Opinion
No. 562748
April 25, 2003
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE (#127 and #128)
The defendants David Colletti, M.D., Thomas Bell, M.D. and Chelsea Clinic, LLC, and the defendant William Backus Hospital ("Backus Hospital"), in separate motions, move to strike counts nine and eight, respectively, of the plaintiff's complaint.
FACTS
The facts as alleged in the plaintiff's September 6, 2002 complaint are as follows. The plaintiff brings this action as the executrix of the estate of her late husband, John Desjardins, and in her individual capacity. The plaintiff and her husband were married for forty-three years until his death on April 26, 2000, which was caused by a fall down a flight of stairs on April 18, 2000, and the subsequent medical malpractice of the defendants. After falling down the stairs, the decedent was transported via ambulance to the Backus Hospital where he was treated in the emergency room and admitted with a diagnosis of bifrontal subdural hematoma, right temporal hematoma and subarachnoid hemorrhage. During the course of his stay at the hospital, the defendants amid their agents were negligent and careless, breaching the prevailing standard of care, in one or more of the following ways in that they: (1) failed to perform adequate diagnostic testing to properly monitor the condition of the decedent; (2) failed to perform adequate intracranial pressure monitoring; (3) were unable to rationally administer Lasix and Manitol due to the absence of intracranial pressure monitoring; (4) failed to properly assess intake and output of fluids, thereby compromising the effectiveness of the treatment and safety of the dehydration treatment of Manitol and Lasix; (5) failed to obtain informed consent from John Desjardins and/or his duly authorized representative regarding the decision of the defendants to not perform intracranial pressure monitoring at anytime; (6) failed to obtain informed consent from John Desjardins and/or his duly authorized representative regarding surgery on the decedent after he was intubated and prior to his continued deterioration; (7) lost the chance of the benefit of surgical treatment after the decedent was intubated and prior to his continued deterioration; and (8) failed to advise the decedent and/or his duly authorized representative regarding intracranial pressure monitoring at any time, and/or surgical intervention after the decedent was intubated and prior to his continued deterioration.
The plaintiff further alleges that the defendants negligently and carelessly inflicted emotional distress upon her by performing this conduct in her presence, causing her severe emotional distress and mental anguish.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). A motion to strike "may be used to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Citation omitted; internal quotation marks omitted.) Condon v. Guardiani, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 95 0052203 (April 16, 1996, Skolnick, J.); see also Devalle v. Goggins, Docket No. CV 95 0128043 (October 11, 1996, Peck, J.) ( 18 Conn.L.Rptr. 32). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771-72, 802 A.2d 44 (2000). "It is elementary that such a motion must rely wholly upon the factual allegations of the pleading addressed and may not contain affirmative factual assertions which could only be proved by evidence." State v. Bashura, 37 Conn. Sup. 745, 748, 436 A.2d 785 (1981). "A trial court in passing upon a motion to strike should not consider grounds other than those specified." Meredith v. Police Commission, 182 Conn. 138, 140-41, 438 A.2d 27 (1980).
The movants both argue that Connecticut does not recognize bystander claims for negligent infliction of emotional distress in the context of a medical malpractice claim. Both memorandums in support of the motions to strike, argue that Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988), prohibits the bringing of bystander emotional distress claims in a medical malpractice setting. Backus Hospital in its motion, however, sets forth a further ground for striking count eight of the complaint: if this court does find that bystander emotional distress claims are permitted in medical malpractice actions, the plaintiff has not sufficiently alleged the required elements as set forth in Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996). The other movants make no such argument in their motion or their memorandum.
The plaintiff, in its objection and memorandum of law, argues that Connecticut does recognize claims for bystander emotional distress in the medical malpractice context provided that the requirements of Clohessy are met.
Our Supreme Court has not decided this issue and the superior courts are split as to whether Connecticut recognizes claims for bystander emotional distress. This court, however, has addressed this issue twice in recent years, Vanase v. State, Superior Court, judicial district of New London, Docket No. CV 00 0554764 (February 1, 2001, Hurley, J.T.R.) ( 28 Conn.L.Rptr. 665), Drew v. Backus Hospital, Superior Court, judicial district of New London, Docket No. CV 99 0550724 (September 30, 1999, Hurley, J.T.R.) ( 25 Conn.L.Rptr. 534), and has held that Connecticut does recognize bystander claims for emotional distress in the medical malpractice setting if the plaintiff sufficiently pleads the elements as required by Clohessy.
