Opinion
No. CV 02 0468647
August 4, 2003
MEMORANDUM OF DECISION RE MOTION TO STRIKE #132
On September 4, 2002, the plaintiffs, Rachel Hutchinson and Lee Hutchinson, individually and as parents and next friends of their infant son, Cody Hutchinson, filed a twelve-count complaint against the defendants, Denise Tonzola, a physician specializing in obstetrics and gynecology, Greater New Haven OB-GYN Group, P.C. and Yale-New Haven Hospital. The gravamen of the complaint is that the defendants' negligence in the course of the pregnancy, labor and delivery of the infant plaintiff caused the plaintiffs' injuries.
The plaintiffs all allege negligence against Tonzola and the OB-GYN Group in count one, while in count three they seek reimbursement for medical expenses incurred for the care of the infant plaintiff against the same defendants. Counts two and four, brought on behalf of the infant plaintiff against Yale-New Haven Hospital, allege negligence and reimbursement for medical expenses, respectively. Counts five and seven, brought by the plaintiff parents against Tonzola and the OB-GYN Group, allege bystander emotional distress, while counts six and eight allege the same claim against Yale-New Haven Hospital. Count nine, brought by the plaintiff mother, alleges negligent infliction of emotional distress against Tonzola and the OB-GYN Group, and the same claim is brought against Yale-New Haven Hospital in count ten. In count eleven, the plaintiff father alleges a loss of consortium against Tonzola and the OB-GYN Group, and count twelve alleges the same against Yale-New Haven Hospital.
On April 8, 2003, the defendants filed a motion to strike counts five, six, seven, eight, eleven and twelve, along with a memorandum of law. On April 22, 2003, the plaintiffs filed a memorandum of law in opposition to the defendants' motion to strike, to which the defendants filed a reply on April 29, 2003.
"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 . . . A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . [The court] take[s] the facts to be those alleged in the complaint . . . and . . . construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
The defendants move to strike counts five, six, seven and eight, claims for bystander emotional distress on the ground that these counts are legally insufficient. Counts five and six are brought by the plaintiff mother, and counts seven and eight are brought by the plaintiff father. The defendants argue that the bystander emotional distress claims should be stricken because, based on the holding in Maloney v. Conroy, CT Page 9025 208 Conn. 392, 545 A.2d 1059 (1988), that Connecticut does not recognize a cause of action for bystander emotional distress in the context of a medical malpractice action. The defendants further argue that Maloney is controlling despite the court's subsequent decision in Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996), which recognized a cause of action for bystander emotional distress in a non-medical malpractice action. The defendants contend, that " Clohessy did not overrule Maloney, but simply recognized bystander [emotional] distress claims in other contexts." (Defendants' Memorandum of Law in Support of Their Motion to Strike, p. 2.) Furthermore, the defendants argue that a majority of Superior Court cases have held that there can be no cause of action for bystander emotional distress in the medical malpractice context.
The plaintiffs argue in opposition that a bystander emotional distress claim in the medical malpractice context is permitted if the four-part test set out in Clohessy is met. The plaintiffs further argue that even though there is a split of authority in the Superior Court as to whether a claim for bystander emotional distress is allowed in the medical malpractice context, "the better reasoning lies with the line of cases that do apply the Clohessy principle in any tort action meeting its four part test whether the claim is founded upon medical negligence or any other negligence." (Emphasis in original.) (Plaintiffs' Memorandum of Law in Opposition to the Motion to Strike, pp. 2-3.)
The following facts are alleged in counts five, six, seven and eight. The plaintiff mother, who was awake and alert throughout her labor and delivery, and the plaintiff father, who was present in the delivery room, knew that their unborn child was experiencing fetal distress. The plaintiff parents observed the infant plaintiff's delivery, his initial condition and resuscitation. The plaintiff parents also observed the infant plaintiff's condition and serious injuries throughout his hospitalization. Because of the defendants' negligence and the injuries to the infant plaintiff, the plaintiff parents have suffered and will continue to suffer serious emotional injuries and distress.
Paragraphs one through fifteen of count one (negligence) are incorporated, by reference, into counts five and seven. Paragraphs one through fourteen of count two (negligence) are incorporated, by reference, into counts six and eight.
The Superior Courts are split as to whether the rule in Clohessy or the rule in Maloney should be applied in the medical malpractice context. This court, however, has already addressed, and denied, the legal sufficiency of bystander emotional distress claims in medical malpractice actions in Cordero v. Optimum Home Care of Connecticut, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98 0262100 (August 27, 2002, Gilardi, J.). After careful consideration of this court's reasoning in Cordero, there is no reason for the court to deviate from its holding. Therefore, this court grants the defendants' motion to strike counts five, six, seven and eight. The defendants next move to strike counts eleven and twelve, claims of loss of consortium by the plaintiff father, on the ground that they are legally insufficient. The defendants argue that these counts should be stricken because the plaintiffs have failed to allege that the plaintiff mother suffered a physical injury.
The plaintiffs argue in opposition that Connecticut law allows for a loss of consortium claim based upon emotional injuries. The plaintiffs further argue that "[c]ertain psychological injuries are no less devastating than physical injuries, which is why `personal injury' damages are not limited only to physical injuries." (Plaintiffs' Memorandum, p. 11.)
A loss of consortium claim may be brought by either spouse "arising from a personal injury [to the other spouse] caused by the negligence of a third person . . ." Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 289, 627 A.2d 1288 (1993). In Krosky v. Bushnell Towers Condo, Superior Court, judicial district of Hartford-New Britain at Hartford, CV 92 0509549 (October 9, 1992, Walsh, J.) ( 7 C.S.C.R. 1257) ( 7 Conn.L.Rptr. 528), a wrongful discharge action, the plaintiff wife alleged loss of consortium due to breach of the implied covenant of good faith and fair dealing and infliction of emotional distress. The defendants moved to strike the loss of consortium claims on the ground that these claims are legally insufficient because the plaintiffs failed to allege a physical injury to the plaintiff husband. Id. In denying the defendants' motion to strike as to the loss of consortium claims, the court held that personal injuries means "injury to part of a person, including those parts which govern the wide range of psychological, mental and emotional activities that characterize human persons, and lend so much of their relationships with others. In short, any injury to one's emotional and mental well-being can certainly be just as much an injury to that `person' as a broken arm or leg." Id., 1258.
The following facts are alleged in counts eleven and twelve. The plaintiff father has and will in the future be deprived of consortium with his wife, the plaintiff mother, because she has suffered and continues to suffer extreme emotional distress as a result of the defendants' negligence. The extreme emotional distress allegedly suffered by the plaintiff mother comes within the definition of personal injury set forth in Krosky v. Bushnell Towers Condo. Because "personal injury," in the loss of consortium context, encompasses not only physical injuries, but emotional injuries, as well, this court denies the defendants' motion to strike counts eleven and twelve.
Paragraphs one through eighteen of count five (bystander emotional distress) and paragraphs sixteen through nineteen of count nine (negligent infliction of emotional distress) are incorporated, by reference, into count eleven. Paragraphs one through seventeen of count six (bystander emotional distress) and paragraphs fifteen through eighteen of count ten (negligent infliction of emotional distress) are incorporated, by reference, into count twelve.
Based on the foregoing, the court grants the defendants' motion to strike counts five, six, seven and eight and denies the defendants' motion to strike counts eleven and twelve.
Gilardi, J.