PPA v. Women's Health Associates (2011)

MEMORANDUM OF DECISION

On August 6, 2010, Erjon Vrzivoli, his mother, Arta Vrzivoli, and his father, Sabit Vrzivoli, filed a nine-count revised complaint against Fairfield County Women's Health Associates (FCWHA), Phyllis H. Shapiro, an employee or agent of FCWHA, and St. Vincent's Medical Center.¹  In counts two and five, the plaintiff, Arta Vrzivoli, alleges claims for negligent infliction of emotion distress against each of the defendants, FCWHA and Shapiro, respectively.²  The Vrzivolis allege that between approximately June 30, 2005, and May 2, 2006, the defendants “undertook the care, treatment, monitoring, diagnosing and supervision of the infant plaintiff, Erjon Vrzivoli, then in utero, and the infant plaintiff's mother, Arta Vrzivoli, for pregnancy, labor, delivery and post delivery care.”   They further allege that the defendants were negligent for several reasons, essentially because they failed to promptly deliver Erjon when they should have known that there were serious issues with his fetal heart.³  As a result of this alleged negligence, Erjon Vrzivoli sustained serious injuries including cerebral palsy, seizures and hypoxic ischemic encephalopathy.   In counts two and five, the plaintiff alleges specifically that the defendants “knew or should have known that their conduct was likely to cause unreasonable risk of emotional distress to the plaintiff, ARTA VRZIVOLI, and that the distress, if it were caused, might result in illness or bodily harm to the plaintiff, ARTA VRZIVOLI.”   Moreover, the plaintiff alleges that she has “suffered and will continue to suffer extreme emotional distress and its consequences.”

On October 4, 2010, the defendants filed the present motion to strike counts two and five of the revised complaint and a memorandum in support thereof.   On November 2, 2010, the plaintiff filed an objection to the defendants' motion to strike and a memorandum in support of her objection.

“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).  “We take the facts to be those alleged in the complaint ․ and we construe 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 ․ Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).

In support of their motion to strike, the defendants argue that counts two and five fail to set forth valid claims for negligent infliction of emotional distress.   They further argue that even if valid claims have been plead, the plaintiff has not alleged sufficient facts to support such claims.   Specifically, they argue that a complaint that “alleges negligent acts as to the plaintiff mother, but only insofar as those acts caused injuries to her infant, then merely recites the essential elements of emotional distress ․ fails to properly state a cause of action for negligent infliction of emotional distress.”  (Defendants' Memorandum in Support of Motion to Strike, p. 7.) Lastly, they argue that the negligent infliction of “emotional distress claims are merely a pretext for a bystander emotional distress claim ․ [which] is not recognized by our jurisprudence.”  (Defendants' Memorandum in Support of Motion to Strike, p. 8.)

In her objection, the plaintiff responds to the defendants by arguing that she alleges a valid cause of action for negligent infliction of emotional distress.   She argues that the defendants owed a duty directly to her under the patient-physician relationship, a duty she alleges they breached.   Thus, she explains that her claims in counts two and five are not for bystander emotional distress and she does not address the defendants' argument on this point.   The plaintiff argues that Connecticut recognizes a mother's claim for the negligent infliction of emotional distress during childbirth.

“To establish a claim of negligent infliction of emotional distress, a plaintiff must prove the following elements:  (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant's conduct was the cause of the plaintiff's distress.”  (Internal quotation marks omitted.)  Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 552, 938 A.2d 1269, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008).

The plaintiff argues that the present motion to strike should be denied simply because “a mother is not merely a bystander at the birth of her child.”   (Plaintiff's Objection to Defendants' Motion to Strike, p. 3.) Typically, whether a plaintiff is a bystander may be readily ascertained by determining whether the duty allegedly breached was owed directly to that plaintiff, or to another person with whom the plaintiff had a preexisting relationship.   See, e.g., Galgano v. Metropolitan Property & Casualty Ins. Co., 267 Conn. 512, 520-21, 838 A.2d 993 (2004).   However, the experience by which a mother gives birth to her child is a sui generis condition.  People v. Cross, 45 Cal.4th 58, 74, 190 P.3d 706, 82 Cal.Rptr.3d 373 (2008) (“Pregnancy is a sui generis condition”).   The label “bystander,” urged by the defendant, is not analytically useful.   Bystander may be defined as “[o]ne who is present when an event takes place, but who does not become directly involved in it.”   Black's Law Dictionary (9th Ed.2009).   A mother is obviously not a bystander during the process of childbirth because she is directly involved in this process.