In Drew, this court was confronted with the defendant's motion to strike the plaintiff's claim for negligent infliction of emotional distress upon a bystander in a medical malpractice context. The plaintiffs brought an action individually and on behalf of the estate of their deceased daughter against William Backus Hospital and Joseph Newell, M.D. The complaint alleged, inter alia, that the defendants negligently inflicted emotional distress upon each of the parents as a result of their negligent treatment of the decedent. The decedent, an eighteen-month old infant, was brought to the emergency room at William Backus Hospital because she had been vomiting, irritable and suffering from fever and pain. While at the hospital, the decedent experienced cardiopulmonary arrest and Newell and other hospital members unsuccessfully attempted for an hour and twenty minutes to revive the decedent. The plaintiffs alleged that they witnessed either all, or most of the decedent's treatment and subsequent attempted resuscitation. As a result of this experience, the plaintiffs each asserted, inter alia, claims for negligent infliction of emotional distress against each defendant. Drew v. Backus Hospital, supra.
The defendants in Drew separately moved to strike the counts of the complaint that alleged negligent infliction of emotional distress. The defendants assert two grounds for their motions to strike: (1) Connecticut did not recognize a cause of action for negligent infliction of emotional distress to a bystander in the medical malpractice context; and (2) alternatively, even if such a cause of action did exist, the plaintiffs' allegations were legally insufficient to state a valid claim. Drew v. Backus Hospital, supra.
In Drew, this court undertook a detailed analysis of both Clohessy and Maloney and the historical underpinnings of those cases (an analysis which need not be repeated here), at the conclusion of which this court held that Connecticut did recognize negligent infliction of emotional distress as a valid claim in the medical malpractice context. This court adopts the reasoning in Drew in so much as it sets forth this court's rationale for that holding.
"Although I continue to believe there are instances where the rule in Maloney should apply; see, e.g., Colon v. Barczak, Superior Court, judicial district of New London at New London, Docket No. 537729 (July 17, 1997, Hurley, J.) ( 20 Conn.L.Rptr. 121) (granting defendants summary judgment where plaintiff-bystander alleged he witnessed gradual deterioration of wife's condition over course of two weeks); this court agrees with the line of cases which hold that Clohessy has firmly established a cause of action for bystander emotional distress in Connecticut regardless of whether the action arises from medical malpractice. In this court's view, Connecticut now offers a remedy to any bystander in any context who can satisfy the four Clohessy factors. `Much is made of the fact that while Clohessy v. Bachelor overruled the case of Strazza v. McKittrick [ 146 Conn. 714, 156 A.2d 149 (1959] . . . the Clohessy court declined to overrule Maloney, although the Clohessy opinion discusses Strazza and Maloney in the same context.' Bond v. Kalla, [Superior Court, judicial district of New London, Docket No. CV 970543295 (April 13, 1998, Koletsky, J.) ( 21 Conn.L.Rptr. 6820]. However, it was simply not necessary to overrule Maloney because Maloney's holding is not inconsistent with Clohessy. That is, as the trial court found, and the Supreme Court upheld in Maloney the plaintiff did not allege that she suffered an injury contemporaneous with her perception of the alleged medical malpractice of the defendants. Maloney, supra, 208 Conn. 396. It is clear that even under the Clohessy test, the plaintiff in Maloney would have failed to state a valid claim for bystander emotional distress." Drew v. Backus Hospital, supra.
The court is not persuaded to part from this holding by any of the arguments in the briefs. This court holds that Connecticut does recognize negligent infliction of emotional distress upon a bystander in a medical malpractice context as a valid claim. Furthermore, the motion to strike brought by the defendants David Colletti, M.D., Thomas Bell, M.D. and Chelsea Clinic, LLC, sets forth no other grounds on which the motion might be granted. "A trial court in passing upon a motion to strike should not consider grounds other than those specified." Meredith v. Police Commission, 182 Conn. 138, 140-41, 438 A.2d 27 (1980). Therefore, because the court is limited to considering the ground set forth in their motion to strike, which this court has found to be insufficient, this court denies the motion to strike count nine brought by the defendants David Colletti, M.D., Thomas Bell, M.D. and Chelsea Clinic, LLC.
The defendant, Backus Hospital, however, sets forth an additional ground in its motion to strike. "[I]f the court finds that bystander emotional distress claims are permitted in medical malpractice actions . . . count eight should still. be stricken as the plaintiffs have failed to sufficiently allege the required elements as set forth in Clohessy . . ." (Defendant Backus' Motion to Strike, p. 2.)
