Agnes Squeo, Fiduciary of the Estate of Stephen J. Squeo et al. v. The Norwalk Hospital Association et al. (2013)

MEMORANDUM OF DECISION ON DEFENDANTS DEBORAH M. SHAHID, APRN and THE NORWALK HOSPITAL ASSOCIATION'S MOTION FOR SUMMARY JUDGMENT RE BYSTANDER EMOTIONAL DISTRESS CLAIMS DATED JULY 20, 2012 (# 317.00)

This lawsuit is in two counts.   The First Count is a medical malpractice claim on behalf of the Estate of Stephen J. Squeo deceased against two defendants, the Norwalk Hospital Association (the hospital) and Deborah M. Shahid, APRN, a licensed advanced practical registered nurse at the Norwalk Hospital, for the wrongful death of Stephen J. Squeo.   The Second Count is for bystander emotional distress by Agnes Squeo and Joseph Squeo, the parents of Stephen J. Squeo, in their individual capacity.   This Motion for Summary Judgment (# 317.00) is addressed to the Second Count claiming bystander emotional distress.   The operative complaint is the Amended Complaint dated May 14, 2010 (# 171.00).

There are three issues involved in this Motion for Summary Judgment;  (1) Whether there can be a claim for bystander emotional distress arising out of medical malpractice?  (2) Whether Milton v. Robinson, 131 Conn.App. 760, cert. denied 304 Conn. 906 (March 14, 2012) and Jarmie v. Troncale, 306 Conn. 578 (September 17, 2012) change the bystander emotional distress rules set forth in Clohessy v. Bachelor, 237 Conn. 31 (1996) and Maloney v. Conroy, 208 Conn. 392 (1988), and (3) Whether the injuries suffered by the parents, Agnes Squeo and Joseph Squeo, are sufficient to rise to the level of debilitating injuries required to support a bystander emotional distress claim?

The defendants' July 20, 2012 Motion for Summary Judgment (# 317.00) and its Memorandum of Law (# 317.00), the plaintiffs' September 7, 2012 Objection (# 334.00), the defendants' October 15, 2012 Reply (# 341.00), and the May 14, 2010 Amended Complaint (# 171.00) are the relevant pleadings.   The parties appeared and argued their respective positions at a February 25, 2013 short calendar hearing.

This file contains two decisions issued on Motions to Strike that have addressed this bystander emotional distress claim.   On September 16, 2010 the court, Karazin, J., issued a “Memorandum of Decision Re Motion to Strike # 178” [50 Conn. L. Rptr. 618].   The defendants sought to strike Count Two alleging bystander emotional distress on behalf of the two parents.

Judge Karazin compared these four elements with the allegations of the complaint.   As to the fourth element of the parents' emotional distress claim, he noted that in paragraph thirty-nine of the Second Count the parents allege that they “have suffered extreme, substantial, serious and permanent emotional distress.” (# 199.00, p. 9.) Utilizing the Clohessy v. Bachelor standards and taking into consideration that the plaintiffs allege that they witnessed their son hanging from a tree, cut him down and unsuccessfully attempted to revive him before he subsequently died, Judge Karazin found:  “It would be difficult to imagine a more traumatic series of events than that allegedly experienced by the plaintiffs.” (# 199.00, p. 9–10.)   Judge Karazin denied the Motion to Strike the Second Count on September 16, 2010 (# 199.00).

Thereafter the plaintiffs amended their complaint and on October 27, 2011 the defendants' filed another Motion to Strike (# 253.00).   This Motion to Strike was argued before Judge Adams, who on April 12, 2012 issued a Memorandum of Decision (# 281.00).   This Motion to Strike was also addressed to the Second Count, the parents' bystander emotional distress claim.   Judge Adams cited the following facts drawn from the plaintiffs' amended complaint;  “On the evening of August 14, 2007, Agnes Squeo telephoned the Norwalk police department because her son, the decedent, was depressed and expressed a desire to harm himself with an electrical cord.   Later that evening, the decedent was detained by the police and admitted to the hospital for an emergency psychiatric examination.   During his stay at the hospital, the decedent was evaluated by Shahid.   The following morning, Shahid left a telephone message for the plaintiffs indicating that the decedent would soon be released from the hospital because he was no longer a danger to himself or others.   The decedent was allowed to leave the hospital soon after Shahid left the voicemail message for the plaintiffs.   After walking home alone, the decedent obtained a cord and immediately hung himself from a tree in the front yard.   Soon thereafter, Joseph Squeo saw the decedent hanging from a tree and the plaintiffs ran to assist their son.   In an attempt to revive him, the plaintiffs cut the decedent down from the tree and administered CPR. Despite the plaintiffs' best efforts, the decedent had already suffered substantial brain injuries, and he ultimately died after being taken off life support on August 23, 2007.” (# 281.00, p. 1–2.)