However, the fact that a mother is not a bystander during the birthing process does not sufficiently answer whether a mother may maintain an action in her own right for negligent infliction of emotional distress.   Rather, what is analytically significant is whether under the facts of a particular case, it is alleged that the mother suffered emotional distress as a direct consequence of the defendant's breach of duty to her, or because of the defendant's breach of duty to her injured child.

In Burgess v. Superior Court, 2 Cal.4th 1064, 831 P.2d 1197, 9 Cal.Rptr.2d 615 (1992), the California Supreme Court dealt with the present issue.   Specifically, the court in Burgess classified the issue on appeal as:  “Can a mother recover damages for negligently inflicted emotional distress against a physician who entered into a physician-patient relationship with her for care during labor and delivery if her child is injured during the course of the delivery?”  Id., 1069.   The court held:  “Because the professional malpractice alleged in this case breached a duty owed to the mother as well as the child, we hold that the mother can be compensated for emotional distress resulting from the breach of the duty.”  Id.

The Burgess court explained that “[t]he distinction between the ‘bystander’ and ‘direct victim’ cases is found in the source of the duty owed by the defendant to the plaintiff.   The ‘bystander’ cases ․ address the question of duty in circumstances in which a plaintiff seeks to recover damages as a percipient witness to the injury of another ․ These cases all arise in the context of physical injury or emotional distress caused by the negligent conduct of a defendant with whom the plaintiff had no preexisting relationship, and to whom the defendant had not previously assumed a duty of care beyond that owed to the public in general ․ In other words, bystander liability is premised upon a defendant's violation of a duty not to negligently cause emotional distress to people who observe conduct which causes harm to another.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Burgess v. Superior Court, supra, 2 Cal.4th 1072-73.

The court in Burgess further explained that it was presented “with a ‘traditional’ plaintiff with a professional negligence cause of action.  [The physician] cannot and does not dispute that he owed a duty of care to [the mother] arising from their physician-patient relationship ․ Rather, [the physician] contends that, while his alleged negligence resulting in injury to [the infant] breached a duty of care owed to [the infant], it did not breach a duty of care owed to [the mother].   In other words, [the physician] claims that the scope of the duty of care owed to [the mother] was limited to avoiding physical injury to her during her prenatal care and labor;  it did not extend to avoiding injury to her fetus and the emotional distress that would result from such an injury.   The origin of these mutually exclusive duties to [the mother] and [the infant] is apparently [the physician's] unsupported assertion that [the mother] and [the infant] were two separate patients, because his actions could physically injure one and not the other.

“To accept [the physician's] argument would require us to ignore the realities of pregnancy and childbirth.  [The mother] established a physician-plaintiff relationship with [the physician] for medical care which was directed not only to her, but also to her fetus.   The end purpose of this medical care may fairly be said to have been to provide treatment consistent with the applicable standard of care in order to maximize the possibility that [the mother's] baby would be delivered in the condition in which he had been created and nurtured without avoidable injury to the baby or to [the mother] ․ Moreover, during pregnancy and delivery it is axiomatic that any treatment for [the infant] necessarily implicated [the mother's] participation since access to [the infant] could only be accomplished with [the mother's] consent and with impact to her body.

“In addition to the physical connection between a woman and her fetus, there is an emotional relationship as well.   The birth of a child is a miraculous occasion which is almost always eagerly anticipated and which is invested with hopes, dreams, anxiety, and fears.   In our society a woman often elects to forego general anesthesia or even any anesthesia, which could ease or erase the pain of labor, because she is concerned for the well-being of her child and she anticipates that her conscious participation in and observance of the birth of her child will be a wonderful and joyous occasion.   An obstetrician, who must discuss the decision regarding the use of anesthesia with the patient, surely recognizes the emotionally charged nature of pregnancy and childbirth and the concern of the pregnant woman for her future child's well-being.   The obstetrician certainly knows that even when a woman chooses to or must undergo general anesthesia during delivery, the receiving of her child into her arms for the first time is eagerly anticipated as one of the most joyous occasions of the patient's lifetime.   It is apparent to us, as it must be to an obstetrician, that for these reasons, the mother's emotional well-being and the health of the child are inextricably intertwined.

“It is in light of both these physical and emotional realities that the obstetrician and the pregnant woman enter into a physician-patient relationship.   It cannot be gainsaid that both parties understand that the physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus.   Any negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother, therefore, breaches a duty owed directly to the mother.”  (Citations omitted.)  Burgess v. Superior Court, supra, 2 Cal.4th 1075-76.

