Opinion
No. CV03-0519045S
June 9, 2003
MEMORANDUM OF DECISION
This is a wrongful death and bystander negligence suit brought by Bonita Sanada, the plaintiff, as administrator of the estate of Joseph A. Sanada II and by Bonita Sanada in her own capacity against the following defendants: Town of Plymouth (town); Thomas McCann, a 911 dispatcher for the town; Plymouth Volunteer Ambulance Corps (Volunteer Ambulance); American Medical Response of Connecticut, Inc. (AMR); Bristol Hospital EMS, LLC (Bristol EMS); North Central Connecticut Emergency Services, Inc. (North Central); and Bristol Hospital (hospital). The defendants have moved to strike those counts that pertain to them that allege gross negligence and bystander liability.
The plaintiff alleges that Joseph Sanada, her husband, had a severe asthma attack on January 16, 2001 at his home in Terryville and that she immediately called 911, asking dispatcher McCann to send an ambulance with advanced life support (ALS) capabilities. The plaintiff alleges that she made two additional calls at two and six minutes after the initial call for assistance. The first party to respond to these emergency calls was a town police officer, who did not render assistance to Sanada. Second to arrive on the scene was a crew from Volunteer Ambulance, who allegedly failed to treat Sanada appropriately or summon an ALS ambulance. Subsequently an AMR ambulance did arrive at the Sanada residence, but was too late to render assistance before Sanada had died of cardiac arrest and respiratory failure.
As is relevant to this motion, the first count of the revised complaint alleges that the town was negligent for a variety of reasons for Sanada's death, and the second count alleges that Sanada's death and the consequential losses were caused by the "gross negligence" of the town. The fourth count alleges that McCann was negligent in Sanada's death, and the fifth count alleges that Sanada's death and the consequential losses were caused by McCann's "gross negligence." The seventh count alleges that Volunteer Ambulance was negligent in Sanada's death, and the eighth count alleges that Sanada's death and the consequential losses were CT Page 7389-fj caused by the "gross negligence" of Volunteer Ambulance. The tenth count alleges that AMR was negligent in Sanada's death, and the eleventh count alleges that Sanada's death and the consequential losses were caused by the "gross negligence" of AMR.
The thirteenth count alleges that Bristol EMS was negligent in Sanada's death, and the fourteenth count alleges that Sanada's death and the consequential losses were caused by the "gross negligence" of Bristol EMS. The sixteenth count alleges that North Central was negligent in Sanada's death, and the seventeenth count alleges that Sanada's death and the consequential losses were caused by the "gross negligence" of North Central. The nineteenth count alleges that the hospital was negligent in Sanada's death, and the twentieth count alleges that Sanada's death and the subsequent losses were caused by the "gross negligence" of the hospital.
Several counts at the conclusion of the revised complaint involve the plaintiff's individual claim for bystander liability under Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996). She alleges that she was the wife of Joseph Sanada and was injured in perceiving "the incidents which caused serious physical injury and death" to Sanada. These are the twenty-second count (the town); the twenty-third count (McCann), the twenty-fourth count (Volunteer Ambulance), the twenty-fifth count (AMR), the twenty-sixth count (Bristol EMS), the twenty-seventh count (North Central) and the twenty-eighth count (the hospital).
The negligence counts as alleged are virtually identical to one another, as are the gross negligence counts to one another, for each defendant. And there is hardly any distinction between the negligence counts and the subsequent gross negligence counts either. The parallel nature of the plaintiff's pleading may be illustrated by a review of the counts against the town as set forth in detail as follows.
The first count for negligence against the town alleges in paragraph 17 that Sanada's "injuries, death, and consequential losses" were proximately caused in whole or in part by the town's negligence in that it failed: a. to immediately dispatch an ALS ambulance; b. to follow proper protocol by dispatching trained personnel; c. to respond timely to the emergency; d. to arrange for appropriate care at the scene; e. to call for ALS assistance after assessing Sanada's condition; f. to transport Sanada to the hospital after assessing his condition; g. to timely and properly intubate Sanada; h. to communicate properly among the emergency care-givers; i. to properly treat Sanada's asthmatic condition; j. to follow procedures set out for 911 dispatchers and emergency personnel; k. to take measures to protect Sanada from further injury or death; l. to CT Page 7389-fk have working suction equipment, intubation equipment, and IV's; m. to have an adequate system to respond to the emergency in question; and n. to have sufficient or adequate staff on duty to handle an emergency such as the one in question. These specific allegations of negligence are, except for some minor grammatical changes, identical to the allegations made against each other defendant.
The second count is an action for gross negligence against the town. There are only two differences between the first count and this second count. First, the phrase "knowing there was a life-threatening emergency" is added to the subparagraphs set forth above from the first count. Second, an additional subparagraph is added, stating: "in that they repeatedly ignored a life-threatening emergency and they repeatedly ignored the requests for ALS." Again these two additional allegations are added to each other defendant's count of negligence to achieve a count in gross negligence. To summarize, the difference between those counts against each defendant alleging negligence and gross negligence is that the gross negligence counts emphasize that the defendants were well aware of the life-threatening situation and ignored it.
