Opinion
No. CV 09-5028884 S
August 31, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#103)
Facts and Procedural History
This action arises from injuries allegedly sustained by Julian Hernandez and his mother, Aurora Hernandez, due to the negligence of the defendant, Yale New Haven Hospital. Count one of the complaint alleges that Julian Hernandez was negligently treated by the defendant. Count two alleges that the plaintiff, Aurora Hernandez, suffered economic damages as a result of her son's injuries and count three alleges that the defendant is liable to the plaintiff for bystander emotional distress. On June 23, 2009, the defendant filed a motion to strike counts two and three. The plaintiff filed a memorandum in opposition to the motion on October 21, 2009. The defendant filed its reply on December 3, 2009.
The parties appeared for oral argument at short calendar on August 2, 2010. At oral argument, the defendant withdrew his motion to strike count two. The parties agreed that the plaintiff's recovery under this count is predicated upon and limited to the damages allowed by General Statutes § 52-204, which states: "In any civil action arising out of personal injury or property damage, as a result of which personal injury or property damage the husband or parent of the plaintiff has made or will be compelled to make expenditures or has contracted indebtedness, the amount of such expenditures or indebtedness may be recovered by the plaintiff, provided a recovery by the plaintiff shall be a bar to any claim by such husband or parent, except in an action in which the husband or parent is a defendant." As such, this memorandum of decision will only address the legal sufficiency of count three.
Discussion
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) CT Page 17159 Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike is the proper procedural vehicle . . . to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Blue v. Renaissance Alliance, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4001949 (May 12, 2006, Shluger, J.).
The defendant argues that count three should be stricken because a cause of action for bystander emotional distress in the context of a medical malpractice action is not recognized under Connecticut law. Moreover, the defendant argues that even if Connecticut recognized a cause of action for bystander emotional distress in the context of a medical malpractice action, the plaintiff failed to state a claim pursuant to the four-part test enunciated by the Supreme Court in Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996). The plaintiff counters that Clohessy established a cause of action for bystander emotional distress in Connecticut regardless of whether the underlying negligence has arisen in the medical malpractice context. Resolution of this motion, therefore, depends on whether a cause of action for bystander emotional distress should be recognized in the medical malpractice context and if so, whether the plaintiff's allegations satisfy the Clohessy test.
A Bystander Emotional Distress under Connecticut Law
The Clohessy court discussed the evolution of bystander emotional distress in Connecticut by examining three pivotal cases: Strazza v. McKittrick, 146 Conn. 714, 156 A.2d 149 (1959); Amodio v. Cunningham, 182 Conn. 80, 438 A.2d 6 (1980); and Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988). The court finds the Clohessy court's analysis of these decisions instructive and thus, repeats it below.
"In Strazza, the defendant negligently drove his truck onto the porch of the plaintiff's house. The impact shook the house, causing the plaintiff to drop the dishes [she was holding], lose her balance, and lean against the sink . . . The plaintiff screamed with fright and became hysterical, thinking of disaster by earthquake . . . Sometime after the impact, her husband inquired about [their seven year old child], and the plaintiff, thinking that the boy had been on the porch, became fearful that he had been injured. This fear aroused a new anxiety . . . The plaintiff's only medical treatment was for a nervous condition that resulted from the fear of injury to her child. The court concluded that the plaintiff, because she was within the range of ordinary danger, could recover damages for the emotional distress she experienced as a result of her being put in fear for her own safety, even though she had sustained no consequential physical injury . . . In reaching its conclusion, the court relied on Orlo v. Connecticut Co., 128 Conn. 231, 239, 21 A.2d 402 (1941), which held that where it is proven that negligence proximately caused fright or shock [with respect to the person's own safety] in one who is within the range of ordinary physical danger from that negligence, and this in turn produced injuries such as would be elements of damage had a bodily injury been suffered, the injured party is entitled to recover." (Citations omitted; internal quotation marks omitted.) Clohessy v. Bachelor, supra, 237 Conn. 34-35.