“During pregnancy, the mother and child are a unique physical unit.   The welfare of each is intertwined and inseparable ․ Under such circumstances, it cannot be denied that a mother, who carries her fetus to term and begins labor, has formed a sufficiently close bond with her fetus that injury to the fetus during labor and delivery will cause her severe emotional distress.   Nor can it be denied that this distress is foreseeable to her obstetrician ․ It is ․ patently clear that a mother forms a sufficiently close relationship with her fetus during pregnancy so that its stillbirth [or injury] will foreseeably cause her severe emotional distress.   Where the stillbirth [or injury] results from medical malpractice rather than from natural and unavoidable causes the loss is all the more poignant and should be legally redressable.”  (Citations omitted;  internal quotation marks omitted.)  Burgess v. Superior Court, supra, 2 Cal.4th 1080.  “Any medical care for the fetus, including assistance in its delivery, necessarily involves the mother's consent and bodily participation.   An obstetrician's negligent delivery of a child, resulting in the child's injury, is closely (even inextricably) related to any emotional distress incurred by the mother upon her realization of the injury to her child.”  Id., 1081.

The court in Burgess also held that “[for public policy reasons ․ these damages do not extend to emotional distress due to loss of affection, society, companionship or similar harm that the mother may incur in adjusting to and living with the child's impairments.”  Id., 1069.   This conforms with the status of loss of filial consortium claims in Connecticut.  “[T]he trend among the judges of the Superior Court is that [l]oss of consortium claims are limited to spouses and do not extend to claims for loss of parental or filial consortium.”  (Internal quotation marks omitted.)   Browne v. Kommel, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 08 5006167 (July 14, 2009, Pavia, J.) (48 Conn. L. Rptr. 248, 249).

The court in Burgess continued, “We believe that this limitation on recovery eliminates the possibility of duplicative recovery by [the mother] for damages which may be recovered by her child.   We further hold to the extent, however, that [the mother's] emotional distress arose from the abnormal event of participating in a negligent delivery and reacting to the unexpected outcome of her pregnancy with resulting fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain ․ resulting from defendant's breach of duty, then [the mother's] emotional distress is of the type for which we have previously recognized recovery should be provided and is distinguishable from the type of emotional distress for which recovery is prohibited by virtue of the policy considerations underlying the prohibition of filial consortium claims.”  (Citations omitted;  internal quotation marks omitted.)  Burgess v. Superior Court, supra, 2 Cal.4th 1084-85.

This court agrees with and adopts the reasoning set forth in Burgess.   This conforms with the majority of the decisions of the Connecticut Superior Court that have held that a mother may allege a cause of action for negligent infliction of emotional distress under these circumstances, based on the distinction between claims for bystander recovery and those based on the breach of a direct duty owed to a plaintiff-mother.⁴  It also specifically addresses the type of damages recoverable under a claim of negligent infliction of emotional distress for any breach of the duty owed directly to the plaintiff by the defendant.   In this context, a plaintiff's negligent infliction of emotional distress claim is not merely a “pretext” for bystander recovery, but rather, a legally distinct cause of action.   For the reasons discussed in Burgess, this court holds that a mother may have a cause of action for negligent infliction of emotional distress against a physician whose deviation from the standard of care during labor and delivery is a proximate cause of injury to her child.

In paragraphs seven through ten of count two and paragraphs eight through eleven of count five, the plaintiff alleges facts that satisfy the four requirements for a legally sufficient claim of negligent infliction of emotional distress against each of the defendants.   For this reason, the defendants' motion to strike counts two and five of the plaintiff's revised complaint is denied.

BY THE COURT

Bruce L. Levin

FOOTNOTES

FN1. St. Vincent's Medical Center is not a party to the present motion to strike.   Greater Hartford Women's Health Associates is a nonappearing defendant and is also not a party to the motion to strike.   For purposes of this memorandum, “the defendants” refers only to FCWHA and Phyllis H. Shapiro..  FN1. St. Vincent's Medical Center is not a party to the present motion to strike.   Greater Hartford Women's Health Associates is a nonappearing defendant and is also not a party to the motion to strike.   For purposes of this memorandum, “the defendants” refers only to FCWHA and Phyllis H. Shapiro.

FN2. Erjon Vrzivoli and Sabit Vrzivoli are not parties to the present motion to strike.   For purposes of this memorandum, “the plaintiff” refers only to Arta Vrzivoli..  FN2. Erjon Vrzivoli and Sabit Vrzivoli are not parties to the present motion to strike.   For purposes of this memorandum, “the plaintiff” refers only to Arta Vrzivoli.

