Opinion
No. CV 01 0185312 S
October 24, 2003
MEMORANDUM OF DECISION
FACTS
The plaintiffs, Santina Vecchio and Anthony J. Vecchio III, bring this action in their individual capacities and as Co-Administrators of the Estate of Anthony J. Vecchio, IV.
The plaintiffs are residents of West Harrison, New York.
The defendant, Rye Brook Obstetrics-Gynecology, P.C., is a professional corporation organized and existing under the laws of the State of New York, with its principal place of business in Rye Brook, New York.
The defendant, Elizabeth Legatt, MD, is a member of Rye Brook Obstetrics-Gynecology, P.C., and is licensed to practice medicine in both New York and Connecticut.
Since 1985, she has been certified by the American Board of Obstetrics and Gynecology.
Dr. Legatt is a New York resident.
Prior to May 30, 2000, Rye Brook Obstetrics-Gynecology, P.C. was affiliated with United Hospital, in Port Chester, New York.
Informed that United Hospital planned to close its labor room, the corporation began making plans to affiliate with another hospital in early 2000.
In April of 2000, Dr. Legatt applied for a medical staff appointment and clinical privileges at Greenwich Hospital.
She also took the steps required to reinstate her license to practice medicine in the State of Connecticut.
Dr. Legatt was first admitted to practice in Connecticut in January of 1989, but the license was allowed to lapse in November of 1990.
Her Connecticut license was reinstated, effective May 31, 2000.
The plaintiffs' complaint alleges that on December 7, 1999, Santina Vecchio came under the care of Rye Brook Obstetrics-Gynecology, P.C., for purposes of prenatal care, and the care of her unborn child.
Santina Vecchio states she was informed that the professional corporation was changing its affiliation from United Hospital to Greenwich Hospital, in Connecticut.
Prior to June 10, 2000, all prenatal care provided to Santina Vecchio had been given in New York.
On June 10, 2000, as the result of a phone call placed to Rye Brook Obstetrics-Gynecology, P.C., Santina Vecchio went to Greenwich Hospital, where she was examined by Dr. Legatt, and treated on an outpatient basis.
A non-stress test was administered, and Santina Vecchio was discharged.
She was instructed to telephone her doctors, if she did not feel strong movements from the unborn child.
Santina Vecchio spoke to Dr. Legatt later that evening, explaining that she felt two light movements from the baby.
The following day, June 11, 2000, after two telephone calls, and intense pain, Santina Vecchio was instructed to go to Greenwich Hospital, where she was admitted at 9 p.m.
When no fetal heart movement was detected, it was determined that the unborn child had died.
Labor was induced, and the baby was delivered, still born.
In Count One of their three-count complaint dated October 16, 2001, the plaintiffs seek to recover for the wrongful death of their unborn child.
Count Two claims that Santina Vecchio suffered physical and emotional pain as a result of the death of her child, while Count Three seeks damages for bystander emotional distress on behalf of the Plaintiff Anthony J. Vecchio III.
The complaint alleges six specifications of negligence against Dr. Legatt, in which it is claimed that she deviated from the standard of care applicable to physicians Board Certified in Obstetrics and Gynecology in 2000.
The allegations of negligence are:
A. She failed to timely diagnose the medical condition of the plaintiffs' decedent, which was fetal distress;
B. She failed to admit the plaintiff, Santina Vecchio, for observation and monitoring for complaints of decreased fetal movement;
C. She failed to admit the plaintiff, Santina Vecchio, until such time as there was restoration of normal fetal movement;
D. She failed to admit the plaintiff, Santina Vecchio, until the plaintiff could have a biophysical profile;
E. She failed to advise the plaintiff, Santina Vecchio, to return to the hospital for monitoring of fetal well-being after the plaintiff reported only two slight movements of the baby after returning from the hospital on June 10, 2000.
F. She failed to adequately test for fetal well being.
The plaintiffs claim that the defendant, Elizabeth Legatt, MD, was acting as the agent, servant and employee of the defendant, Rye Brook Obstetrics-Gynecology, P.C.
The defendants have moved for summary judgment as to Count One (wrongful death), claiming that New York law applies to the cause of action.
Under New York law, a child must be born alive, in order for an action for wrongful death to be maintained. Endresz v. Friedberg, CT Page 11082 24 N.Y.2d 478, 481, 484-86 (1996).
The plaintiff has filed a pleading titled "Cross Motion for Summary Judgment," claiming that Connecticut law applies to the wrongful death cause of action, and that Count One states a claim on which relief can be granted.
The court is asked to determine whether New York or Connecticut law should be applied.
STANDARD OF REVIEW
A trial court may appropriately render summary judgment when documentary evidence, including pleadings and affidavits, demonstrate that no genuine issue of material fact remains between the parties, and the moving party is entitled to a judgment as a matte of law. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11 (1983); Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578 (1990). A material fact is defined as one which will make a difference in the result of the case. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969).