Because of the timing of this second Motion to Strike and other procedural considerations, Judge Adams did not decide the issue in chief raised by the Motion to Strike.   The defendants had already filed an Answer.   The court noted that he also could not entertain a Motion for Summary Judgment because the case had already been scheduled for trial and the defendants had not obtained the required permission.   Judge Adams therefore concluded:  “Accordingly, in order to place this issue before the court in its proper form, the defendants will need to obtain judicial permission to file a summary judgment motion, and then have that summary judgment motion argued before the court.” (# 281.00, p. 9.) Such permission has been filed and granted.   The resulting Motion for Summary Judgment (# 317.00) is now before this court.

Summary judgment can be granted in favor of the defendants on either of these two grounds;  (1) The parents' injuries are not debilitating as defined by Clohessy v. Bachelor, supra, 237 Conn. 31–32 or (2) A bystander emotional distress claim is not permitted in a medical malpractice case despite current case law.

The court will first examine the parents' injuries.   Bystander emotional distress claims can be brought subject to the following caveat:  “We therefore conclude, on the basis of sound public policy and principles of reasonable forseeablility, that a plaintiff should be allowed to recover, within certain limitations, for emotional distress as a result of harm done to a third party.   In doing so, we join the courts of other jurisdictions that have adopted the rule of foreseeability in various forms.”  Clohessy v. Bachelor, supra, 237 Conn. 49.

“We are aware that the application of pure rules of foreseeability could lead to unlimited liability.”  Id. 50.   The Clohessy court then devoted the next six pages discussing each of the four elements that have been previously outlined.  Id. 56.   It is the fourth element that forms one of the grounds for the defendant's Motion for Summary Judgment.   The fourth element states:  “The bystander's emotional injury must be serious beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response.”  Id. 56.   In reaching that conclusion, our Supreme Court drew from cases in California, New Mexico, Ohio, Pennsylvania, Hawaii, North Carolina, Texas, West Virginia, Maine and Wisconsin.   Immediately before the summary section on page 56, Clohessy relied on the following citation from a Louisiana case.  “Serious emotional distress, of course, goes well beyond simple mental pain and anguish.   Compensation for mental pain and anguish over injury to a third person should only be allowed where the emotional injury is both severe and debilitating ․ A non-exhaustive list of examples of serious emotional distress includes neuroses, psychoses, chronic depression, phobia and shock.”  Lejeune v. Rayne Branch Hospital, 556 So.2d 559, 570 (La.1990).

The court has applied the standard rules in deciding this Motion for Summary Judgment.   There is no need to restate those rule & herein.   Covello v. Town of Darien, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 08–5008909 S (October 22, 2010, Tierney, J.T.R.) [51 Conn. L. Rptr. 40];  Forrest v. Sotheby's International Realty, Inc., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 11–6010200 S (January 9, 2013, Tierney, J.T.R.).

One can hardly disagree with the characterization of the events that confronted both parents who witnessed the serious injuries, impending death, and ultimate death of their son in front of them;  “It would difficult to imagine a more traumatic series of events than that allegedly experienced by the plaintiffs.” (# 199.00, p. 9–10.)   Of that there is no material issue of fact.   The parents found their son hanging from a cord tied to a tree in their front yard of their home;  a home that all three lived in.   They were able to cut the cord and lay their son on the ground.   They discovered that he was still alive.   Despite their life saving efforts their son died soon thereafter.

Children are not supposed to die before their parents.   Children's deaths are not supposed to be witnessed by their parents.   Children are not supposed to die despite the parents' best efforts to resuscitate them after they are injured.   The death of a child is one of the most traumatic events that can occur in the lifetime of a parent.

There is no tragedy in life like the death of a child.   Things never get back to the way they were.

Dwight David Eisenhower.

By cruel hands the sapling drops.

In dust dishonour'd laid;

So fell the pride of all my hopes,

My age's future shade.

A Mother's Lament for Her Son's Death—Robert Burns, 1788

Just for today I will try to live through the next 24 hours and not expect to get over my child's death, but instead learn to live with it, just one day at a time.

