PPA v. Litchfield County Obstetrics & Gynecology, P.C. (2012)

MEMORANDUM OF DECISION RE MOTIONS TO STRIKE # 195 AND 221 SHORT CALENDAR FEBRUARY 6, 2012

The issue before the court is whether to grant the defendants' motions to strike the emotional distress claims alleged in the plaintiffs' complaint.

I

FACTS

This is a medical malpractice action that was commenced on June 1, 2010, against three defendants, Mary Zozulin, M.D., Litchfield County Obstetrics and Gynecology, PC (“Litchfield County”) and Charlotte Hungerford Hospital (“CHH”).  The complaint alleges that the infant plaintiff, Sara He,¹ sustained serious injuries when she was born at CHH. The complaint also alleges that the mother plaintiff, Xiu Jin He, a plaintiff in her own right, sustained severe emotional distress during the labor and delivery of the infant plaintiff.

On February 15, 2011, Zozulin and Litchfield County filed a motion to strike (# 195) counts two and five of the plaintiffs' revised complaint on the ground that those counts fail to allege a legally sufficient cause of action for emotional distress.   On November 15, 2011, CHH filed a motion to strike (# 221) counts eight, eleven and fourteen of the plaintiffs' second revised complaint on the ground that those counts fail to allege a legally sufficient cause of action for emotional distress.   The plaintiffs filed objections to both motions.   The parties thereafter filed various reply and surreply memoranda.   The matter was heard on the February 6, 2012 short calendar.

II

DISCUSSIONAMotion to Strike Standard

“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).  “[The court takes] the facts to be those alleged in the complaint that has been stricken 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 ․ [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).

B

Analysis

The defendants' motions to strike and supporting memoranda contain, essentially, the same basic arguments.   Similarly, the plaintiffs' memoranda in opposition to the motions to strike assert the same basic arguments.   Therefore, the court will address the motions to strike and the oppositions in a collective fashion, and refer to all three defendants as “the defendants.”

The defendants move to strike the emotional distress claims asserted by the mother plaintiff on the ground that the emotional distress claims stem solely from the physical injuries allegedly sustained by the infant plaintiff.   The defendants argue that there are no allegations that the mother suffered any physical injury as a result of the alleged malpractice or any claims that the defendants failed to properly attend to the mother during the delivery.   According to the defendants, because the emotional distress is alleged to have resulted not from a breach of duty to the mother, but rather from the care provided to the infant, the mother's emotional distress sounds in bystander emotional distress, and is precluded by Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988), Clohessey v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996) and their progeny.   Furthermore, the defendants argue that even if the bystander distress claims were permitted, the mother's claims fail to satisfy the Clohessy test.   Finally, the defendants argue, alternatively, that the claims are, likewise, insufficient to state a claim for negligent infliction of emotional distress under Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 398 A.2d 1180 (1978).

The plaintiffs object, arguing that Connecticut courts have recognized a mother's claim for negligent infliction of emotional distress during childbirth.   The plaintiffs contend that a mother is not merely a bystander at the birth of her child, and a duty is owed to both the mother and the child to exercise reasonable care.   The claims for emotional distress are based on this direct duty to the mother, not on a theory of bystander liability.   Furthermore, the plaintiffs assert that they have properly alleged a claim for negligent infliction of emotional distress under Montinieri, and contrary to the defendants' assertion, the law does not require the pleading of a physical injury separate from a plaintiff's emotional distress.

The defendants reply, arguing that without a claim for direct physical injury, the plaintiff mother is considered a bystander and cannot recover.   Furthermore, the defendants contend that the plaintiffs' allegations are directed to actions involving the delivery of the infant, not the care of the mother, and are insufficient to state a cause of action for negligent infliction of emotional distress.²  The defendants also assert that there are no allegations that the mother had a contemporaneous sensory perception of the event or the conduct that caused her distress.

In their surreply, the plaintiffs argue that recovery for negligent infliction of emotional distress does not depend on proof of either a physical injury or harm from physical impact.   Moreover, the plaintiffs contend that courts have rejected the notion that a mother is a bystander during childbirth because she is directly involved in the process.   Furthermore, the plaintiffs assert that Clohessy and Maloney do not govern the plaintiffs' claims because those cases address bystander emotional distress, not negligent infliction of emotional distress.   The plaintiffs also argue that the defendants' duty to the mother encompasses her physical and emotional wellbeing.   Finally, the plaintiffs contend that there is no requirement that the mother be aware of the technical medical standards of care that were breached or that she have observed negligent conduct and injury during delivery.

