Opinion
NNHCV186083356S
11-20-2019
Maria DIMAURO, Executrix of the Estate of Enzo DiMauro et al. v. The CONNECTICUT HOSPICE, INC. et al.
UNPUBLISHED OPINION
PIERSON, J.
STATEMENT OF THE CASE
This action is brought in connection with the tragic death of a child, Enzo DiMauro (decedent), who passed away on April 22, 2016, just short of his third birthday. The plaintiff, Maria DiMauro, is the decedent’s mother and was appointed administratrix of his estate in February 2018.
Although she is one individual, the plaintiff brings this action in two separate capacities: (1) as administratrix of her decedent’s estate, and (2) in her individual capacity. Despite the dual nature of her status as a party, the court will refer to Maria DiMauro as "the plaintiff."
According to the plaintiff, the decedent was born on May 24, 2013, twenty-six weeks prematurely, with a twin sister. The decedent’s early diagnoses included cerebral palsy, retinopathy, and blindness. In September 2013, he underwent laser therapy which permitted him to gain vision. He had a left inguinal hernia repair. In that same month, a brain shunt was placed to treat demonstrated intraventricular hemorrhage grade IV bilateral with post-hemorrhagic Hydrocephalus-Ventriculoperitoneal. The decedent was subsequently treated for shunt blockages, which caused the decedent to experience severe pain.
On April 12, 2016, the plaintiff asked the decedent’s pediatrician if he could be prescribed medication for his pain; she was advised that such medication could only be delivered through hospice care. The plaintiff alleges that on April 20, 2016, the decedent was "admitted for in-home service through the Connecticut Hospice for Home Services."
According to the plaintiff, the defendants’ chart reflected that the plaintiff had a knowledge and skill deficit in connection with the decedent’s medications. Further according to the plaintiff, despite knowledge of this deficit, the hospice nurse instructed the plaintiff to administer morphine to the decedent, "an opioid naï ve baby," every four hours, without any written or verbal instructions concerning the risk of respiratory depression, the importance of monitoring respiratory rate, or the parameters for calling hospice or the physician in accordance with the plan of care.
The plaintiff claims that on April 20, 2016, she received a phone call from a representative of the defendants. During this call, the representative "asked if oxygen would be needed in order to transport [the decedent] to ... in patient hospice." This call upset the plaintiff because it suggested that the decedent was terminal; the plaintiff advised the representative that the decedent "was not supposed to be on terminal hospice care, and that he was not dying." A registered nurse, Jill Ziegler, was present at the time of this call and called the defendants back to address the plaintiff’s concerns and "to ensure that [the defendants’] staff understood that the only goal was pain management and that [the decedent] did not need hospice terminal care and also did not need to be removed from his home."
Later that day, an agent, servant, or employee of the defendants, Karen Van Der Horst, RN, arrived at the plaintiff’s home. Nurse Van Der Horst spent approximately thirty minutes at the home, where she completed paperwork and called a pediatrician to secure a prescription for morphine. The plaintiff was instructed by Nurse Van Der Horst to pick up the prescription at the doctor’s office, fill it at the pharmacy, and administer the morphine every four hours.
The plaintiff claims that on April 20, 2016, Nurse Van Der Horst took no vital signs, performed no physical assessment, and inadequately assessed the decedent and educated the plaintiff. The plaintiff further claims that the "primary focus" of the visit was to sign paperwork and obtain the morphine prescription.
According to the plaintiff, on April 21, 2016, the plaintiff became concerned about the decedent’s increasing agitation; she texted Nurse Van Der Horst, who instructed her to continue to administer morphine "around the clock every [four] hours" and to obtain lorazepam from the pharmacy, to be administered every four hours, together with the morphine. There was no offer to visit or assess the decedent and no mention of the importance of monitoring respiratory depression. The plaintiff complied with the instructions concerning the administration of morphine and lorazepam. On April 22, 2016, at approximately 5:00 a.m., the plaintiff went to check on the decedent; she found him cool and barely breathing. The plaintiff alleges that she picked the decedent up from his crib and "held him in her arms as he took his last [two] breaths before dying." Additional factual allegations are recited below, as necessary.
This action is brought against the defendants in negligence (First and Fifth Counts), lack of informed consent (Second and Sixth Counts), bystander emotional distress (Third and Seventh Counts), and negligent infliction of emotional distress (Fourth and Eighth Counts). By a motion to strike dated December 13, 2018 (No. 105.00), and supporting memorandum of law (No. 106.00) the defendants moved to strike all counts of the complaint, alleging that they fail to state claims upon which relief may be granted. The plaintiff filed an objection and opposition brief on January 28, 2019 (No. 111.00). Oral argument on the motion and objection was held on July 29, 2019, on which date the court took the matter under advisement.
