Medical Malpractice Cases In Connecticut: Infertile Grounds For Bystander Emotional Distress Claims

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1 Medical Malpractice Cases In Connecticut: Infertile Grounds For Bystander Emotional Distress Claims By Thomas G. Ciarlone, Jr.* TABLE OF CONTENTS Table of Contents... 1 I. Introduction... 1 II. The Leading Cases... 3 A. Strazza v. M ckittrick... 3 B. Amodio v. Cunningham... 4 C. M aloney v. Conroy... 5 D. Clohessy v. Bachelor Background The D ecision The Elements of the Clohessy Test III. The Split Between the Superior Courts A. Wildman v. Connecticut Allergy and Asthma A ssociates B. Drew v. William Backus Hospital IV. Conclusion I. Introduction Ronda Drew and Michael Anzalone were once the proud parents of a little girl, Cassidy Ann. Due to an unfortunate series of events, however, she never reached her second birthday.' Early on a summer afternoon in 1997, Cassidy Ann began to exhibit signs of irritability and, later in the day, spiked a fever and started vomiting. 2 Fearing the worst, Ronda and Michael * B.A., 1998, New York University;J.D., 2001, Cornell Law School. Mr. Ciarlone is a litigation associate at the Stamford office of Cummings & Lockwood, LLC. He can be reached at This article is dedicated to my wife, and to my Mom and Dad. Their support has made all the difference. I Drew v. William Backus Hosp., No , 1999 WL , at *1 (Conn. Super. Ct. Sept. 30, 1999). 2 Id.

2 QUINNIPIAC HEALTH LAW [Vol. 6:1 rushed their daughter to the emergency room of a local hospital. 3 The child was admitted to the pediatric unit and a doctor there assumed responsibility for her treatment.' Although Cassidy Ann showed symptoms of dehydration, organ stress, and anemia, the attending physician left her unsupervised for several hours.' Subsequently, at around 9:30, the doctor assured Michael that his daughter was stable and that he could leave for his night job without concern." Despite these assurances, the infant went into cardiopulmonary arrest within an hour. 7 Upon learning of this turn of events, Michael rushed back to the hospital, where he witnessed repeated attempts to revive Cassidy Ann. 8 She ultimately succumbed to death.' Many Connecticut trial courts have established precedent providing that; as a matter of law, Michael could not recover against the doctor or the hospital for the emotional distress he allegedly suffered as he stood beside Cassidy Ann during her final moments of life.' Interpreting a line of Connecticut Supreme Court decisions," these courts have fashioned a blanket rule barring claims for bystander mental anguish in the context of medical malpractice.'i But other courts, in a different series of opinions, have rejected this bright-line approach in favor of a flexible, fact-intensive one.' It is difficult to predict how, or even whether, an appellate authority will resolve this debate. One thing, however, is clear: should Connecticut definitively recognize a cause of action for 3 Id. 4 Id. 5 Drew, 1999 AWL , at *1. 6 At which time the doctor again left Cassidy Ann unattended. Id. 7 Id. 8 Id. 9 The child was pronounced dead at 11:35 p.m., less than eight hours after her admission to the hospital. Drew, 1999 WL , at *1. The foregoing account, see supra notes 1-8 and accompanying text, assumes the truth of the allegations of the complaint filed by her parents. 10 The Drew court, incidentally, did allow Ronda and Michael to proceed against both the doctor and the hospital W!, , at *8. See also infia Part III.B. I ' See infra Parts II.A-D. 12 See infra Part III.A. 3 See infra Part II.B.

3 2002] MEDICAL MALPRACTICE CASES bystander emotional distress in medical malpractice cases, plaintiffs will almost never prevail on the merits. II. The Leading Cases A. Strazza v. McKittrick The split in authority among the trial courts finds its genesis in 1959, when the Connecticut Supreme Court handed down its decision in Strazza v. McKittrick.' 4 In that case, the plaintiff was washing dishes in her kitchen when the defendant drove a truck into her back porch. 15 Strong enough to demolish the porch, the impact produced "a terrific crash" that "shook the house, causing the plaintiff to drop the dishes [and] lose her balance... "" Minutes earlier, she had told her son to wait for her on the porch.1 7 Concerned that the boy might have been hurt in the crash, the plaintiff hurried outside, only to discover that he had escaped unharmed.' 8 Although relieved, she still insisted that she had been traumatized by the event. 9 Ultimately, the plaintiff-who had seen doctors in the past for a nervous condition but had not required treatment for over six months-sought psychiatric care for new anxieties that were supposedly stimulated by the fear of injury to her child. 2 The plaintiff sued the driver for her "fright" and "nervous shock. '2 1 While prepared to let her recover for her worries over her own safety, the Court held that her fear about the welfare of her son was not an actionable injury. 2 2 Any such fear, the Court concluded, was "too remote in the chain of causation to permit recovery. " A.2d 149 (Conn. 1959). 15 Id. at Id. at Id. 18 Strazza, 156 A.2d at Id. 20 Id. 21 Id. at Strazza, 156 A.2d at Id. at 152.