The defendants have in separate motions moved to dismiss those counts alleging gross negligence and bystander liability. "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.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003); see Practice Book § 10-39. "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.) Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 629, 804 A.2d 180 (2002). "[T]he facts alleged in the . . . complaint must be taken as true, and construed in the manner most favorable to the pleader." Cotto v. United Technologies Corp., 251 Conn. 1, 42, 738 A.2d 623 (1999). "The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).
In their first argument, the defendants claim that the gross negligence counts should be stricken because there is no right to bring a claim for gross negligence in this state. It is true that in general "gross negligence has never been recognized in this state as a separate basis of liability in the law of torts." Decker v. Roberts, 125 Conn. 150, 157, 3 A.2d 855 (1939). This general rule does not apply, however, where a CT Page 7389-fl gross negligence claim is made in the context of a statute — in this case § 52-557b (b), the "Good Samaritan statute" granting immunity to these defendants except for acts or omissions "constituting gross, wilful or wanton negligence." See Hansen v. Mohegan Fire Co., Superior Court, judicial district of New London at Norwich, Docket No. 111388 (April 7, 2003, Corradino, J.), 34 Conn. L. Rptr. 479.
In Glorioso v. Town of Burlington Police Department, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 02-0168481-S (March 10, 2003, Hodgson, J.), 34 Conn. L. Rptr. 472, the court ruled similarly on a gross negligence count against Bristol Hospital for failure to render emergency assistance to a person who became ill during a Thanksgiving dinner. The court concluded that the plaintiff should have the opportunity to plead gross negligence to avoid the exception in the immunity statute. Otherwise "[i]f he or she pleads only negligence, with the intention of proving that the acts or omissions actually constituted gross, wilful or wanton negligence, the claim is at risk under the immunity provision . . ." Id.
The defendants' second argument is that the plaintiff has failed to allege sufficiently a claim for gross negligence. The court must determine, therefore, what the legislature meant by the term "gross negligence" in § 52-557b (b). Following State v. Courchesne, 262 Conn. 537, 816 A.2d 562 (2003), on statutory interpretation, the legislative history of the original Good Samaritan Act shows that it follows the language of a model act used in several other states. An example given by Senator Gladstone was of specialists, such as dermatologists, coming upon an accident scene where a victim had broken bones, "and rather than risk the chance of a malpractice action, they would continue on, not correctly, perhaps, but nonetheless this is what they did . . . I think [under the Good Samaritan Act] they would feel that they can render immediate first aid to a injured person without fear of malpractice action, unless they commit actions which are gross wilful or wanton negligence. I think there is ample protection to the public with reference to that provision . . ." 10 S. Proc., Pt. 4, 1963 Sess., p. 1419; 10 S. Proc., Pt. 5, 1963 Sess., pp. 1695-96.
While the legislative history makes no distinction between "gross negligence" and "wilful" and "wanton" negligence, the cases make a nuanced distinction. In wilful negligence, the risk of the defendant's conduct is high or threatens very serious harm or the cost of avoidance of danger is very low and there is also a mental element. See D. Dobbs, Law of Torts (2000) at 351; Boward v. Leftwich, 89 S.E.2d 32 (Va. 1955). This type of negligence may lead to punitive damages. CT Page 7389-fm
This situation might be that of the intoxicated physician mentioned in the legislative history. See remarks of Senator Hull, 10 S. Proc., Pt. 5, 1963 Sess., p. 1635.
Gross negligence is also more serious than ordinary negligence, involving an extremely unjustified risk. Dobbs, supra at 350-51. Our Supreme Court has quoted the Massachusetts definition as follows: "Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is in gross negligence magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence. But it is something less than the wilful, wanton and reckless conduct which renders a defendant who has injured another liable to the latter even though guilty of contributory negligence . . . It falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong." Gondek v. Pliska, 135 Conn. 610, 613-14, 67 A.2d 552 (1949), quoting Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505 (1919).
A similar definition of "gross negligence" has been given in cases in other states which involved the Good Samaritan Act. In Wicker v. City of Ord, 447 N.W.2d 628, (Neb. 1989), when plaintiff's husband collapsed, the volunteer ambulance personnel at the scene admittedly failed to follow the recognized protocol for resuming cardiopulmonary resuscitation. The Nebraska Supreme Court affirmed the trial court's granting summary judgment under the Good Samaritan immunity. The Supreme Court refused to find the gross negligence exception applicable, where gross negligence was defined as "great and excessive negligence; that is, negligence in a very high degree. It indicates the absence of slight care in the performance of a duty." (Internal quotation marks omitted.) Id., 634.
In Tatum v. Gigliotti, 565 A.2d 354 (Md.App. 1989), the appellate court affirmed the trial court's dismissal at trial where the plaintiff alleged that an emergency medical technician did not properly attend to her husband's asthma attack. The plaintiff argued that the defendant "knew of the possible fatal consequences of failure to act, knew that Tatum needed oxygen during an acute asthma attack, failed to transport him properly from the house, failed to administer oxygen to him in the back of the ambulance for a significant period of time, allowed him to remain face down on the floor of the ambulance, and finally, falsified CT Page 7389-fn the ambulance report." Id., 358. The appellate court agreed with the trial court that the exception for gross negligence in the Maryland Good Samaritan Act did not apply, defining "gross negligence" as that where the defendant is "so utterly indifferent to the rights of others that he acts as if such rights did not exist." Id. See also Hardingham v. United Counseling Service, 672 A.2d 480, 483 (Vt. 1995), summarizing cases.