DISCUSSION
I
"[A] motion to strike challenges the legal sufficiency of a pleading ..." (Internal quotation marks omitted.) Eskin v. Castiglia, 253 Conn. 516, 522, 753 A.2d 927 (2000); see also Practice Book § 10-39(a); Cadle Co. v. D’Addario, 131 Conn.App. 223, 230, 26 A.3d 682 (2011). The standard of review applicable to motions to strike is well established. As the motion is directed to the viability of a party’s pleading, as a matter of law, the court’s inquiry is limited to the facts alleged in the challenged pleading. Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25 (1992). Any consideration of matters outside the pleadings is generally prohibited. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990) ("[i]n deciding upon a motion to strike ... a trial court must take the facts to be those alleged in the [pleadings] ... and cannot be aided by the assumption of any facts not therein alleged" [citations omitted; internal quotation marks omitted] ).
Although the court is thus limited to an examination of the pleadings on a motion to strike, "[w]hat is necessarily implied [in an allegation] need not be expressly alleged"; (internal quotation marks omitted) Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998); and the court is required to "read the allegations of the [challenged pleading] generously to sustain its viability ..." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 212, 746 A.2d 730 (2000); see also Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997) (in keeping with its obligation to interpret pleadings generously, "[t]he court must construe the facts in the [challenged pleading] most favorably to the [claimant]" [internal quotation marks omitted] ).
Even so, a motion to strike "does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted.) Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). Thus, the motion must be granted "if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., supra, 224 Conn. 215. "For the purpose of ruling upon a motion to strike, the facts alleged in a [challenged pleading] ... are deemed to be admitted." (Internal quotation marks omitted.) DeConti v. McGlone, 88 Conn.App. 270, 271 n.1, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
II
A
The defendants first argue that the entire complaint should be stricken because (1) all the claims stated therein are predicated on the death of the decedent; (2) General Statutes § 52-555 is the exclusive remedy for such claims; and (3) the complaint is devoid of any reference to General Statutes § 52-555. According to the defendants, "[since] the exclusive means of recovery in an action seeking to recover damages for the death of another is [General Statutes] § 52-555, [the plaintiff’s] failure to bring this action pursuant to the statute is fatal to the complaint."
"At common law, the death of the injured person, whether contemporaneous with the wrongful act or not, terminated liability of the wrongdoer because the right to enforce it ended with the death ... Death and its direct consequences can constitute recoverable elements of damages only if, and to the extent that, they are made so by statute." (Citations omitted.) Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 295, 627 A.2d 1288 (1993). "The wrongful death statute; General Statutes § 52-555; is the sole basis upon which an action that includes as an element of damages a person’s death or its consequences can be brought." Id. ; Greco v. United Technologies Corp., 277 Conn. 337, 349, 890 A.2d 1269 (2006) ("[No] action for wrongful death existed at common law or exists today in Connecticut except as otherwise provided by the legislature ... [Section] 52-555 creates a liability where none formerly existed, ...") (Citations omitted; internal quotation marks omitted.) It is undisputed that the plaintiff’s claims include as an element of damages a person’s death or its consequences. As a result, the plaintiff’s claims may only be brought pursuant to General Statutes § 52-555. The question presented is whether the plaintiff’s failure to refer explicitly to General Statutes § 52-555 in the body of the complaint renders her claims insufficient as a matter of law. The court answers this question in the negative.
General Statutes § 52-555(a) reads, in part: "In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses ..."
Practice Book § 10-3, entitled, "Allegations Based on Statutory Grounds; Foreign Law," provides at subsection (a), as follows: "When any claim made in a complaint, cross complaint, special defense, or, other pleading is grounded on a statute, the statute shall be specifically identified by its number." "Although Practice Book § 10-3(a) provides that when any claim in a complaint is grounded on a statute, the statute shall be specifically identified by its number, this rule has been construed as directory rather than mandatory ... [When] the [opposing party] is sufficiently appraised of the nature of the action ... the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery." (Internal quotation marks omitted.) Burke v. Mesniaeff, 177 Conn.App. 824, 840, 173 A.3d 393 (2017), cert. granted, 328 Conn. 901, 177 A.3d 564 (2018). Thus, "[a]s long as the defendant is sufficiently apprised of the nature of the action ... the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery." (Internal quotation marks omitted.) Awdziewicz v. Meriden, 317 Conn. 122, 137-38, 115 A.3d 1084 (2015).
