff must prove that the defendant should have realized that his conduct involved an unreasonable risk of causing emotional distress, and that the distress, if caused, might result in bodily harm. Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 446, 782 A.2d 87 (2001); Montinieri v. Southern New England Tel. Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978).
The operative complaint clearly sets forth the elements of a claim for negligent infliction of emotional distress. In a medical negligence claim, a treating physician must be found to have breached a standard of care applicable to the patient. Gold v. Greenwich Hospital Association, 262 Conn. 248, 254-55, 811 A.2d 1266 (2002); Amsden v. Fischer, 62 Conn.App. 323, 331, 771 A.2d 233 (2001). By contrast, a claim of negligent infliction of emotional distress need not necessarily involve a breach of the applicable standard of care by the treating physician. If the plaintiff's fear or distress was reasonable, in light of the defendant's conduct, and the defendant should have realized that his conduct created an unreasonable risk of causing distress, there is a basis for liability. Barrett v. Danbury Hospital, 232 Conn. 242, 261, 654 A.2d 748 (1995).
Superior Courts considering this issue have found that there is a valid claim for negligent infliction of emotional distress, in situations where a child is injured, due to negligent obstetrical care. Vrzivoli v. Women's Health Associates, supra ; Burnette v. Boland, (April 2010, Martin, J); Quintana v. Servetas, (January 2006, Skolnick, J).
Although proof of the elements of negligent infliction of emotional distress may be problematic at the time of trial, particularly with regard to allegations regarding non invasive diagnostic examinations, the operative complaint sets forth a valid cause of action. Therefore, the motions to strike Counts Two, Five, Eight and Eleven, must be denied.
PARENTS CLAIM FOR EXPENSES INCURRED PRIOR TO AGE OF MAJORITY IS A VALID CLAIM
The Defendants seek to strike Counts Three, Six, Nine and Twelve of the operative complaint. These counts involve claims for costs and expenses incurred by Annya and Grevon Brown, concerning their minor daughter, Tiffany Brown.
It is well established, that when a minor child is injured by the negligent conduct of a third party, two causes of action spring into existence: 1) a right of action by the child for personal injuries, and 2) a right of action by the parents to recover for expenses incurred. Krause v. Almor Homes, Inc., 147 Conn. 333, 335-36, 160 A.2d 753 (1960); Shiels v. Audette, 119 Conn. 75, 77, 174 A. 323 (1934).
Of course, the parents can only recover for economic damages sustained for the care, treatment and maintenance of Tiffany Brown, until she reaches the age of majority. Therefore, the motion to strike must be denied, as to those claims made by Annya and Grevon Brown concerning their daughter, while she is a minor.
The motion to strike is therefore denied.
CONCLUSION
The motions to strike are DENIED.