"In Strazza, however, the court did not permit the plaintiff to recover for the fright she had suffered from mistakenly believing that her child had been on the porch and had been injured. Relying upon the decisions of the courts of other states prior to 1959, which universally denied recovery for bystander emotional distress the court held that the plaintiff cannot recover for injuries occasioned by fear of threatened harm or injury to the person or property of another . . . Such injuries are too remote in the chain of causation to permit recovery . . . Even where a plaintiff has suffered physical injury in the accident, there can be no recovery for nervous shock and mental anguish caused by the sight of injury or threatened harm to another." (Internal quotation marks omitted.) Id., 35.
"In Amodio, the plaintiff mother sought damages for emotional distress sustained as a result of the defendant physician's alleged medical malpractice that she claimed caused the death of her daughter. The plaintiff urged this court to recognize a cause of action for bystander emotional distress as set forth in Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal.Rptr. 72 (1968). The California Supreme Court in Dillon, relying on established principles of negligence, focused on foreseeability, and held that "since the chief element in determining whether [a] defendant owes a duty or an obligation to [a] plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case. Because it is inherently intertwined with foreseeability such duty or obligation must necessarily be adjudicated only upon a case-by-case basis . . . The Dillon court then set forth three factors to consider in determining whether the emotional injury to the bystander is reasonably foreseeable: (1) Whether [the] plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon [the] plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether [the] plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship." (Citation omitted; internal quotation marks omitted.) Id., 35-36.
"The Dillon court went on to state that the evaluation of these factors will indicate the degree of the defendant's foreseeability: obviously [the] defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so. Similarly, the degree of foreseeability of the third person's injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. The defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone distant from the accident will suffer more than a temporary emotional reaction. All these elements, of course, shade into each other; the fixing of obligation, intimately tied into the facts, depends upon each case." (Internal quotation marks omitted.) Id., 36.
"The court in Amodio recognized that a growing number of jurisdictions, beginning in 1968 with the California decision in Dillon . . . have recently recognized a cause of action for emotional distress in favor of a bystander to the negligently caused injury of another party . . . The court also observed that under Dillon the requirement of sensory and contemporaneous observance does not require a visual perception of the impact although it does require that the plaintiff bystander otherwise apprehend the event . . . Without rejecting the foreseeability approach, the Amodio court held that the plaintiff mother could not recover under Dillon because she did not have a contemporaneous sensory perception of the doctor's acts of negligence. Merely observing the consequences of the defendant's negligence towards another person without perceiving the actual negligent behavior, however, is insufficient to maintain a cause of action for emotional distress to a bystander." (Citations omitted; internal quotation marks omitted.) Id., 36-37.
"This court again addressed the question of bystander emotional distress based upon medical malpractice in Maloney v. Conroy, supra, 208 Conn. 392, where the tort victim was the plaintiff's mother. After Amodio, but before Maloney was decided, however, California, in Ochoa v. Superior Court, 39 Cal.3d 159, 703 P.2d 1, 216 Cal. Rptr. 661 (1985), relaxed Dillon's contemporaneous sensory perception requirement in the context of a medical malpractice case. In Ochoa, as in Maloney, the plaintiff observed the effects of the medical malpractice over a period of time. The Supreme Court of California concluded that the sudden occurrence requirement is an unwarranted restriction on the Dillon guidelines . . . and that the contemporaneous perception of the negligent act requirement for a medical malpractice case was satisfied when there is observation of the defendant's conduct and the child's injury and contemporaneous awareness the defendant's conduct or lack thereof is causing harm to the child." (Citation omitted; internal quotation marks omitted.) Id., 37.
"In Maloney, this court, again leaving the door open for the foreseeability rule as set forth in Dillon, rejected the California Supreme Court's reasoning in Ochoa. Whatever may be the situation in other contexts where bystander emotional disturbance claims arise, we are convinced that, with respect to such claims arising from malpractice on another person, we should return to the position we articulated in Strazza that there can be no recovery for nervous shock and mental anguish caused by the sight of injury or threatened harm to another." (Internal quotation marks omitted.) Id., 37-38.