Just for Today—Vicki Tushinghan, 2010.

The fourth element of a bystander emotional distress claim is crucial to the public policy foreseeability analysis that created the right to sue for bystander emotional distress.   Without this fourth element, every parent, spouse, sibling, relative, friend, classmate, neighbor and/or fellow worker would have a claim.   Under the public policy consideration “the universe of injured persons to whom the tortfeasor would be liable is limited to a defined group.”   Irons v. Coles, Superior Court judicial district of Waterbury at Waterbury, Docket Number CV 94–0119038 S (October 5, 1998, Hodgson, J.) [25 Conn. L. Rptr. 59].

While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world.   Every injury has ramifying consequences, like the ripplings of the waters, without end.   The problem for the law is to limit the legal consequences of wrongs to a controllable degree ․ The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.

Mazurek v. Great American Ins. Co., 284 Conn. 16, 30 (2007).

The rippling effect of the tort of bystander emotional distress is largely limited by the fourth element.   That fourth element cannot be read out of the elements of this tort nor can it be expanded to include all parents whose children die under tragic and traumatic circumstances.   The legal question is whether that trauma and the effects on the plaintiff parents, Agnes Squeo and Joseph Squeo, is sufficient to meet the fourth element of bystander emotional distress?

The operative complaint is the May 14, 2010 Amended Complaint (# 171.00).   The nature and extent of the injuries suffered by the parents in the bystander emotional distress count before the court is alleged to be:  “The Plaintiffs have suffered extreme, substantial, serious and permanent emotional distress.” (# 171.00, paragraph 5.) These allegations were sufficient to defeat the Motion to Strike (# 199.00).   These allegations are not facts and thus by themselves are not sufficient to defeat this Motion for Summary Judgment (# 317.00).   The plaintiffs filed a September 7, 2012 Objection to Motion for Summary Judgment (# 334.00), which consisted of a fifteen-page Memorandum of Law, a copy of Judge Karazin's ten-page September 12, 2010 Memorandum of Decision Re Motion to Strike (# 199.00) and eleven unreported Connecticut cases.   No affidavits, police reports, medical records, bills, or deposition transcripts were furnished by the plaintiffs in opposition to this Motion for Summary Judgment.   The defendants did submit portions of the depositions of both parents as well as their interrogatory responses. (# 317.00.)

In its October 15, 2012 Reply (# 341.00, page 7), the defendants noted this lack of documentary evidence of the parents' injuries with the following statement:

There is no question that the plaintiffs experienced emotional pain and grief as a result of their son's death.   However, neither plaintiff sought psychiatric or psychological treatment during the four years after their son's death.   They have received no diagnosis from a medical profession of neuroses, psychoses, chronic depression, phobia, shock, or post-traumatic stress disorder, or the like.   Moreover, there is no allegation that the plaintiffs' emotional distress has interfered with their ability to function on a day-to-day basis, nor evidence to support such an allegation.   Accordingly, the plaintiffs are unable to establish all of the elements necessary to sustain a claims for bystander emotional distress.   Parents cannot bootstrap a claim for loss of filial consortium into a bystander emotional distress claim merely by reciting the circumstances under which their child died.

After examining the documents submitted, the court finds that there is no evidence that either parent suffered any physical injury or was treated for any physical injury.   Neither parent was ever hospitalized overnight.   There is nothing in the record before the court that either parent was diagnosed with a condition recognized by the Diagnostic and Statistical Manual of Mental Disorder (DSM).  DSM is the standard criteria adopted by the American Psychiatric Association for the classification of mental disorders.

In Agnes Squeo's October 25, 2011 deposition (# 317.00), she was asked:  “Q:  Since finding your son in the tree, which I understand, have you sought any psychiatric or therapy care for yourself as a result of that experience?   A:  I spoke to Dr. Koleszer once while he was in the hospital.”   She did testify that she attended a family therapeutic session.   She spoke to a psychiatric therapist, who was Agnes Squeo's student.   Agnes Squeo stated:  “She was a psychiatric therapist, I guess.   She's a social worker, therapist.   She used to come to my classes and I would talk to her a lot.”   She also spoke to her pastor.  “Q:  How regularly do you see your pastor to address these issues.   A:  Not specifically for it.   I see him all the time.   And sometimes we'll just meet, chance meeting, and we'll just start chatting.”   She was prescribed sleeping pills immediately after her son's death but stopped taking them shortly thereafter.   Her February 19, 2010 Compliance to Interrogatories was submitted by the defendants:  “Q:  ․ state the name and address of each physician, hospital, mental health professional, counselor, or person who provided such attention A. N/A” (# 317.00, Interrogatory 8).   She listed no expenses for any medical provider (# 317.00, Interrogatory 14).