As observed by the Superior Court in a recent decision, "[t]he appellate cases discussing the directory nature of [Practice Book § 10-3] all appear to be in the context of a free-standing objection to a failure to allege a statute- none appear to be in the context of an omission after a request to revise had specifically asked for citation to statutory authority ... [W]hile Practice Book § 10-3 presumptively is directory in nature in the first instance, it takes on a more mandatory quality- at least as an issue of pleading, in the early stages of a dispute- when there is a request to revise seeking such specificity. Section 10-3 may be directory as an initial matter for the drafter of a complaint, but if invoked by an adverse party via request to revise, the rule provides an appropriate basis for the court to require compliance." Baxt v. Smith, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-18-6034862-S (June 1, 2018, Povodator, J.); see also BKM Enterprises, Inc. v. Budget Modular Workstations, Inc., Superior Court, judicial district of Hartford, Docket No. CV-05-4008900-S (Feb. 21, 2007, Hale, J.T.R.) (42 Conn.L.Rptr. 842) ("[A]lthough a proper pleading should set forth a particular statute upon which the plaintiff relies ... the failure to do so does not affect the validity of the pleading, but may be the proper subject of a request to revise"). This court agrees with the analysis of Baxt v. Smith, supra. Although the defendants filed a thirty-two-page request to revise (No. 103.00), the defendants did not raise in that pleading the issue of the plaintiffs’ failure to cite General Statutes § 52-555.
In this case, the defendants are sufficiently appraised of the nature of the action. For example, the operative complaint alleges that certain specified wrongful conduct on the part of the defendants "caused Enzo’s untimely death." Complaint, First through Eighth Counts, ¶22; see also id., Second and Sixth Counts, ¶33 ("As a result of the defendant’s failure to inform the plaintiff, the plaintiff’s decedent sustained an untimely death"); Third Count, ¶29 ("At all times relevant to this action, the plaintiff suffered extreme emotional distress and mental anguish as a result of her contemporaneous sensory perception of seeing Enzo DiMauro’s increased agitation, lessened breathing, and death in her arms"); Seventh Count, ¶28 ("Between April 20, 2016 and April 22, 2016, [the plaintiff] witnessed the effects of the medication on Enzo DiMauro, including increased agitation, lessened breathing, and eventually death in her arms"). The complaint also contains multiple references to the fact that the plaintiff is seeking to recover damages for funeral expenses. Complaint, First through Eighth Counts, ¶23 ("As a result of the defendant’s malpractice, the family was required to pay for funeral services"); Second and Sixth Counts, ¶36 ("As a result of the defendant’s failure to inform the plaintiff, the family was required to pay for funeral services"). The memoranda of law filed by the parties in connection with the subject motion are replete with references to General Statutes § 52-555.
The court concludes that the defendants were (and are) aware of the nature of the plaintiff’s action. To the extent the defendants seek to strike the complaint for failing to refer to General Statutes § 52-555, the motion is denied. Haag v. Tayco Corp., Superior Court, judicial district of New Haven, Docket No. CV-13-6039891-S (July 14, 2014, Nazzaro, J.) ("[T]he Superior Court in numerous cases has denied a motion to strike for failure to cite § 52-555 where the complaint sufficiently appraised the defendant of the nature of the plaintiff’s wrongful death claim ... [T]here is likewise no showing that the plaintiff’s failure to cite § 52-555 in the complaint has misled the defendants as to the nature of her claims. The plaintiff alleges that the defendants’ wrongful acts caused the decedent’s death and seeks damages including medical and funeral expenses. The parties’ supporting memoranda amply reference § 52-555 as the wrongful death statute" [citations omitted] ); Theroux-Acampora v. Saint Regis Health Center, Inc., Superior Court, judicial district of New Haven, Docket No. CV-09-5029129-S (June 14, 2010, Lager, J.) ("Although the complaint does not specifically cite to General Statutes § 52-555, it seeks damages for the wrongful death of the plaintiff’s decedent. Since that statute is the sole basis upon which an action that includes as an element of damages a person’s death or its consequences can be brought ... the failure to cite the statute is not fatal to this complaint ... In the context of the complaint’s allegations and the explicit statements with respect to the wrongful death statute in the plaintiff’s objection to the motion to strike, the court concludes that [the defendant] is sufficiently appraised that the cause of action alleged ... is for wrongful death and that the plaintiff is aware that she is limited to the damages for which the wrongful death statute provides").