After analyzing these three decisions, the Clohessy court concluded: "We believe the time is ripe to recognize a cause of action for bystander emotional distress. Under certain circumstances . . . we conclude that a tortfeasor may owe a legal duty to a bystander. Consequently, a tortfeasor who breaches that duty through negligent conduct may be liable for a bystander's emotional distress proximately caused by that conduct. Accordingly, we now overrule Strazza to the extent that it conflicts with our opinion in this case." Id., 46. "[A] bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions: (1) he or 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 of 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." Id., 56.
After Clohessy, the Supreme Court rendered its opinion in Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 823 A.2d 1202 (2003). In Murillo, the plaintiff claimed to have been injured in a fall after observing a medical procedure performed on her sister. See id., 476. The court affirmed the trial court's finding that the defendants, an ambulance company, a hospital and their respective employees, owed no duty to the plaintiff. See id. In reaching this conclusion, the court analyzed "four factors to be considered in determining the extent of a legal duty as a matter of public policy: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." Id., 480.
In regard to the first and second factors, the court relied upon Maloney in its analysis. See id., 480-81. "The reasonableness of [the expectations of the plaintiff, a bystander; her sister, the defendants' patient; and the defendants] is underscored by a decision in which this court rejected a claim for negligent infliction of emotional distress by a plaintiff who had observed allegedly negligent medical treatment of her mother . . . In Maloney, the court commented that medical judgments as to the appropriate treatment of a patient ought not to be influenced by the concern that a visitor may become upset from observing such treatment . . . The focus of the concern of medical care practitioners should be upon the patient and any diversion of attention or resources to accommodate the sensitivities of others is bound to detract from that devoted to patients." Id. Furthermore, "[a]s a matter of public policy, and as we previously stated in Maloney, the law should encourage medical care providers, such as the defendants, to devote their efforts to their patients, and not be obligated to divert their attention to the possible consequences to bystanders of medical treatment of the patient." (Citations omitted.) Id., 481.
In light of Maloney, Clohessy and Murillo, there exists "a split of authority among the judges of the Superior Court as to whether a claim for bystander emotional distress may be brought in the context of a medical malpractice action. One line of cases follows the Supreme Court's decision in Maloney, holding that bystander emotional distress claims are not permitted in medical malpractice actions . . . Other judges of the Superior Court have held that Clohessy permits claims for bystander emotional distress to apply to all situations, including medical malpractice, provided that the rule of reasonable foreseeability, as limited by four factual criteria, has been met." (Internal quotation marks omitted.) Burnette v. Boland, Superior Court, judicial district of New London, Docket No. CV 08 5009111 (April 23, 2010, Martin, J.).
An overwhelming majority of decisions of the Superior Court conclude that Maloney is still good law, and that Connecticut does not recognize a cause of action for bystander emotional distress in a medical malpractice case. See Wales v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 08 5025413 (June 22, 2009, Keegan, J.); Viagrande v. Rocco, Superior Court, judicial district of New Britain, Docket No. CV 08 5006536 (August 11, 2008, Gilligan, J.); Meister v. Windham Community Memorial Hospital, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 03 0082430 (April 27, 2004, Sferrazza, J.) ( 36 Conn. L. Rptr. 876).
Judges of the Superior Court are also persuaded that because Maloney was cited favorably in Murillo, it lends credence to the view that Maloney was not overruled by Clohessy. See Calabrese v. Connecticut Hospice, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 09 5012012 (June 30, 2009, Sheedy, J.) ( 48 Conn. L. Rptr. 119); Wales v. Yale New Haven Hospital, supra, Superior Court, Docket No. CV 08 5025413; Seda v. Maxim Healthcare Services, Superior Court, judicial district of Hartford, Docket No. CV 07 5010811 (April 8, 2008, Elgo, J.); Estaba v. Yale New Haven Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 06 5005503 (January 10, 2008, Blawie, J.) ( 44 Conn. L. Rptr. 774).