Connecticut Practice Book § 17-49 provides that summary judgment "shall be rendered forthwith if the pleadings, affidavits and other proof show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law."
The burden is on the moving party to show quite clearly what the law is, and that it excludes any real doubt as to the existence of any genuine issues of material fact. Fogarty v. Rashaw, 193 Conn. 442, 445 (1984); Yanow v. Teal Industries, Inc., 178 Conn. 262, 268 (1979).
CONNECTICUT LAW APPLIES TO THE WRONGFUL DEATH CLAIM
The defendants argue that the law of New York should be applied, given the fact that both plaintiffs and the defendant Elizabeth Legatt, MD are New York residents, and the offices of Rye Brook Obstetrics-Gynecology, P.C. are in New York.
They point to the fact that all prenatal care occurred in New York prior to Santina Vecchio's examination at Greenwich Hospital, and that the defendant did not have privileges at Greenwich Hospital during the entire course of the pregnancy.
They argue consistent with the affidavit of Dr. Victor Klein, that the death of the plaintiffs' decedent probably occurred in New York, prior to Santina Vecchio's June 11, 2000 admission to Greenwich Hospital.
The plaintiffs maintain that the events giving rise to the cause of action took place in Connecticut, during the course of the June 10, 2000 treatment at Greenwich Hospital, or shortly thereafter.
Of the claimed deviations from the applicable standard of care by Dr. Legatt, they argue that five of the six allegations took place in Connecticut. (Count One, paragraph 29.)
The claimed deviations involve the alleged failure of Dr. Legatt to properly diagnose the fetal distress of the unborn child, her failure to admit the plaintiff Santina Vecchio to Greenwich Hospital, for observation, monitoring and testing, and the failure to properly test the plaintiff.
The only deviation from the standard of care claimed to have occurred in New York involved the alleged failure of the defendant to instruct Santina Vecchio to return to Greenwich Hospital.
Although the phone call took place in New York, the allegation involves a failure to return to Connecticut for treatment.
The child was delivered, still born, at Greenwich Hospital on June 11, 2000.
Although the exact location of Santina Vecchio when her unborn child's heart ceased to beat cannot be conclusively established, a Connecticut death certificate was issued.
The plaintiffs declare that Santina Vecchio was advised during her pregnancy, that any hospital care would be provided at Greenwich Hospital, where the defendant, Elizabeth Legatt, M.D. was in the process of obtaining privileges during the spring of 2000.
The defendants are insured under a policy issued to Greenwich Hospital, Yale New Haven Health System, and other participating institutions, by CMCI Vermont.
Under the traditional doctrine of " lex loci delicti," substantive rights and obligations arising out of a tort action are governed by the law of the place of the injury. Gibson v. Fulling, 172 Conn. 407, 411 (1977); Menczer v. Menczer, 160 Conn. 563, 564-65 (1971); Orr v. Ahern, 107 Conn. 174, 176 (1928).
Analyzed under traditional " lex loci" principles, great weight would be given to the fact that all of the claimed deviations from the standard of care either occurred in, or involved, the State of Connecticut.
Coupled with the fact that Dr. Legatt is licensed to practice medicine in Connecticut, and was examining Santina Vecchio in a Connecticut Hospital, this would be sufficient to apply Connecticut law, consistent with traditional principles.
However, because Connecticut has abandoned categorical allegiance to the doctrine of " lex loci" and has opted to incorporate the guidelines contained in the Restatement (Second) Conflict of Laws; O'Connor v. O'Connor, 201 Conn. 632, 637 (1986); the plaintiffs do not automatically prevail, if a rigid application of " lex loci" would produce a result which is arbitrary, or irrational.
The Restatement (Second) Conflicts of Law, § 6, lists seven factors which are germane to the choice of the applicable rule of law:
A) The needs of the interstate and international systems;
B) The relevant policies of the forum;
C) The relevant policies of other interested states and the relative interests of those states in the determination of the particular issue;
D) The protections of justified expectations;
E) The basic policies underlying the particular field of law;
F) Certainty, predictability and uniformity of result;
G) Ease in the determination and application of the law to be applied.
Sections 145(2) Restatement (Second) Conflicts of Law, establishes black letter rules of priority to facilitate the application of the principles outlined in § 6 to tort cases. O'Connor v. O'Conner, supra, 652.
The four factors to be considered in § 145(2) are:
1) The place where the injury occurred;
2) The place where the conduct causing the injury occurred;
3) The domicile, residence, nationality, place of incorporation and place of business of the parties.
4) The place where the relationship, if any, between the parties is centered.
Because Count One of the plaintiffs' complaint seeks recovery for the wrongful death of their unborn child, the requirements of § 175 of the Restatement (Second) Conflicts of Law must also be considered.
Section 175 establishes a presumption that the law of the state where the injury occurred governs, unless another state has a more significant relationship consistent with § 6 of the Restatement.
Section 175 Restatement (Second) Conflict of Laws: "In an action for wrongful death, the local law of the state where the injury occurred determines the rights and responsibilities of the parties unless, with regard to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied."
