Mirna Duarte et al. v. Norwalk Hospital (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (Motion # 188.00)

I. INTRODUCTION AND SUMMARY OF FACTS

This case is a medical malpractice action involving the labor and delivery of the infant plaintiff, Daniel Duarte on May 17, 2007.   The plaintiffs, Daniel Duarte, an infant represented by his parents, Mirna Duarte and Santos Duarte, Mirna Duarte and Santos Duarte individually, brought the present action alleging that significant complications during the delivery of Daniel Duarte left him seriously injured.   In the second revised complaint the plaintiffs allege the following facts.   Following admission to the defendant hospital for pregnancy, labor, delivery and post-natal care on May 17, 2007, the defendant's servants failed to diagnose that Mirna Duarte would be unable to deliver vaginally.   During the course of attempting to facilitate a vaginal delivery, they allegedly used excessive force and improper techniques when trying to deliver Daniel Duarte and thereafter failed to perform a timely caesarean section.   These failures led to severe, serious, painful and permanent injuries for Daniel Duarte including difficulty elevating his arm, difficulty grasping objects and further difficulties requiring numerous surgeries.   The plaintiffs allege in count two that the defendant is liable to Mirna Duarte for negligent infliction of emotional distress because Mirna Duarte experienced severe emotional distress during the delivery process caused by the conduct of the defendant's agents.   They allege in count three that Mirna and Santos Duarte will incur significant expenses for Daniel Duarte's medical care and treatment, special education, habilitation and rehabilitation until Daniel Duarte reaches eighteen, at the earliest.

The issue presented is whether the court should grant the defendant's motion to strike the second count in the plaintiffs' second revised complaint, alleging negligent infliction of emotional distress to Mirna Duarte arising out of the negligent delivery of her son.   The defendant claims that this count attempts to allege bystander emotional distress which Connecticut does not recognize in medical malpractice actions.   The defendant, Norwalk Hospital, has therefore moved to strike the second count of the plaintiffs' second revised complaint, which the defendant characterizes as a claim for bystander emotional distress because only the plaintiff child and not the plaintiff mother sustained physical injuries.   The defendant claims that Connecticut does not recognize bystander emotional distress in a medical malpractice action, and thus urges that the court strike the second count.

The plaintiff counters her complaint adequately alleges negligent infliction of emotional distress because Mirna Duarte was a patient and during childbirth the health of the mother and the child are inextricably linked.

II. APPLICABLE LAW

“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).  “[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike.”  Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991);  see also Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010) (motion must be denied where provable facts support a cause of action).  “Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”   (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).

The defendant argues that the second count fails to allege negligent infliction of emotional distress because the alleged malpractice related to care for the child, not care for the mother, and therefore is a claim for bystander emotional distress which Connecticut does not recognize in medical malpractice actions.   See Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988).¹  The plaintiffs counter that they successfully allege negligent infliction of emotional distress because Mirna Duarte was also a patient of the defendant and during childbirth the health of the mother and the child are inextricably linked;  therefore she was a direct victim of the defendant's negligence.

An action for negligent infliction of emotional distress requires that “(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.”  Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).  “[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.”  (Emphasis in original, internal quotation marks omitted.)   Vrzivoli v. Women's Health Associates, Superior Court, judicial district of Fairfield, Docket No. CV 08 5014640 (March 7, 2011, Levin, J.), citing Burgess v. Superior Court, 2 Cal.4th 1064, 1072–73, 831 P.2d 1197, 9 Cal.Rptr.2d 615 (1992).  “Although it has been said that no universal test for [duty] ever has been formulated ․ our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant.   The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.”  (Citation omitted, internal quotation marks omitted.)  Perodeau v. Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002).

The judges of the Superior Court are split as to whether an action by a mother for emotional distress resulting from injuries to her child during childbirth constitutes negligent or bystander emotional distress.   The majority of courts have held that “[b]ecause a birthing mother is the patient and active participant of a delivery, the mother need not allege conduct from her care, as distinguished from the care of her child, in order to assert a claim for negligent infliction of emotional distress.   Rather, a mother must allege that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.”  (Internal quotation marks omitted.)   Leoma v. Ob–Gyn Services, P.C., Superior Court, judicial district of New London, Docket No. CV 11 6011571 (August 28, 2012, Martin, J.).   A “birthing mother is the patient and active participant, not a bystander in connection with the delivery of her child, hence [the] court does not recognize a claim for emotional distress as a bystander in such a situation.   Rather, [the] court holds that a birthing mother may assert a claim for negligent infliction of emotional distress due to the harm she sustained as a result of medical malpractice during the delivery of her child.”  (Emphasis added.)   Subiono v. Yordan, Superior Court, judicial district of New London, Docket No. 559573 (April 25, 2002, Martin, J.).