4 QUINNIPIAC HEALTH LAW (Vol. 6:1 B. Amodio v. Cunningham In Amodio v. Cunningham, 24 the Connecticut Supreme Court was again presented with a claim for bystander emotional distress, although this time in a medical malpractice case. The plaintiff's daughter, Jennifer, had been under the care of the defendant physicians, who were treating her for a respiratory condition. 25 Once, when Jennifer "began to wheeze heavily and ha[ve] difficulty breathing," her mother called the defendants. 26 They did not examine her, but instead chose to prescribe an antibiotic and an antihistamine. 27 Over the following week, Jennifer's condition deteriorated. 28 The plaintiff, in an abundance of caution, drove her daughter to the defendants' offices, where Jennifer was examined and advised to return home. 29 Early the next morning, however, 'Jennifer began gasping for breath." 3 "' Her mother administered mouth-to-mouth resuscitation, but Jennifer's heart stopped and she was rushed to an area hospital. 3 " Two days later, Jennifer died after she was taken off life support. 3 2 In her individual capacity, the plaintiff sued the defendants for the "emotional harm caused by witnessing the death of her daughter," which was allegedly the result of the defendants' misdiagnosis." Because Connecticut had not yet recognized any such tort, the plaintiff advocated the adoption of a cause of action for bystander emotional distress, as established by the California Supreme Court in Dillon v. Legg. 34 In Dillon," 5 the Court emphasized that the foreseeability of harm is the central analysis in any claim for bystander mental anguish. 36 It announced three factors to consider in deciding A.2d 6 (Conn. 1980). 25 Id. at Id. 27 Id. 28 Amodio, 438 A.2d at Id. 30 Id. 31, Id. 32 Amodio, 438 A.2d at Id. at Id. at P.2d 912 (Cal. 1968) 36 Id. at 920 ("Since the chief element in determining whether [a] defendant owes a duty or an obligation to [a] plaintiff is the foreseeability of the risk, that factor will be of prime concern in every case.").

5 2002] MEDICAL MALPRACTICE CASES 5 when emotional harm to a bystander is reasonably foreseeable: (1) [w]hether [the] plaintiff was located near the scene of the accident[;]... (2) [w]hether the shock resulted from a direct emotional impact upon [the] plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence[; and] (3) [w]hether [the] plaintiff and the victim were closely related... While the majority rule had been to deny recovery for bystander mental anguish, the Amodio Court acknowledged that a "growing number of jurisdictions, beginning in 1968 with the California decision in Dillon v. Legg, have recently recognized a cause of action for emotional distress in favor of a bystander to the negligently caused injury to another party. '38 According to the Court, however, the plaintiff could not recover because her daughter's injuries manifested themselves long after the alleged misdiagnosis. 39 In this way, the plaintiff did not satisfy the second Dillon factor. Stated differently, her claim failed because she "[m]erely observ[ed] the consequences of the defendant[s'] negligence toward [Jennifer]... without perceiving the actual negligent behavior... "40 Neither accepting nor rejecting Dillon, the Court limited its holding to the facts. 41 It thereby reserved judgment on the existence of a cause of action for bystander emotional distress in Connecticut. C. Maloney v. Conroy Eight years later, in Maloney v. Conroy, 42 the Connecticut Supreme Court had another opportunity to review a claim for by- S7 Id. The Court later elaborated on these factors, observing that, for example, the defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so. Similarly... [t]he defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone distant from the accident will suffer more than a temporary emotional reaction. Dillon, 441 P.2d at Amodio, 438 A.2d at 8, 9 (citations omitted). 39 Id. at Id. at 11, 12 (emphasis added). 41 Id. at A.2d 1059 (Conn. 1988).