FN3. Specifically, the second and fifth counts allege that the defendants were negligent because they:  “a. failed to adequately and properly care for, treat, diagnose, monitor and supervise the infant plaintiff, ERJON VRZTVOLI, then in utero, and the infant plaintiff's mother, ARTA VRZIVOLI, during pregnancy, labor, delivery and post delivery care;  b. failed to properly assess fetal well being;  c. failed to properly interpret the fetal heart tracing as being unstable;  d. failed to appreciate the significance of an unstable fetal heart rate baseline, fetal decelerations, and decreased variability as signs of fetal compromise;  e. failed to timely recognize a non reassuring fetal heart rate pattern;  f. violated the standard of care by failing to insure immediate delivery of this compromised fetus;  g. failed to provide physicians who possessed the requisite knowledge, skill and experience to adequately and properly care for, treat, diagnose, monitor and supervise the infant plaintiff, then in utero, and the infant plaintiff's mother, for pregnancy, labor and post delivery care;  and, h. failed to promulgate and/or enforce rules, regulations, standards and protocols for the treatment of patients such as the infant plaintiff, ERJON VRZIVOLI, then in utero and the infant plaintiff's mother, ARTA VRZIVOLI, for pregnancy, labor and post delivery care.”.  FN3. Specifically, the second and fifth counts allege that the defendants were negligent because they:  “a. failed to adequately and properly care for, treat, diagnose, monitor and supervise the infant plaintiff, ERJON VRZTVOLI, then in utero, and the infant plaintiff's mother, ARTA VRZIVOLI, during pregnancy, labor, delivery and post delivery care;  b. failed to properly assess fetal well being;  c. failed to properly interpret the fetal heart tracing as being unstable;  d. failed to appreciate the significance of an unstable fetal heart rate baseline, fetal decelerations, and decreased variability as signs of fetal compromise;  e. failed to timely recognize a non reassuring fetal heart rate pattern;  f. violated the standard of care by failing to insure immediate delivery of this compromised fetus;  g. failed to provide physicians who possessed the requisite knowledge, skill and experience to adequately and properly care for, treat, diagnose, monitor and supervise the infant plaintiff, then in utero, and the infant plaintiff's mother, for pregnancy, labor and post delivery care;  and, h. failed to promulgate and/or enforce rules, regulations, standards and protocols for the treatment of patients such as the infant plaintiff, ERJON VRZIVOLI, then in utero and the infant plaintiff's mother, ARTA VRZIVOLI, for pregnancy, labor and post delivery care.”

FN4. “The appellate courts have not addressed the issue, but [w]hen the judges of the Superior Court have addressed whether a mother may recover emotional distress damages for the injury ․ of a child resulting from medical malpractice in the prenatal ․ [period], the majority has recognized a distinction between claims for bystander recovery and claims for negligent infliction of emotional distress based on the breach of a direct duty owed to a plaintiff/mother stemming from the physician-patient relationship ․ This majority has ruled that a mother is not a bystander [with respect to matters] that are incident to prenatal care ․” (Internal quotation marks omitted.)   Burnette v. Boland, Superior Court, judicial district of New London, Docket No. CV 08 5009111 (April 23, 2010, Martin, J.);   Brown v. Guinan, Superior Court, judicial district of Hartford, Docket No. CV 05 4012679 (January 14, 2009, Langenbach, J.) (47 Conn. L. Rptr. 85, 88 n.3) (citing twelve cases holding held that a mother is not a bystander with respect to matters that are incident to prenatal care)..  FN4. “The appellate courts have not addressed the issue, but [w]hen the judges of the Superior Court have addressed whether a mother may recover emotional distress damages for the injury ․ of a child resulting from medical malpractice in the prenatal ․ [period], the majority has recognized a distinction between claims for bystander recovery and claims for negligent infliction of emotional distress based on the breach of a direct duty owed to a plaintiff/mother stemming from the physician-patient relationship ․ This majority has ruled that a mother is not a bystander [with respect to matters] that are incident to prenatal care ․” (Internal quotation marks omitted.)   Burnette v. Boland, Superior Court, judicial district of New London, Docket No. CV 08 5009111 (April 23, 2010, Martin, J.);   Brown v. Guinan, Superior Court, judicial district of Hartford, Docket No. CV 05 4012679 (January 14, 2009, Langenbach, J.) (47 Conn. L. Rptr. 85, 88 n.3) (citing twelve cases holding held that a mother is not a bystander with respect to matters that are incident to prenatal care).

Levin, Bruce L., J.