Despite this majority, the court, after a careful review of Maloney, Murillo and Clohessy, is persuaded that Clohessy established a cause of action for bystander emotional distress in any context, so long as the plaintiff's allegations sufficiently satisfy the rule of reasonable foreseeability. This position has some support amongst decisions of the Superior Court. See Johnson v. Edelstein, Superior Court, judicial district of Hartford, Docket No. CV 04 0834151 (August 31, 2005, Hale, J.T.R.) ( 39 Conn. L. Rptr. 881); Desjardins v. William Backus Hospital, Superior Court, judicial district of New London, Docket No. 562748 (April 25, 2003, Hurley, J.T.R.) ( 34 Conn. L. Rptr. 515); Pollard v. Norwalk Hospital, Superior Court, judicial district of Fairfield, Docket No. CV 98 0355354 (February 18, 1999, Skolnick, J.); Blanchette v. Desper, Superior Court, judicial district of Waterbury, Docket No. 144050 (October 19, 1998, Shortall, J.) ( 23 Conn. L. Rptr. 321); Rios v. Kozlowski, Superior Court, judicial district of Hartford, Docket No. 576510 (August 24, 1998, Teller, J.) ( 22 Conn. L. Rptr. 564); Bond v. Kalla, Superior Court, judicial district of New London, Docket No. 543295 (April 13, 1998, Koletsky, J.) ( 21 Conn. L. Rptr. 682).
" Clohessy has firmly established a cause of action for bystander emotional distress in Connecticut regardless of whether the action arises from medical malpractice . . . 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 . . . the Clohessy court declined to overrule Maloney, although the Clohessy opinion discusses Strazza and Maloney in the same context . . . However, it was simply not necessary to overrule Maloney because Maloney's holding is not inconsistent with Clohessy . . . [T]he 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 . . . 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." (Citations omitted; internal quotation marks omitted.) Drew v. William Backus Hospital, Superior Court, judicial district of New London, Docket No. 550724 (September 30, 1999, Hurley, J.) ( 25 Conn. L. Rptr. 534, 536), aff'd, 77 Conn.App. 645, 825 A.2d 810, cert. granted, 265 Conn. 909, 831 A.2d 249 (2003).
The Appellate Court in Drew noted: "Having resolved that claim as we did, we, like the trial court, have no occasion on which to opine as to whether a claim for bystander emotional distress based on medical malpractice is legally cognizable." 77 Conn.App. 670, n. 9. Furthermore, the appeal to the Supreme Court was withdrawn on December 22, 2003.
The trial court in Drew continued: "This court recognizes how difficult it is for a plaintiff to successfully allege and prove a cause of action for bystander emotional distress in the medical malpractice context. As the Clohessy Court states, `there generally is no significant observable traumatic event for a plaintiff to contemporaneously observe and thereby suffer emotional distress.' . . . However, it is not hard to envision particular instances where a plaintiff, who is closely related to a medical patient, actually observes an act of medical malpractice and contemporaneously suffers emotional distress as a result. As an extreme example, suppose a woman accompanies her husband in an emergency room and watches as the doctors attempt to apply a heart defibrillator in order to prevent the patient from dying of a heart attack. Negligently, however, the doctors misapply the defibrillator and, consequently, electrocute and kill the patient. If the plaintiff has observed this entire tragic episode, and contemporaneously suffers serious emotional distress, what good reason is there for denying the plaintiff recovery for her emotional distress?" Id., 537.
"During the pre- Clohessy era, it is accepted that the plaintiff in the above situation would have no remedy for her emotional distress. Some trial courts still believe, however, that even after Clohessy there would not be a valid claim for bystander emotional distress in the above situation simply because the context entails medical malpractice. This court chooses not to read Maloney as a blanket prohibition on all bystander claims involving medical malpractice . . . In light of Clohessy, this court recognizes Maloney for disclosing and analyzing the weaknesses of a bystander claim for emotional distress under the precise circumstances of that case. However, if there are circumstances in the medical malpractice context where a plaintiff can allege and prove all four Clohessy criteria, then recovery should not be denied." (Citation omitted.) Id. The court agrees with this analysis and additionally, finds that Murillo is inapposite to the present case. In Murillo, the plaintiff did not allege medical negligence on the part of the defendants, rather she alleged that her observation of a medical procedure performed on her sister caused her to faint and sustain injuries.