6 QUINNIPIAC HEALTH LAW [Vol. 6:1 stander mental anguish in a medical malpractice case. As a factual basis for her claim, the plaintiff alleged that she "was present... while her mother was being treated by the defendants [and had]... observed her mother's health deteriorate under the treatment of the defendants and culminate in death." 43 The plaintiff further alleged that her mother had died because "the defendants... [had] fail[ed] to care for her in a reasonably competent manner Because she had not suffered "an injury contemporaneously with the sensory perception of the alleged negligent conduct of the defendants," the plaintiff conceded that she would not prevail under Dillon. 4 5 Still, she stubbornly refused to admit defeat. Instead, the plaintiff urged the Court to consider her claim in light of Ochoa v. Superior Court, 46 which had modified Dillon by relaxing the contemporaneous sensory perception ("CSP") requirement. 47 In Ochoa, an adolescent became critically ill while confined at ajuvenile detention facility. 48 He was vomiting, hallucinating, and coughing up blood; his skin was pale and clammy; and he was dehydrated because his body was unable to retain fluids. 49 His mother, the plaintiff, watched while he experienced fevers, convulsions, and pains in his side." 0 As his condition worsened, she petitioned infirmary staff to release her son to the care of a private physician. "1 Staff members refused and, later in the day, asked her to leave the facility. 52 In her absence, the boy died overnight. 3 Although the defendants' negligent conduct 4 and the plaintiffs emotional distress were not subsumed under a single 4 3 Id. at Id. 45 Id. at 1061 (internal quotes omitted). 4(1 703 P.2d I (Cal. 1985). 47 Id. at Id. at Id. at Ochoa, 703 P.2d at Id. 52 Id. at Id. 54 The plaintiff alleged that the defendants were negligent because they had examined her son only twice during the entire course of his illness; had failed to transfer him to the intensive care unit of a hospital; had ordered no X-rays despite "repeated communications of pain.., below the rib cage"; and had performed neither blood nor

7 2002] MEDICAL MALPRACTICE CASES "brief and sudden occurrence," 55 the California Supreme Court allowed her to recover for her emotional distress. 56 The court explained that a plaintiff satisfies the CSP requirement if two conditions are met. First, the plaintiff must observe both the defendant's conduct and the victim's injury. 57 Second, the plaintiff must appreciate that the defendant's conduct caused the injury. 58 The Maloney Court admitted that the plaintiff had "stated a cause of action for emotional disturbance under the Dillon criteria as modified in Ochoa." 59 It was not, however, "inclined to follow the lead of... California... in allowing a bystander to recover for emotional disturbance resulting from malpractice upon another person that a bystander may have observed." 6 " As a practical matter, however, the court dismissed the claim because the plaintiff had not met the CSP requirement, as enunciated in Dillon. 6 1 By basing its decision on this narrow ground, the court - as in Amodio 62 - did not expressly hold that Dillon had no future in Connecticut. 63 D. Clohessy v. Bachelor In fact, less than a decade later, the Supreme Court broadly held that Connecticut does, after all, recognize a cause of action for bystander emotional distress. 64 The year was 1996 and the case was Clohessy v. Bachelor. 6" 1. Background Along with her two children, Liam and Brendan, Mary Clohessy emerged from a New Haven church on March 22, urine analysis, despite symptoms suggesting the need for such tests. Ochoa, 703 P.2d at Id. at Id. at Id. at Ochoa, 703 P.2d at Maloney, 545 A.2d at Id. 61 Id. at See supra notes and accompanying text. 63 Maloney, 545 A.2d at "We are not inclined to resume our dalliance with the Dillon guidelines that we held not to be satisfied when we disposed of the malpractice emotional disturbance claim in Amodio that was so similar to the case before us." Id. 64 See generally Clohessy v. Bachelor, 675 A.2d 852 (Conn. 1996). 65 Id.