In Drew, this court held that the plaintiffs sufficiently pled the elements required by Clohessy. In contrast, this court held in Vanase v. State, supra, that although Connecticut did recognize bystander emotional distress claims, the plaintiff did not sufficiently plead her claim.
In Vanase, the plaintiff was the mother of a newborn baby who died while under the care of the defendant, John Dempsey Hospital. The plaintiff was admitted to the hospital as a pre-term gestation maternity patient. The plaintiff claimed that the hospital, its employees, and agents, committed various acts of medical malpractice on the plaintiff's child, both before and after his birth, and that these acts of negligence lead to a brain injury which ultimately caused the child's death. In the third count of the complaint, the plaintiff attempted to state a claim for bystander emotional distress. This count alleged that the child was subjected to excruciating pain and suffering which was constantly witnessed by the plaintiff. The count also alleged that the plaintiff repeatedly complained to the employees of the hospital about the inadequate care her child was receiving and about the pain both she and her child were experiencing, yet the defendant did not respond. The plaintiff further alleged that she reported decreased fetal movement to the staff and that the hospital did not act on this information. Lastly, the plaintiff alleged that the defendant was negligent because it did not act to deliver the child until fourteen hours after it was noticed there was no fetal breathing. Vanase v. State, supra.
As a result of these actions and other alleged negligent acts that occurred after the child's birth, the plaintiff alleged that she had suffered extreme emotional distress. The plaintiff alleged that she experienced feelings of apprehension for the safety and well-being of her son and herself from the time she was admitted to the hospital until the child's death seventeen days later. The plaintiff also alleged that she suffered severe emotional distress as a result of anticipating and observing the defendant's failure to adequately treat her son, and as a direct result of witnessing her son's deteriorating health conditions. Lastly, the plaintiff alleged that she will never recover from the severe mental and emotional distress she suffered from witnessing the defendant's actions, her son's sickness and his ultimate death.
Under Clohessy, a bystander can recover if: "(1) [she] is closely related to the injury victim, such as the parent or the sibling of the victim; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim's condition or location; (3) the injury to the victim must be substantial, resulting in his or her death or serious physical injury; and (4) the bystander's emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response." Clohessy v. Bachelor, supra, 237 Conn. 56.
In holding that the plaintiff in Vanase did not sufficiently plead a claim for bystander emotional distress, this court stated: "In Clohessy, the Connecticut Supreme Court restated its concern about granting relief to a bystander in a medical malpractice action, noting that `there is generally no significant observable sudden traumatic event by which the effect upon the bystander can be judged . . .' Clohessy v. Bachelor, supra, 237 Conn. 44. To satisfy those concerns, this court interprets Clohessy to require a plaintiff to make two allegations in order to show "contemporaneous sensory perception of the event or conduct which causes the injury" to the third party. Clohessy v. Bachelor, supra, 237 Conn. 56. First, the bystander must allege actual perception of the distinct event or conduct that caused the immediate severe or life threatening harm to the third party. Second, the bystander must allege that this observation immediately caused them to suffer severe emotional distress. See Clohessy v. Bachelor, supra, 237 Conn. 52-53. This court believes that this test is sufficient to meet the concerns of the Clohessy court with respect to the etiology of emotional injuries because it allows a bystander to recover for emotional distress, in a medical malpractice action, only where there is a sudden event or act of medical malpractice which injures a third party. This limitation also allows a trier of fact to determine whether there is an emotional injury inflicted on a bystander that is severe enough to cause continuing damage to them and, yet, is unrelated to the overall grief, loss, or pain that the bystander may feel solely because they are related to the victim and watching the victim suffer in a medical environment." (Emphasis added.) Vanase v. State, supra.
After applying the law to the facts of this case, this court finds that the plaintiff has failed to allege a significant event or conduct leading to the plaintiff's immediate emotional distress, and, thus, the plaintiff has failed to state a cause of action for negligent infliction of emotional distress. The plaintiff has not sufficiently alleged that her emotional injury was caused by the contemporaneous sensory perception of the event of conduct that caused the injury as required by the second prong of Clohessy. Nor has she sufficiently alleged that she suffered immediate emotional distress as a result of witnessing a distinct, insular act of negligence by the defendant. Therefore, the court grants defendant Backus Hospital's motion to strike count eight of the plaintiff's complaint.
CONCLUSION
The motion to strike count nine of the plaintiff's complaint, brought by the defendants David Colletti, M.D., Thomas Bell, M.D. and Chelsea Clinic, LLC, is denied. The motion to strike count eight of the plaintiff's complaint, brought by the defendant Backus Hospital is granted.
D. Michael Hurley, JTR