B
In the alternative, the defendants move to strike paragraph 20 of the First and Fifth Counts of the complaint on the grounds that these paragraphs allege violations of certain federal regulations- namely, 42 C.F.R. § § 418.52 and 418.56- and that the foregoing regulations do not give rise to a private cause of action upon which relief may be granted. In response, the plaintiff argues that she does not attempt to assert independent causes of action based on the alleged regulatory violations. Rather, the plaintiff contends that she "[has] pled violations of these regulations as evidence of negligence" and as a result, the paragraphs should not be stricken. The court agrees with the plaintiff.
Part 418 of Title 42 of the Code of Federal Regulations applies to hospice care. 42 C.F.R. § 418.52 reads, in part, that "[the] patient has the right to be informed of his or her rights, and the hospice must protect and promote the exercise of these rights." That section goes on to set specific standards with respect to the following categories: "Notice of rights and responsibilities" "Exercise of rights and respect for property and person" and "Rights of the patient." 42 C.F.R. § 418.52(a)-(c). Part 418.56 sets specific standards for categories entitled, "[a]pproach to service delivery" " [p]lan of care" "[c]ontent of the plan of care" "[r]eview of the plan of care" and "[c]oordination of services." 42 C.F.R. § 418.56(a)-(e). Paragraph 20 of the First and Fifth Counts allege violations of certain standards established by these federal regulations, in connection with the plaintiff’s allegations of medical negligence.
Reading the allegations of the First and Fifth Counts generously to sustain their validity, and in light of the plaintiff’s affirmative statement that she asserted these federal regulatory violations "as evidence of negligence," the court reads the allegations of paragraph 20 to constitute specifications of negligent conduct by the defendant. As noted by our Supreme Court, "statutes, regulations, ordinances, and other safety codes can be considered as some evidence of the standard of care ..." Considine v. Waterbury, 279 Conn. 830, 864, 905 A.2d 70 (2006). Even when regulations cannot be used as grounds for a negligence per se instruction, "these regulations can be admitted ... as evidence of the standard of care because they will provide helpful guidance to the trier of fact ... Further, courts of other jurisdictions have allowed the trier of fact to consider regulations that prescribe safety standards as evidence of the standard of care even when the plaintiff was not within the class of individuals that the regulation was meant to protect." (Citations omitted.) Id., 279 Conn. 865. Thus, "it is permissible to plead a breach of a statutory or regulatory duty as evidence of negligence ..." Theroux-Acampora v. Saint Regis Heath Center, Inc., supra, Superior Court, Docket No. CV- 09-5029129-S. This is exactly what the plaintiff has done in paragraph 20, and the motion to strike is denied as to that paragraph of the First and Fifth Counts.
The plaintiff does not allege in her complaint, nor does she argue in the opposition memorandum, that by invoking the federal regulations at issue, she is attempting to plead a claim in negligence per se.
C
i
The defendants also move to strike the Second and Sixth Counts alleging claims in lack of informed consent. According to the defendants, these counts should be stricken because the plaintiff’s decedent was the patient, not the plaintiff herself As a result, the defendants argue without citation to legal authority- that DiMauro "lacks standing to bring an informed consent claim and so these counts must therefore be stricken." The defendants contend that, in asserting a lack of informed consent claim based on an alleged failure to inform the parent of a minor patient, "[the plaintiff is] attempting to create a new lack of informed consent claim." The court disagrees. To adopt the defendant’s argument would, in effect, bar a lack of informed consent claim in all cases where the plaintiff is an unemancipated minor. This would yield an absurd result that is inconsistent with established principles of Connecticut law.
By challenging the plaintiff’s standing to maintain the lack of informed consent claims, the defendants are challenging the subject matter jurisdiction of the court with respect to those claims. See Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009) ("[t]he issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss" [internal quotation marks omitted] ); see also Christ-Janer v. A.F. Conte & Co., 8 Conn.App. 83, 90, 511 A.2d 1017 (1986) ("[w]here a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause [of action]"). The proper procedural vehicle for challenging a party’s standing is a motion to dismiss, not a motion to strike. Practice Book § 10-30(a) provides, in relevant part, that "[a] motion to dismiss shall be used to assert: (1) lack of jurisdiction over the subject matter ..." (Emphasis added.) Despite the fact that the issue of standing is presented improperly to the court on a motion to strike, the court addresses it because it is required to do so. "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented ..." (Emphasis added; internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 812, 967 A.2d 1 (2009).
"Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented." (Internal quotation marks omitted.) Carrubba v. Moskowitz, 274 Conn. 533, 550-51, 877 A.2d 773 (2005). "One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy ... When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue ... [Because] [s]tanding requires no more than a colorable claim of injury ... a [party] ordinarily establishes ... standing by allegations of injury [that he or she has suffered or is likely to suffer]. Similarly, standing exists to attempt to vindicate arguably protected interests." (Internal quotation marks omitted.) Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co., 312 Conn. 714, 728, 95 A.3d 1031 (2014). "[S]tanding is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved ... The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] ... Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected." (Internal quotation marks omitted.) Id., 729. "When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the [party] has a legally protected interest [that may be remedied]." (Internal quotation marks omitted.) Steeneck v. University of Bridgeport, 235 Conn. 572, 579, 668 A.2d 688 (1995).
With these principles in mind, the court addresses the question of whether the plaintiff has standing to assert claims in lack of informed consent. "The informed consent doctrine derives from the principle that [e]very human being of adult years and sound mind has a right to determine what shall be done with his own body ..." (Internal quotation marks omitted.) Duffy v. Flagg, 279 Conn. 682, 691, 905 A.2d 15 (2006). However, in Connecticut, unemancipated minors lack the capacity to consent to medical procedures. As held by our Supreme Court, "pursuant to General Statutes § 46b-150d, a minor who is emancipated ... (1) ... may consent to medical, dental or psychiatric care, without parental consent, knowledge or liability ... [It] is implicit that unemancipated minors do not have this ability ." (Citations omitted; emphasis added; internal quotation marks omitted.) In re Cassandra C., 316 Conn. 476, 497, 112 A.3d 158 (2015). "[The] general rule in this state is that minors are presumed to be incompetent to make medical decisions." Id., 498.
As unemancipated minors are presumed to be incompetent to make medical decisions, those decisions must be made by a parent or legal guardian. Thus, as noted by Judge (now Justice) Ecker in a wrongful death action involving a premature newborn and allegations of lack of informed consent, "[in] this case ... we are concerned with the bodily integrity of the child and the decision-making rights of the parents ." (Emphasis added.) Hanes v. Solgar, Inc., Superior Court, judicial district of New Haven, Docket No. CV- 15-6054626-S (Jan. 13, 2017, Ecker, J.) (63 Conn.L.Rptr. 728, 734 n.8). The court holds that the defendants owed a legal duty to the plaintiff, in accordance with our law of informed consent, to permit her to exercise decision-making rights concerning the body of her unemancipated child. As held by the court in Draper v. Jasionowski, 372 N.J.Super. 368, 374, 858 A.2d 1141 (N.J.Super.App.Div. 2004), "a child in any stage of [unemancipated] minority would require informed consent obtained by a parent or guardian before submitting to a medical procedure or treatment. Clearly, [the] law grants a child the right to assert a cause of action by the parent, as guardian ad litem, if the parent was not warned by way of informed consent of the dangers of treatment." The plaintiff has standing to maintain the claims set forth in the Second and Sixth Counts.
In Hanes v. Solgar, Inc., the plaintiffs claimed that the defendant, Yale-New Haven Hospital, "had a duty under the doctrine of informed consent, to advise [the minor decedent’s] parents/guardians of the risks, benefits and alternatives in connection with this aspect of his treatment, and its failure to obtain informed consent is actionable." (Citations omitted.) Hanes v. Solgar, Inc., supra, Superior Court, Docket No. CV-15-6054626-S (63 Conn.L.Rptr. 732). Of note is that, in moving to strike the informed consent claim, the defendant did not argue that the plaintiffs lacked standing to assert the claim.
ii
Additionally, the defendants argue that the informed consent claims should be stricken because they fail to allege the necessary elements of that cause of action. "Traditionally, a physician’s duty to disclose information was measured by a professional standard which was set by the medical profession in terms of customary medical practice in the community ... [However, in] Logan v. Greenwich Hospital Ass’n, [191 Conn. 282, 292-93, 465 A.2d 294 (1983)], [Connecticut] adopted a lay standard and stated that under the doctrine of informed consent, a physician is obligated to provide the patient with that information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy ... [These] four elements ... must be addressed in the physician’s disclosure to the patient in order to obtain valid informed consent. [I]nformed consent involves four specific factors: (1) the nature of the procedure; (2) the risks and hazards of the procedure; (3) the alternatives to the procedure; and (4) the anticipated benefits of the procedure ... Thus, [u]nlike the traditional action of negligence, a claim for lack of informed consent focuses not on the level of skill exercised in the performance of the procedure itself but on the adequacy of the explanation given by the physician in obtaining the patient’s consent ...