8 QUINNIPIAC HEALTH LAW [Vol. 6: Together, the three approached the street and stepped off the curb into a crosswalk. 67 Mary stood between her boys, flanked on the left by Brendan, on the right by Liam. 6 " Moments later, a car appeared out of nowhere. 6 9 In an instant, before anyone could react, it was too late: Brendan was knocked to the ground after the passenger-side mirror sideswiped his head. v Cradling him in her lap, Mary held Brendan until his death." Nearby, Liam witnessed these events from beginning to end. 2 Mary and Liam filed suit against the driver, seeking recovery for their alleged mental distress. 7 3 The question before the court, then, was "whether a parent and sibling can recover damages for the emotional anguish they sustained by witnessing the parent's other young child being fatally injured as a result of an accident caused by the negligence of the defendant." 74 Writing for the Court, Judge Berdon answered in the affirmative 75 and, in substance, adopted Dillon as originally decided in California The Decision Before announcing the rationale for its holding, the court noted that neither Amodio nor Maloney had discarded the Dillon criteria. In each case, "the factual scenario [simply had not] present[ed] the court with an opportunity to make a definitive ruling on whether to recognize a cause of action for bystander emotional distress." 7 7 As another preliminary matter, the Court suggested that Strazza - then almost forty years old - was weak precedent: it "did not provide this court with an analysis for rejecting bystander emotional distress; rather, [Strazza]... relied on the state of the law in other jurisdictions at that time in arriv- 66 Id. at Id. 68 Clohessy, 675 A.2d at Id. 70 Id. 71 Id. 72 Clohessy, 675 A.2d at Id. at Id. at Id. 76 That is, without the modifications set forth in Ochoa. See supra notes and accompanying text. 77 Clohessy, 675 A.2d at 859.

9 2002] MEDICAL MALPRACTICE CASES ing at its conclusion. 7 8 The stage was at last set for the court to determine the fate of bystander emotional distress in Connecticut. The Court first had "to determine whether a tortfeasor may owe a legal duty to a bystander. '79 While hornbook law suggests that no universal test for duty exists, the "threshold inquiry has always been whether the specific harm alleged... was foreseeable to the defendant." 80 To this end, the court harkened back to its 1941 decision in Orlo v. Connecticut Company. 8 ' In Orlo, the court held that "where results which are regarded as proper elements of recovery as a consequence of physical injury are caused by fright or nervous shock due to negligence, recovery should be permitted.". 2 Although it conceded that the plaintiff, Angelo Orlo, had sued for fear of his own safety, the Clohessy court opined that "the sight of a loved one being injured can result in an emotional injury that is no less foreseeable than that experienced as the fear of injury to oneself." 83 A duty does not, however, arise just because harm is foreseeable. 84 Having resolved that bystander emotional distress is "quite literally foreseeable," the court turned to the next stage of analysis." Accentuating the obvious, it remarked that a remedy does not exist for the violation of every duty, since "the law... [must] limit the legal consequences of wrongs to a controllable degree...."6 For that reason, the "final step in the duty inquiry... is to make a determination of... fundamental policy.., as to whether the defendant's responsibility should extend to" a particular harm, however foreseeable. 7 In the end, the court proclaimed that a tortfeasor, who breaches a duty through negligent conduct, should be liable for 78 Id. 79 Id. 80 Id. (citation and internal quotes omitted) A.2d 402 (Conn. 1941). 82 Id. at Clohessy, 675 A.2d at Id. at 860. "A simple conclusion that the harm to the plaintiff was foreseeable.. cannot by itself mandate a determination that a legal duty exists." Id. (internal quotes and citation omitted). 85 Id. (internal quotes and citation omitted). 86 Clohessy, 675 A.2d at 860 (internal quotes and citation omitted). 87 Id. (internal quotes and citation omitted).

10 QUINNIPIAC HEALTH LAW [Vol. 6:1 the emotional distress of a bystander who witnesses such conduct. It felt that, as a matter of public policy, "the interest in personal emotional stability is worthy of legal protection against unreasonable conduct." 8 At the same time, the court understood that its recognition of a cause of action for bystander emotional distress opened the door to unlimited liability. "[I]t would be an entirely unreasonable burden," Justice Berdon wrote, "if the defendant who has endangered one person were to be compelled to pay for the lacerated feelings of every other disturbed by reason of it...."89 The court thus articulated a rigorous test for bystander mental anguish. Consisting of four parts, the test aimed at limiting liability to situations in which defendants should clearly foresee that their actions might cause onlookers to undergo emotional distress The Elements Of The Clohessy Test As a threshold matter, the bystander must be closely related to the victim." 1 Although the court declined to exhaustively enumerate the relationships that would qualify under this murky standard, it did indicate that bystanders could recover for witnessing harm to their siblings, spouses, parents, and children. 9 2 Second, as a function of causation, the emotional injury must trace itself to one of two discrete sources. Specifically, the bystander's distress must result either from contemporaneously observing the negligent conduct of the defendant, or from "viewing the victim immediately after the injury causing event if no material change has occurred with respect to the victim's location and condition." 9 In rationalizing the preceding requirement, the court submitted that "the greater the lapse of time, the less likely it is that the plaintiff will suffer the initial shocking experience of contemporaneous observation of serious injury 88 Id. (quoting Portee v. Jaffee, 417 A.2d 521 (N.J. 1980)) (internal quotes omitted). 89 Id. at 862. (internal quotes and citation omitted). 90 Clohessy, 675 A.2d at Id. at Id. ("We leave to another day the question of what other relationships may qualify."). 9 Clohessy, 675 A.2d at 863 (citation omitted).