Given the court's view that Clohessy established a cause of action for bystander emotional distress in any context, the court must next determine whether the facts alleged in the present case satisfy the four-part test enunciated in Clohessy.
B Plaintiff's Allegations Under the Clohessy Test
The defendant contends that the plaintiff fails to satisfy the second element of the Clohessy test, that the emotional injury be caused by the contemporaneous sensory perception of the event or conduct that causes the injury. The Supreme Court has stated that "[m]erely observing the consequences of the defendant's negligence towards another person without perceiving the actual negligent behavior, however, is insufficient to maintain a cause of action for emotional distress to a bystander." Amodio v. Cunningham, supra, 182 Conn. 90. In Amodio, the plaintiff mother contacted the defendant doctors when her daughter began having breathing difficulty. See id., 83. The defendants prescribed medication, and when the child's condition worsened, they examined, but negligently released her without further treatment. Thereafter, the daughter's heart stopped during an episode at home during which mother had to administer mouth-to-mouth resuscitation. The child was rushed to the hospital where, two days later, she died after the plaintiff decided to discontinue extraordinary life-support methods. See id.
The mother brought a medical malpractice complaint against the defendants, in which she alleged that she suffered emotional distress as a result of witnessing her daughter's deterioration and death. See id., 84. The trial court granted the defendants' motion to strike this count and the Supreme Court affirmed. The Supreme Court reasoned that the allegations of the complaint indicated that the injuries suffered by the child became manifest a considerable period of time after the alleged negligence of the doctors occurred. See id., 91-93.
In Maloney v. Conroy, supra, 208 Conn. 402, the Supreme Court maintained this position given that the facts presented were strikingly similar to those before the court in Amodio. In Maloney, the plaintiff, who lived with her mother until her mother's death, was present at her bedside as her mother was being treated by the defendants. See id., 394. Following an operation, the plaintiff observed her mother's health deteriorate under the treatment of the defendants and culminate in death. The plaintiff alleged that the suffering and death of the mother were caused by the negligence of the defendants in failing to care for her in a reasonably competent manner, including their failure to heed several requests of the plaintiff that they investigate various symptoms she had observed relating to her mother's deteriorating condition. See id.
In rejecting the plaintiff's emotional distress claim, the court articulated several public policy concerns. "To allow recovery by one, like the plaintiff, who has been more or less constantly at the bedside of the malpractice victim during the period of treatment is likely to cause hospitals and other medical treatment facilities to curtail substantially the extent of visitation of patients that is presently permitted. Such a response by providers of medical care to the risk of liability to visitors whose sensitivity and relationship to the patient may result in emotional disturbances from observing treatment of loved ones that they view as improper would seem inevitable if such claims were to become more frequent. The restriction of current liberal practices with respect to patient visitation in order to reduce the incidence of bystander emotional disturbance claims would be a regrettable social consequence of enlarging the right to recover for emotional disturbances based upon the impact of medical malpractice upon bystanders." (Internal quotation marks omitted.) Id., 402-03.
The court continued: "Another undesirable sequel that is likely to follow upon our creation of a duty to a patient's visitors or relatives is that medical personnel may feel obligated to respond to the usually uninformed complaints of visitors concerning the treatment of patients more for fear of stimulating emotional disturbances upon the part of the visitors than because of the merits of the complaint. Medical judgments as to the appropriate treatment of a patient ought not to be influenced by the concern that a visitor may become upset from observing such treatment or from the failure to follow some notion of the visitor as to care of the patient. The focus of the concern of medical care practitioners should be upon the patient and any diversion of attention or resources to accommodate the sensitivities of others is bound to detract from that devoted to patients . . . Obviously, if the attention of medical practitioners is properly called to some deficiency in the treatment of a patient by anyone, that circumstance may be significant in deciding whether there has been malpractice. It is, however, the consequences to the patient, and not to other persons, of deviations from the appropriate standard of medical care that should be the central concern of medical practitioners. In the case before us, if the defendants should have responded to the various requests the plaintiff alleges she made about her mother's condition, they should be held liable for the consequences of their neglect to the patient or her estate rather than to the plaintiff. It is a fundamental assumption of jurisprudence that rules of law have an impact on the manner in which society conducts its affairs. We are persuaded that the recognition of a cause of action under the circumstances pleaded in the complaint would have consequences detrimental to the community as a whole that outweigh the benefit a few hypersensitive individuals would be likely to derive from permitting such an action to proceed." Id., 403. (Emphasis added.)