"Our Supreme Court has stated: All of the informed consent cases in Connecticut have involved the adequacy of information disclosed regarding the procedure and treatment to be performed ... Thus, Connecticut cases in this area uniformly involve claims for lack of informed consent rising from risks associated with the treatment or procedure itself, not from risks associated with failure to properly diagnose or to provide treatment or testing ...
"Furthermore, the Appellate Court has stated: Typically, the basis for claiming a lack of informed consent is a failure to make a sufficient disclosure of the risks of or alternatives to a certain medical procedure or treatment ..." (Citations omitted; emphasis in original; internal quotation marks omitted.) Rich v. Foye, 51 Conn.Supp. 11, 30-31, 976 A.2d 819 (2007).
Here, the defendants argue that the Second and Sixth Counts should be stricken because they are based on the claim that the defendants had a responsibility to disclose to the plaintiff that a failure to recognize indications of the decedent’s respiratory distress- which, implicitly, the plaintiff failed to recognize- in conjunction with the administration of opioid medications, created a material risk of death. According to the defendants, by these claims, the plaintiff "is asserting that the defendants had an obligation to inform her of the potential risks of what might occur if they failed to appropriately inform and educate [the plaintiff]. Such assertions do not support a claim based on lack of informed consent." The court rejects the argument.
To begin, in advancing this argument, the defendants urge a narrow reading of the plaintiffs’ informed consent claims. The Second and Sixth Counts, which must be read generously by the court, allege that the defendants "had a responsibility to disclose to [the plaintiff] all known material risks ... in conjunction with administering opioids to this child." (Emphasis added.) Complaint, Second and Sixth Counts, ¶28. The alleged failure to recognize indications of respiratory distress is included within the category of "all known material risks" alleged by the plaintiff; it is not exclusive of other possible known material risks. Thus, even if the court accepted the defendants’ argument that risks associated with her lack of knowledge cannot support the claim, the plaintiff has sufficiently alleged a failure to disclose other risks, however unspecified, in connection with the administration of opioids to the decedent.
Moreover, the defendants’ argument, which is unsupported by citation to any legal authority, is rejected on the merits. "In order to prevail on a cause of action for lack of informed consent, a plaintiff must prove both that there was a failure to disclose a known material risk of a proposed procedure and that such failure was a proximate cause of [the] injury." Shortell v. Cavanagh, 300 Conn. 383, 388, 15 A.3d 1042 (2011). The plaintiff has alleged these elements sufficiently, and the motion to strike is denied as to Counts Two and Six.
D
The defendants also move to strike the Third and Seventh Counts alleging bystander emotional distress. "Bystander emotional distress is a derivative claim, pursuant to which the bystander who witnesses another person (the primary victim) suffer injury or death as a result of the negligence of a third party seeks to recover from that third party for the emotional distress that the bystander suffers as a result. Courts historically have been reluctant to recognize this cause of action ... * * * [Courts] have grappled with the best way to afford a remedy for a bystander’s genuine emotional distress while placing reasonable limits on the scope of such liability." Squeo v. Norwalk Hospital Ass’n, 316 Conn. 558, 564-65, 113 A.3d 932 (2015).
"[A] bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions: (1) he or she is closely related to the injury victim, such as the parent or sibling of the victim; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim’s condition or location; (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury; and (4) 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." Clohessy v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852 (1996).
In Squeo v. Norwalk Hospital Ass’n, supra, 316 Conn. 558, our Supreme Court considered a claim of bystander emotional distress in the context of alleged medical malpractice. In that case, the court rejected "a per se rule denying all bystander emotional distress claims arising from medical malpractice" on the grounds that such a rule "would run counter to both the letter and the spirit of our decision in Clohessy ." Id., 574. While rejecting application of a per se rule barring such claims, the Squeo court imposed two additional requirements on bystander claims asserted in medical negligence cases. First, and "subject to the four conditions we established in Clohessy ; ... a bystander to medical malpractice may recover for the severe emotional distress that he or she suffers as a direct result of contemporaneously observing gross professional negligence such that the bystander is aware, at the time, not only that the defendant’s conduct is improper but also that it will likely result in the death of or serious injury to the primary victim." (Citation omitted.) Id., 580-81. Second, "a bystander cause of action will lie only when the bystander’s psychological injuries are both severe and debilitating, such that they warrant a psychiatric diagnosis or otherwise substantially impair the bystander’s ability to cope with life’s daily routines and demands." Id., 585.