11 2002] MEDICAL MALPRACTICE CASES [and] the grisly effects thereof." 4 Third, the primary victim must suffer substantial harm, which results in either death or serious injury. 95 The court acknowledged that minor injuries can also occasion emotional disturbances in bystanders, 6 but refused to provide for liability under such circumstances. "Although the tortfeasor takes his victim as he finds him or her," an undivided court determined that "it is essential that the liability for bystander emotional distress be circumscribed." 97 Fourth and finally, the bystander must experience acute emotional distress - "a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances." 98 Such distress is actionable, however, even if it does not physically manifest itself 9 In any event, the Court surmised, the emotional injury must go "well beyond simple mental pain [or] anguish." 1 0 Indeed, if it is to support a claim "for mental pain and anguish over injury to a third person," the distress must be "both severe and debilitating. ''" Taken alone, Clohessy made perfect sense. For one thing, it announced a bright-line rule: Connecticut recognizes a cause of action for bystander emotional distress. For another, the decision fashioned a simple legal standard around four readily accessible elements. As a practical matter, however, Clohessy has inspired its fair share of confusion. In particular, the Superior Courts have 94 Id. at 863 n Id. at 864. "[T]he direct victim of the traumatic injury must suffer such harm that it can reasonably be expected that one in the [bystander's] position would suffer serious mental anguish from the experience." Id. (internal quotes and citation omitted). 96 Clohessy, 675 A.2d at 864. For example, the court hypothesized that "[t]o a sensitive parent, witnessing a minor injury to his or her child could produce an emotional response and result in serious injury." Id. 97 Id. 98 Id. (internal quotes and citation omitted). The Court articulated "[a] non-exhaustive list of examples of serious emotional distress[:]... neuroses, psychoses, chronic depression, phobia and shock." Clohessy, 675 A.2d at 865 (internal quotes and citation omitted). 99 Id. (quoting Delott v. Roraback, 426 A.2d 791, 793 (Conn. 1980)). "[A] plaintiff may recover damages in a personal injury action for pain and suffering even when... evidenced exclusively by the plaintiff's subjective complaints."id. 100 Id. at 865 (internal quotes and citation omitted). IM Clohessy, 675 A.2d at 865 (internal quotes and citation omitted).

12 QUINNIPIAC HEALTH LAW [Vol. 6:1 struggled to reconcile it with Maloney v. Conroy, 11 2 which precluded recovery for bystander emotional distress, but which the Clohessy Court did not explicitly overturn. Some six years later, there the rub still lies. III. The Split Between the Superior Courts The knotty debate surrounding the intersection of Clohessy and Maloney is the subject of many lower court decisions. Of these decisions, the vast majority consist of patently superficial analysis Two decisions, however, emerge as examples of sound jurisprudential methodology. By juxtaposing this pair, the most salient issues of the debate emerge. A. Wildman v. Connecticut Allergy and Asthma Associates For three years, Dr. Paul Goldberg had treated the plaintiffs' son, Lee, for asthma and hypersensitivity to tree pollen.' 0 4 Later, in September 1994, Goldberg prescribed Lee an allergy medication that another physician, John Willis, was to administer. 0 Shortly after Lee was injected with this new drug, he "complained that he could not breathe and began to turn blue."' 0 6 Lee was rushed first to Dr. Willis, and then to the hospital." 0 7 The child lapsed into a coma and, despite repeated efforts to resuscitate him, he never regained consciousness. Ten years old at the time, Lee died on October 28, ' Lee's parents, Kelly and William Wildman, sued Willis, Goldberg, and the latter's practice for medical malpractice, loss of filial consortium, and bystander emotional distress." 0 9 As would be expected, Goldberg moved to dismiss the third count, citing Maloney and alleging that "bystander emotional distress is 102 See supra Part II.C. 'I(' Tracy v. New Britain General Hospital stands out as a particularly egregious example. No. CV , 1997 WL (Conn. Super. Ct. Jan. 23, 1997). There, the court dedicated all of five sentences to what purported to be legal analysis. Id. at * Wildman v. Connecticut Allergy & Asthma Assocs., P.C., No , 1996 WL , at *1 (Conn. Super. Ct. Dec. 16, 1996). 1" Id. 106 Id. 107 Id. 108 Wildman, 1996 WL , at * Id.