The analysis of the criteria announced in the Restatement necessarily involves a case by case consideration of the various factors.
O'Conner entailed an action to recover for injuries sustained in a one-car automobile accident which occurred in the Province of Quebec, Canada.
Quebec law did not permit a cause of action for personal injuries, and a motion to strike the plaintiff's complaint was granted by the trial court, based on the application of the " lex loci delicti" doctrine.
The Connecticut Supreme Court reversed the decision, applying the four-pronged criteria of Restatement § 145(2).
The court held that Connecticut law should be applied, notwithstanding the fact that Quebec was both the place of the injury, and the place where the conduct causing the injury occurred.
It reasoned that both the plaintiff and the defendant were Connecticut residents; and that the parties were merely "passing through" Quebec at the time of the accident. The location of the accident was purely fortuitous. O'Connor v. O'Connor, supra, 655.
Other than its status as the location of the accident, Quebec had no connection to the parties, and Connecticut's contacts with the litigants provided the necessary interest in order to apply Connecticut law to the dispute. O'Connor v. O'Connor, supra, 656.
Prior to O'Connor, Connecticut law was applied in the context of a Workers' Compensation claim, where two Connecticut residents, traveling in Tennessee, were involved in an automobile accident.
Although Tennessee law did not permit a suit by one employee against a co-employee, Connecticut law had no such bar.
The law of Connecticut, the place where the employment relationship was centered, was applied to this particular action. Simaikis v. Flood, 182 Conn. 24, 33-34 (1980).
Applying the § 145(2) Restatement criteria to the facts presented, compels the conclusion that Connecticut's interest in applying its own law is substantial based upon the contacts of the parties to the state.
It is claimed that deviations from the standard of care occurred while "Santina Vecchio was being examined at Greenwich Hospital, a Connecticut health care facility, under the treatment of a physician licensed to practice in Connecticut."
The claimed deviations from the applicable standard of care include a failure to admit the patient to Greenwich Hospital, a failure to properly test the patient, or to diagnose a condition of fetal distress.
A phone call was placed from New York to the plaintiffs' New York residence. However, the claimed deviation from the standard of care is the failure to instruct the plaintiff Santina Vecchio to return to Connecticut for further treatment.
Although all of the individual and corporate parties are New York residents, the presence of Santina Vecchio and Dr. Legatt in Connecticut was not fortuitous or accidental, but was contemplated as part of planned medical treatment.
Santina Vecchio was advised by Rye Brook Obstetrics-Gynecology P.C. that it was transferring its affiliation to Greenwich Hospital, and that hospital care would be provided at the Connecticut institution.
The plaintiff, prior to June 10, 2000, was examined in New York, for prenatal care.
However, it was always anticipated that the delivery would occur at a Connecticut hospital, and the plaintiff expected to give birth at Greenwich Hospital.
The relationship of the parties, therefore, is centered in both New York and Connecticut.
In considering which law should apply, the public policy interests of the forum state should be considered. Williams v. State Farm Mutual Automobile Ins. Co., 222 Conn. 359, 373 (1994).
Connecticut's interests include ensuring that hospitals which are located and licensed in the state provide proper medical care and attention to all who utilize hospital services, both residents and non-residents.
The state has a further interest in seeing that physicians licensed in Connecticut adhere to the standard of care applicable to board certified physicians in the particular specialty.
Connecticut also maintains an interest in according to a viable fetus, who is still born, certain rights along with the ability to enforce those rights.
Connecticut's concern for the preservation of potential human life is advanced by a statute which prohibits the termination of a pregnancy after viability, except to preserve the life or health of the pregnant woman.
Section 19a-602(b), C.G.S.
The defendants attach significance to an affidavit from a physician, who states that the unborn child died while Santina Vecchio was physically in New York.
The defendants seem to argue that the plaintiff's physical location when the unborn child's heart ceased beating determines where the injury occurred.
This claim is not persuasive.
The determination of whether New York or Connecticut law applies should not be settled based upon the jurisdiction in which the mother was standing or riding in a car, at the time her child died, even if that location could be pinpointed with unambiguous certainty.
It is the deviation from the applicable standard of care which must be shown to have been the proximate cause of the child's death.
The physical location of the mother is not a controlling consideration, since it is unplanned, unintended, and not an element of the cause of action.
The key factor in determining the location of injury, therefore, is where the deviation from the standard of care occurred.
The application of Connecticut law, based upon the facts of this case, will not produce an arbitrary or irrational result, and no satisfactory rationale has been presented for resort to New York law.
CONCLUSION
The motion for summary judgment filed by the defendants Elizabeth Legatt, MD and Rye Brook Obstetrics-Gynecology, P.C. is DENIED.
The motion for summary judgment filed by the plaintiffs Santina Vecchio and Anthony J. Vecchio, III, is GRANTED, to the extent that it seeks a determination that Connecticut law applies to the plaintiffs' cause of action, as stated in Count One.
RADCLIFFE, J.