In Joseph Squeo's February 24, 2012 deposition (# 317.00) he was asked:  “Q:  So prior to July 2011, then, there was no ․ you were involved in no psychiatric or medical treatment concerning emotional distress derived from discovering you son, correct?   A. Yes.” His son, Stephen J. Squeo, died on August 23, 2007, almost four years prior to this deposition.   His deposition verified that in July 2011, Joseph Squeo was treated by Dr. Fakhouri, a psychiatrist.  “Q:  What prompted you to seek treatment at all with Dr. Fakhouri in July 2011.   A:  Because I wanted to take advantage of my V.A. service-connected disability, as I aged, to be back in ․” He also saw Dr. Foran.  “Q:  According to this, you saw her on two occasions, on August 11th and August 17th, 2011.   A:  Yes.” Agnes Squeo did comment in her October 25, 2011 deposition on her husband's condition as follows:  “Q:  How about your husband, as far as you know, do you know if he ever received any psychiatric treatment?   A:  He's had more help, yes.   He's, in fact, recently, he started, he saw a priest psychologist, and he's seen a psychologist and a psychiatrist through the VA.” No other evidence or documentation was presented to this court concerning the parent's bystander emotional injuries.

In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law ․ The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue ․ The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist ․ To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ․ which contradict those stated in the movant's affidavits and documents ․ The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.  (Citation omitted;  internal quotation marks omitted.)  Milliun v. New Milford Hospital, 129 Conn.App. 81, 92–93, 20 A.3d 36 (2011).

Milton v. Robinson, supra, 131 Conn.App. 779.

From these documents, the court finds that there is no material issue of fact that either of the parents, Agnes Squeo and Joseph Squeo, have suffered a serious injury “beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response.”

This conclusion is supported by a 2004 Superior Court case in which two sons witnessed the serious injuries sustained by their father over an extended period of time.   The trial court was satisfied that the first three elements of the sons' bystander emotional distress claims were present.  “The plaintiff Michael Fitch claims that, as a result of witnessing his father being trapped in his crane for several hours, he now experiences nightmares related to the incident and sleeplessness.   He also claims that he has experienced weight gain, is easily startled, and experiences emotional problems, including anger and frustration.   Robert Fitch, III claims that he has experienced difficulty sleeping and has also experienced anger and frustration.   The defendants contend that the injuries claimed are not severe and debilitating as established by Clohessy in order to maintain a cause of action for bystander emotional distress.”   The trial court cited the following from Clohessy:  “Serious emotional distress goes well beyond simple mental pain and anguish.   Compensation for mental pain and anguish over injury to a third person should only be allowed where the emotional injury is both severe and debilitating.”   The trial court granted summary judgment on the two sons' bystander emotional distress claims.  “Despite the indisputably traumatic effect their father's injury has had on their lives, the plaintiffs fail to raise a genuine issue of material fact demonstrating that they suffer from a severe injury as a result of seeing their father trapped inside his crane and assisting in his rescue.   This accident would have been traumatic to even a disinterested person and having nightmares about such an event would be a normal response to these circumstances ․” Fitch v. Milford Power Co., Superior Court, judicial district of Tolland, Complex Litigation Docket at Tolland, Docket No. X07 CV01–0077449 S (March 8, 2004, Sferrazza, J.) [36 Conn. L. Rptr. 601].

This court finds that the plaintiffs have failed to demonstrate that there is a material issue of fact that the injuries and damages suffered by the two parents, Agnes Squeo and Joseph Squeo, were severe and debilitating.   The Motion for Summary Judgment as to Count Two must be granted on that basis.   The court need not decide the remaining claims.

The court hereby grants the Defendants Deborah M. Shahid, APRN and the Norwalk Hospital Association's Motion for Summary Judgment Re Bystander Emotional Distress Claims dated July 20, 2012 (# 317.00) as alleged in Count Two of the Amended Complaint dated May 14, 2010 (# 171.00).

BY THE COURT

Hon. Kevin Tierney

Judge Trial Referee

Tierney, Kevin, J.T.R.