Given the recognized definition of "gross negligence" essentially as reckless disregard for human life, the plaintiff's complaint fails to state a legally sufficient claim of gross negligence by the defendants. Campbell v. Town of Plymouth, 74 Conn. App. 67, 77, 811 A.2d 243 (2002) (insufficient allegations of outrageous conduct). First, the repeated pleading of the same allegations against each defendant, while perhaps allowable for ordinary negligence, hardly meets the appropriate pleading standard for gross negligence. The essence of the tort is a particularized wrong. Secondly while the complaint alleges that the defendants knew Sanada faced serious problems and that they ignored repeated requests for advanced life support, there are no allegations that the defendants were wholly indifferent to the consequences of their actions. The court therefore strikes counts 2, 5, 8, 11, 14, 17 and 20 of the plaintiff's revised complaint.
The defendants also move to strike those counts in which the plaintiff claims bystander liability. "Emotional injuries resulting from apprehension of harm to another are typically identified by the catch phrases of `bystander emotional distress' or `bystander liability.' . . . The latter phrase has been more specifically defined as `the recovery of damages for witnessing the death or injury to another without significant injury or fear [of injury] to the witness.'" Shaham v. Wheeler, Superior Court, judicial district of Danbury, Docket No. 321879 (June 26, 1996, Moraghan, J.) ( 17 Conn. L. Rptr. 232).
The court concludes that the motions to strike should be granted for two reasons. First, in establishing the bystander rule in Clohessy, the Supreme Court did not overrule the earlier decision of Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988), rejecting the application of the rule to medical malpractice cases. Wattman v. New Hartford Vol. Fire Dept., Superior Court, judicial district of Waterbury, Docket No. CV 00 0155795 S (October 10, 2001, Rogers, J.), 30 Conn. L. Rptr. 554. Additionally, these counts allege that the plaintiff witnessed the consequences of the defendants' acts, not "the event or conduct" causing the injury. See Desjardins v. William Backus Hospital, Superior Court, judicial district of New London, Docket No. 562748 (April 25, 2003, Hurley, J.T.R.). CT Page 7389-fo
The plaintiff claims this is not a malpractice case. The court disagrees. "The classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the CT Page 7389-fp circumstances under which the alleged negligence occurred. [P]rofessional negligence or malpractice . . . [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . Furthermore, malpractice presupposes some improper conduct in the treatment of operative skill [or] . . . the failure to exercise requisite medical skill . . . From those definitions, we conclude that the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." (Citations omitted; internal quotation marks omitted.) Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn. App. 353, 357-58, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001). Here the plaintiff alleges the failure of the defendants to provide emergency medical services and has filed the "good faith" certificate of § 52-190a. This may therefore be characterized as a malpractice action. See Wattman v. New Hartford Vol. Fire Dept., supra.
The court in Misurale v. Cuteri, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 01 383788 So. (March 13, 2003, Doherty, J.), in deciding to a motion to strike a claim for bystander emotional distress, noted that the Superior Court is split as to the issue of whether a claim for bystander emotional distress is legally sufficient in a medical malpractice action, with the majority of decisions recognizing the continuing validity of Maloney's preclusion of such claims. See, e.g., Guarino v. Huttler, Superior Court, judicial district of New Haven, Docket No. CV 01 01456624 (August 23, 2002, Booth, J.) ('[T]he court is persuaded that the rule in Maloney, precluding bystander emotional distress claims arising out of medical malpractice, survives Clohessy"); Rodrigues v. Danbury Hospital, Superior Court, judicial district of Danbury, Docket No. CV 01 0343892 (August 13, 2002, White, J.) ("This court agrees with the well-reasoned decisions of the first line of cases and holds that the Maloney bright-line rule precluding bystander emotional distress claims in medical malpractice actions in Connecticut is still intact"); Wildman v. Connecticut Allergy Asthma Associates, P.C., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 334473 (December 16, 1996, Levin, J.) ( 18 Conn. L. Rptr. 453, 456) ("Since Maloney has not been overruled, the plaintiff may not assert a claim for bystander emotional distress arising out of alleged acts of medical malpractice . . ."); but see, e.g., Turner v. Obstetrics Gynecology Associates of Stamford. P.C., Superior Court, judicial district of Stamford, Docket No. CV 98 0169616 (September 6, 2001, D'Andrea, J.T.R.).
The Misurale court denied the legal sufficiency of a claim for bystander emotional distress in medical malpractice actions and therefore, granted the motion to strike that count. This court is in agreement with Misurale and the majority of the Superior Court decisions, and in any event finds that the allegations are defective under the Desjardins case. Therefore, the court grants the defendants' motion to strike counts 22-28.
So ordered.
Henry S. Cohn, Judge