Additional reasons for finding that a mother may bring a negligent infliction of emotional distress claim include that “[d]uring 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 ․” (Internal quotation marks omitted.)   Vrzivoli v. Women's Health Associates, supra, Docket No. CV 08 5014640, citing Burgess v. Superior Court, supra, 2 Cal.4th 1080.  “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].   Smith v. Humes, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 143884 (July 22, 1977, Ryan, J.).   See also Leoma v. Ob–Gyn Services., P.C., supra, Docket No. CV 11 6011571;  Sarfo–Darko v. Carabba, Superior Court, judicial district of Hartford, Docket No. CV 05 5000930 (June 30, 2006, Tanzer, J.);   He v. Litchfield County Obstetrics & Gynecology, P.C., Superior Court, judicial district of Litchfield, Docket No. CV 10 60025428 (February 29, 2012, Roche, J.);   Luminati v. Jaffe, Superior Court, judicial district of Litchfield, Docket No. CV 06 5001244 (October 29, 2007, Marano, J.);   Johnson v. Day Kimball Hospital of Windham County, Inc., Superior Court, judicial district of Windham, Docket No. 063592 (January 24, 2001, Foley, J.);   Martin v. Waradzin, Superior Court, judicial district of New Haven, Docket No. CV 97 0404366 (April 2, 1998, Hartmere, J.) (21 Conn. L. Rptr. 616).

Fewer judges have determined that an action by a mother for emotional distress caused by injury to her child during childbirth is a bystander action.  “The conduct in question must be conduct directed, intentionally or otherwise, toward the patient ․ in order to remove the matter from the realm of bystander liability.  (Citations omitted.)   Brodney v. Solinski, Superior Court, complex litigation docket at Middlesex, Docket No. X04 CV 04 4004680 (March 10, 2006, Beach, J.) (40 Conn. L. Rptr. 881, 881).   On balance, requiring some factual specificity as to the conduct in the treatment of the mother causing emotional distress is sensible.”  Id., 882.  “Merely because a duty is owed to the mother, a breach of which might result in a claim for the negligent infliction of emotional distress, does not mean that negligent acts inflicted on the infant can be a basis for a breach of that duty.   To so hold would be, as urged by the defendants, a complete blurring of the line between those to whom a duty is owed and the manner in which that duty might be breached thereby establishing liability.”   D'Attilo v. Viscarello, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 05 4003079 (August 15, 2005, Dooley, J.) (39 Conn. L. Rptr. 778, 780).

In the second revised complaint, in addition to stating the allegations required to state a claim for negligent infliction of emotional distress, the plaintiff mother has alleged factually that the defendant failed to recognize, appreciate and/or properly assess numerous risk factors, most specifically, that during labor and delivery it applied excessive traction, pressure and/or torsion to the infant plaintiff, failed to cease the McRoberts maneuver and suprapubic pressure and failed to perform a timely cesarean section.   While not every act of negligence in the delivery of a child will give rise to a claim for negligent infliction of emotional distress by the mother, there will be situations where such a claim can be made.   The above actions were medical procedures directly performed on the pregnant mother during the delivery process by defendant's agents.   As alleged, the defendant's actions had a direct impact on both the child and his mother.   It cannot be said that the birthing mother did not experience emotional distress beyond that of a difficult delivery as a result of the defendant's actions or that her status was in any way that of a mere bystander.   The fact that a mother's distress and concern for the health of her child is inherent to the birthing process does not preclude a claim for negligent infliction of emotional distress when the facts indicate that such emotional distress was proximately caused by the breach of the standard of care owed by the practitioner to the mother and child.   If, as a result of the defendant's actions toward both mother and child during the birthing process, the mother experienced emotional distress over the impact of the defendant's actions on her yet to be born child, such facts would be sufficient according to the majority view to withstand a motion to strike.   As applied to the facts of the plaintiff's second revised complaint, this court finds that the majority has the better and more reasoned position and adopts it here.   The medical care which an expectant mother seeks is the healthy birth of her child.   The doctor exercises his or her duty to the mother by delivering the child, and his or her conduct during delivery is directed at both mother and child.   The line between mother and child are naturally blurred during pregnancy and childbirth, a fact which the law should recognize.   The present complaint alleges that both mother and child were patients of the defendant and that through its agents the defendant performed procedures on them.   If it was not medically reasonable for the defendant to follow these procedures or it did so in an improper manner which resulted in physical injury to the child, it was foreseeable that injury the child sustained during birth would cause emotional injury to the mother.   Applying the rules of common-law negligence, if the mother was emotionally injured as a result, the law should recognize her individual claim for negligent infliction of emotional distress.   The court finds that the second revised complaint sufficiently alleges a claim by the mother for negligent infliction of emotional distress.

III. CONCLUSION

Therefore, the court finds that for the purpose of the motion to strike the plaintiff Mirna Duarte has adequately alleged a claim for negligent infliction of emotional distress.   The motion to strike count two is denied.

SOMMER, J.

FOOTNOTES

FN1. There has been some dispute among the judges of the Superior Court as to whether Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996), overruled Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988), by permitting actions for bystander emotional distress.   This court need not consider that issue because, as concluded below, the plaintiffs successfully allege negligent infliction of emotional distress..  FN1. There has been some dispute among the judges of the Superior Court as to whether Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996), overruled Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988), by permitting actions for bystander emotional distress.   This court need not consider that issue because, as concluded below, the plaintiffs successfully allege negligent infliction of emotional distress.

Sommer, Mary E., J.