Numerous Superior Court cases have considered whether a mother may recover for emotional distress damages for the injury or death of a child resulting from medical malpractice in the prenatal and delivery periods ․ The majority of the Superior Court cases that have considered the issue have ruled that a mother is not a bystander respecting matters that are incident to prenatal care and the delivery of her child ․ [A] woman in labor is a participant rather than a bystander of that event, permitting the mother a direct claim for emotional distress ․

Many of the Superior Court cases that have addressed this issue have found that a duty is owed to both the mother and child in childbirth.   A duty of proper obstetrical care is owed to a mother during childbirth, for breach of which the mother may recover for emotional distress.   Where the child remains a part of the mother's physical being, concerns for the child's welfare during delivery procedures are concerns for the mother's well being ․ [T]he plaintiff-mother [is] not a mere eyewitness or bystander to an injury caused by another but rather she [is] the one to whom a duty was directly owed by the obstetricians and the one who was directly injured by the physicians' breach of that duty ․

The very term “delivery” presupposes that the mother is an active participant in the birthing of a child.   To hold otherwise would be to reject the entire human experience, everywhere and at all times ․ It is obvious that a physician owes to a birthing mother a duty of reasonable care to render reasonable medical services throughout the course of birthing ․ Connecticut courts have noted that, when a child is injured due to negligent obstetrical care, the mother and child are joint victims of malpractice, not separable entities ․ [T]o suggest that a mother engaging in the process of labor and delivery is a bystander to the event, or to try to sever out concerns for her own well-being versus concerns for the child within her, defies logic and reason.   A mother's concerns during delivery for her own welfare and that of her child are so interwoven as to be legally inseparable.

(Citations omitted;  internal quotation marks omitted.)   Johnson ex rel. Johnson v. Day Kimball Hospital of Windham County, Inc., Superior Court, judicial district of Windham, Docket No. 063592 (January 24, 2001, Foley, J.).

In Vrzivoli v. Women's Heath Associates, Superior Court, judicial district of Fairfield, Docket No. CV 08 5014640 (March 7, 2011, Levin, J.), the court was presented with the issue now before this court.   The Vrzivoli court relied on Burgess v. Superior Court, 2 Cal.4th 1064, 831 P.2d 1197 (1992) which squarely addressed the issue of whether “a mother [could] 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.”   The Burgess court held that “[b]ecause the professional malpractice alleged ․ breached a duty owed to the mother as well as the child ․ that mother can be compensated for emotional distress resulting from the breach of the duty.”  Burgess v. Superior Court, supra;  Vrzivoli v. Women's Heath Associates, supra.

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 ․

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 ․

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 ․ 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 ․

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 ․ 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 ․

The court in Burgess continued, [w]e 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;  emphasis in original;  internal quotation marks omitted.)  Vrzivoli v. Women's Heath Associates, supra, Superior Court, Docket No. CV 08 5014640;  see Burgess v. Superior Court, supra, 2 Cal.4th 1064.

The Vrzivoli court adopted the reasoning set forth in Burgess, noting that it “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 ․ based on the distinction between claims for bystander recovery and those based on the breach of a direct duty owed to a plaintiff-mother ․ 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.”  (Internal quotation marks omitted.)  Vrzivoli v. Women's Heath Associates, supra, Superior Court, Docket No. CV 08 5014640.   The Vrzivoli court held “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.”  Id.

This court agrees with and adopts the reasoning set forth in the Vrzivoli and Burgess.   As such, in the present case, the plaintiff mother is not precluded from alleging a cause of action sounding in negligent infliction of emotional distress.  “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);  see Montinieri v. Southern New England Telephone Co., supra, 175 Conn. 337.   In counts two and five of the plaintiffs' revised complaint, and counts eight, eleven and fourteen of the plaintiffs' second revised complaint, the plaintiffs allege facts that satisfy the requirements for a legally sufficient claim of negligent infliction of emotional distress against each of the defendants.   Accordingly, the motion to strike (# 195) and the motion to strike (# 221) are hereby denied.

BY THE COURT,

Roche, J.

FOOTNOTES

FN1. The action was filed by Xiu Jin He and Zhiming Wang on behalf of their daughter, Sarah He. The action was also brought on behalf of Xiu Jin He and Zhiming Wang, individually..  FN1. The action was filed by Xiu Jin He and Zhiming Wang on behalf of their daughter, Sarah He. The action was also brought on behalf of Xiu Jin He and Zhiming Wang, individually.

FN2. The defendants also argue that the mother's claims are premised on events which occurred after the infant's birth, not upon distress the mother experienced before or during the birth.   In support of this argument, the defendants direct the court to the deposition testimony of the mother.   This, however, constitutes an improper speaking motion and cannot be considered by the court.  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)   Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005);  see Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988).  “A speaking motion to strike is one improperly importing facts from outside the pleadings.”  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).  “Where the legal grounds for ․ a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied.”   (Internal quotation marks omitted.)  Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004)..  FN2. The defendants also argue that the mother's claims are premised on events which occurred after the infant's birth, not upon distress the mother experienced before or during the birth.   In support of this argument, the defendants direct the court to the deposition testimony of the mother.   This, however, constitutes an improper speaking motion and cannot be considered by the court.  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)   Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005);  see Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988).  “A speaking motion to strike is one improperly importing facts from outside the pleadings.”  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).  “Where the legal grounds for ․ a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied.”   (Internal quotation marks omitted.)  Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).

Roche, Vincent E., J.