In this case, the plaintiff fails to satisfy the first additional requirement of Squeo, namely, that she suffered severe emotional distress as a direct result of contemporaneously observing gross professional negligence such that the bystander is aware, at the time, not only that the defendant’s conduct is improper but also that it will likely result in the death of or serious injury to the primary victim. "Gross negligence in the context of medical negligence means that type of conduct so egregious that expert testimony is unnecessary to prove that a breach of a professional standard occurred. It is conduct so gross as to be clear even to a [layperson] that malpractice occurred ... It involves obvious errors such as leaving foreign objects in a patient’s body after surgery, or administering medications ... that are prominently labeled as unsuitable for a particular patient." (Citation omitted; internal quotation marks omitted.) Wheelis v. Backus Corp., Superior Court, judicial district of New London, Docket No. CV-14-6022485-S (Nov. 12, 2015, Vacchelli, J.). The plaintiff does not allege any conduct by the defendants that amounts to gross negligence. In this case, the plaintiff claims that she suffered bystander emotional distress as a result of "witness[ing] the effects of the medication on [the decedent] ..." (Emphasis added.) This does not constitute the contemporaneous observation of any alleged gross negligence by the defendants. Moreover, the delivery of pain medications to be administered to the decedent- even if characterized as "high risk" medications, as alleged by the plaintiff- does not, without more, rise to the level of gross negligence. See, e.g., Wheelis v. Backus Corp., supra, Superior Court, Docket No. CV-14-6022485-S ("The alleged malpractice in this case- inter alia, performing an endoscopy on a patient on Coumadin and aspirin, and the administration of a Heparin drip after the patient experienced left hemiparesis, mumbling, and slurred speech in recovery- is not so obvious as to be recognized as malpractice within the comprehension, common knowledge and experience of laypersons" [emphasis omitted] ). The plaintiff’s claims in bystander emotional distress fail.
E
Also challenged by the defendants are the plaintiff’s claims of negligent infliction of emotional distress, alleged in the Fourth and Eighth Counts. "In Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978), this court for the first time recognized a cause of action for negligent infliction of emotional distress. We continually have held that in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove 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 ... This part of the Montinieri test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear were reasonable in light of the defendants’ conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the defendants’ conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 446-47, 815 A.2d 119 (2003). "To prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove: [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.) Grasso v. Connecticut Hospice, Inc., 138 Conn.App. 759, 771, 54 A.3d 221 (2012). "The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm ... In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm." (Internal quotation marks omitted.) Stancuna v. Schaffer, 122 Conn.App. 484, 490, 998 A.2d 1221 (2010).
The defendants contend that, at the time of the decedent’s death, they owed no duty of care to the plaintiff because "the allegations relied upon to support the claim of emotional distress are allegations involving care to the minor decedent"- not to the plaintiff. Moreover, the defendants argue that where a complaint alleges negligent acts as to a parent, but the acts result in injuries to the child only, a cause of action in negligent infliction of emotional distress has not been stated, notwithstanding the recitation of the required elements of the cause of action. The plaintiff counters that a parent may maintain an action for negligent infliction of emotional distress in connection with care rendered to a child.
The cases cited by the parties in support of their respective positions are readily distinguishable from the facts of this case, as they involve claims asserted in connection with prenatal care and delivery. Compare D’Attilo v. Viscarello, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-4003079-S (Aug. 15, 2005, Dooley, J.) (cited by defendants, involving alleged medical malpractice arising out of delivery and birth of plaintiff’s child), with He v. Litchfield County Obstetrics & Gynecology, P.C., Superior Court, judicial district of Litchfield, Docket No. CV-10-6002542-S (Feb. 29, 2012, Roche, J.) (cited by plaintiff, involving emotional distress allegedly sustained by plaintiff during labor and delivery). These cases involve the legal duties owed to a mother during the birthing process. He v. Litchfield County Obstetrics & Gynecology, P.C., supra, Superior Court, Docket No. CV-10-6002542-S ("Connecticut courts have recognized a mother’s claim for negligent infliction of emotional distress during childbirth"); D’Attilo v. Viscarello, supra, Superior Court, Docket No. CV-054003079-S ("[As] a parent giving birth, the defendants had an independent duty toward the mother, ..."); see also Best v. CCWC Professional Practice Group, LLC, Superior Court, judicial district of Danbury, Docket No. CV-18-6025335-S (Sept. 23, 2019, D’Andrea, J.) ("Of the cases that have dealt with this issue ... the majority of these cases make it clear that the birthing mother is an active participant in the birthing process and is owed a duty of care by the physician or other medical provider and, as such, has a valid claim for negligent infliction of emotional distress"). Of course, this action does not involve wrongful conduct that allegedly occurred during labor. The conduct at issue allegedly occurred when the decedent was almost three years of age.