Subsequently, the Superior Court in Desjardins v. William Backus Hospital, supra, 34 Conn. L. Rptr. 518, closely examined the contemporaneous sensory perception element of the Clohessy test. "[T]his 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 . . . 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." Id.; see also 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).
The Desjardins court continued: "[T]his 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." (Citations omitted; internal quotation marks omitted.) Id., 518.
In Desjardins, the plaintiff, the decedent's wife, alleged that her husband died a week after falling down a flight of stairs due to the medical malpractice of the defendants. See id., 515. After falling down the stairs, the decedent was transported via ambulance to the 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 week long stay at the hospital, the plaintiff alleged that the defendants were negligent and careless by failing to perform adequate diagnostic testing, including intracranial pressure monitoring, to properly assess and treat the decedent's condition. Id.
Based upon these allegations, the court granted the defendants' motion to strike the plaintiff's emotional distress claim. "[T]he 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 or 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." Id., 518.
In the present case, the plaintiff's revised complaint, filed August 3, 2009, alleges that she arrived at the hospital with her son on May 14, 2007. From May 14 until May 20, Julian received medicine and nutrition intravenously. On May 18, the plaintiff alleges that an intravenous line was negligently put into Julian's left hand. On the evening of May 19 through the morning of May 20, the plaintiff was physically present at her son's bedside. On the morning of May 20, the plaintiff observed that her son's left thumb and index finger had turned blue and called the attention to the defendant's nursing staff. The plaintiff observed the defendant's agents and employees as they unwrapped Julian's hand and discovered that the hand was cold, mottled purple, swollen and pulseless. As a result, Julian required emergency surgery, which the plaintiff consented to and consequently, watched as he was taken into the operating room. Subsequent surgeries during Julian's in-patient stay at the hospital resulted in the partial amputation of his hand.
These allegations demonstrate that the plaintiff did not witness the alleged act of medical negligence, the improper placement of the intravenous line into her son's left arm. Rather, she witnessed only the effects of this alleged negligence, including the discoloration of Julian's hand, which were discovered days after the intravenous line was put in. There is simply no precedent for the court to conclude that the plaintiff's allegations are legally sufficient to support her claim for bystander emotional distress. Connecticut courts have refused to expand this cause of action to situations where the plaintiff witnesses the deterioration of the patient over a period of time or observes the effects of the alleged medical negligence some time after the negligent act has occurred. The court is of the opinion that recovery for bystander emotional distress in the medical malpractice context is limited to circumstances such as those described by the trial court in Drew, where a close relative actually witnesses a significant event or act of medical negligence and its effect upon the patient, and as a result, contemporaneously experiences severe emotional distress. Additionally, the court's decision is supported by strong public policy concerns, including society's interest in liberal patient visitation and in sound, undistracted medical judgment of healthcare professionals.
In sum, the court finds that the Clohessy test applies to the plaintiff's claim of bystander emotional distress, which arises in the context of a medical malpractice action. The court finds, however, that the plaintiff's allegations fail to satisfy the Clohessy test because she did not observe the actual act of medical negligence. In other words, as set forth in Clohessy, "the plaintiff has failed to allege that her emotional injury was caused by the contemporaneous sensory perception of the event or conduct that cause[d] the injury." Clohessy, supra, 237 Conn. 56. The plaintiff in this case "[m]erely observe[d] the consequences of the defendant's [alleged] negligence towards [Julian] without perceiving the actual negligent behavior, [which] is insufficient to maintain a cause of action for emotional distress to a bystander." Id., 36-37. (quoting Amodio v. Cunningham, supra.)
Conclusion
For all of the foregoing reasons, the defendant's motion to strike count three is hereby granted.