More factually similar is the case of Abbhi v. AMI, Superior Court, judicial district of New Haven, Docket No. CV-96-0382195-S (June 3, 1997, Silbert, J.) (19 Conn.L.Rptr. 493). Abbhi involved the death of a nine-year-old child who suffered a fatal anaphylactic reaction to peanuts. In that case, the administrator of the child’s estate brought a claim in medical malpractice in connection with "the care and treatment of the decedent relative to her known allergy to peanuts ..." Id. In addition, and among other alleged causes of action, the child’s mother brought a claim in negligent infliction of emotional distress, on the grounds that the mother "saw her daughter struggle for air, suffocate and ultimately die, thus causing her severe emotional distress. [The mother] alleges that because she had been improperly informed as to [the child’s] condition, and because the proper medication had not been prescribed, she was unprepared to prevent or respond to her [child’s] reaction, and that this also produced severe emotional distress." Id., 494. As further described by the court in Abbhi, the plaintiff mother "claims that she consulted with the defendant doctors and/or members of their associated medical practices for the purpose of receiving advice, instruction, and consultation concerning her [child’s] peanut allergy and asthma. Further, [s]he alleges that as [her child’s] caregiver and guardian, the individual who would be responsible for carrying out and overseeing the physicians’ instructions, she was in a patient/doctor relationship with these physicians who owed her a duty of care. She also alleges that the physicians and/or members of their associated medical practice knew or should have known that their alleged failure to properly instruct, advise and consult with her involved not only an unreasonable risk of harm to her child, but also an unreasonable risk of distress to [the plaintiff mother] if that harm were caused. She asserts that when her daughter did, in fact, experience an anaphylactic reaction ..., she, [the plaintiff mother], was helpless to respond because the physicians had inadequately advised and instructed her, and that, as a result, she suffered and continues to suffer extreme emotional distress." Id., 501-02. The foregoing resembles the plaintiff’s claims here that the defendants "failed to involve the family in the goal and plan of care" and "failed to instruct Caregiver/Mother on the proper use of high risk medications per physician orders ..." Complaint, Fourth and Eighth Counts, ¶20(c), (d).
In concluding that the plaintiff mother failed to state a claim in negligent infliction of emotional distress, the Abbhi court reasoned that the childbirth cases, "rather than suggesting the existing of a general duty to any parent arising out of the medical care of a child, demonstrate that in Connecticut a doctor-patient relationship does not exist between a parent and physician caring for a child unless the parent also receives some actual medical care or attention." Abbhi v. AMI, supra, 19 Conn.L.Rptr. 502. Without a health care provider-patient relationship, no duty of care exists to support a claim for negligent infliction of emotional distress. As held by the court in Abbhi, "no claim is being made here that any of the medical malpractice defendants were actually providing medical care and treatment to [the plaintiff mother] at any time pertinent to the allegations of this complaint. [The plaintiff mother asserts] that when she sought the advice of these defendants, and they undertook to advise and guide her, a duty was established, but she provides no support for this legal proposition ..." Id., 503; Clark v. New Britain General Hospital, Superior Court, judicial district of New Britain, Complex Litigation Docket, Docket No. X03-CV-99-0496131-S (May 9, 2002, Aurigemma, J.) (certain counts of the complaint cannot be interpreted to state cause of action in negligent infliction of emotional distress because "the alleged malpractice was committed against [an infant child], not against his parents"); Ortiz v. Waterbury Hospital, Superior Court, judicial district of Waterbury, Docket No. CV-99-0154112-S (March 9, 2000, Pellegrino, J.) (26 Conn.L.Rptr. 547) ("[I]n order for the plaintiff mother to sustain a claim for the negligent infliction of emotional distress she must have a physician-patient relationship with the defendants which of course is not the situation in this case"). The plaintiff has not stated viable claims in negligent infliction of emotional distress.
CONCLUSION
For the foregoing reasons, the motion to strike is DENIED as to the First, Second, Fifth, and Sixth Counts; the motion to strike is GRANTED as to the Third, Fourth, Seventh, and Eighth Counts.