13 2002] MEDICAL MALPRACTICE CASES not recognized in the context of a medical malpractice action.., 110 In reply, the plaintiffs enlisted Clohessy for the broad proposition that Connecticut law permits an action for bystander mental anguish to proceed in any context whatsoever.' From the beginning, the court was honest enough to admit that "[t] he answer to this issue is not as crystal clear as the parties would have it."' At one extreme, Judge Levin wrote, "Clohessy appears to articulate a universal test for... bystander emotional distress."' 13 At the other extreme, however, Maloney contains unambiguous language that undercuts Clohessy and its facially holistic reach: "a bystander to medical malpractice may not recover for emotional distress." ' "1 4 After much posturing, the court agreed with Goldberg and held that, as a matter of law, no "plaintiff may... assert a claim for bystander emotional distress arising out of alleged acts of medical malpractice...,5 " The court rationalized its decision on four grounds. First and foremost, the court focused on Clohessy and its failure to explicitly overturn Maloney." 6 Emphasizing, for rhetorical effect, what might have been left unsaid, the court quipped that "[t]he Connecticut Supreme Court knows how to overrule... [a] case...when it chooses to do so. 1 " 7 Judge Levin was persuaded, in particular, by the "recent vintage" of Maloney."' He felt that Maloney, as a young opinion, would have been expressly reversed "[h]ad there been a majority of the Supreme Court in Clohessy in favor of overruling [it].""' Second, Judge Levin concentrated on certain comments that the Supreme Court had made in Clohessy. Albeit in dicta, the Court had taken pains to emphasize that bystander emotional distress has, as a theory of liability, doctrinal shortcomings 110 Id. III Id. 112 Wildman, 1996 WL , at * Id. 114 Id. (internal quotes omitted). 115 Id. at * As have other courts. See, e.g., Colon v. Barczak, No , 1997 WL , at *4 (Conn. Super. Ct. July 17, 1997); Martin v. Waradzin, No. CV S, 1998 WL , at *1 (Conn. Super. Ct. Apr. 2, 1998); Delvecchio v. Flagg, No. CV S, 1998 WL 83197, at *1 (Conn. Super. Ct. Feb. 18, 1998). 117 Wildman, 1996 WL , at *4 (citations omitted). 118 Id. 119 Id.

14 14 QUINNIPIAC HEALTH LAW [Vol. 6:1 when invoked in the context of medical malpractice. "[T]he problem [with a cause of action for bystander emotional distress]," the Clohessy Court had remarked, "is compounded when the underlying act of negligence... is medical malpractice because there generally is no significant observable sudden traumatic event by which the effect upon the bystander can be judged." 12 Third, Judge Levin trained his attention on certain policy concerns. He hypothesized that medical professionals, laboring under the specter of lawsuits for bystander emotional distress, may be compelled to take steps at odds with certain public interests. 1 2 ' First, patient visitation practices - typically liberal in tenor - might be curtailed or, in some circumstances, eliminated entirely. 122 Second, despite their superior knowledge, training, and experience, "medical personnel may feel obligated to respond to the usually uninformed complaints of visitors concerning the treatment of patients Third, Judge Levin posited that Maloney and Clohessy are not necessarily inconsistent with each other According to him, Maloney established an exception before the general rule was itself announced in Clohessy.' 25 While conceding that this sequence of precedent was "anomalous," he submitted that his construction was proper insofar as "[t] he principle of whether a claim for bystander emotional distress could be asserted in a medical malpractice case was not directly involved in Clohessy and the text of Clohessy does not provide clear and compelling rea- 120 Id. at *2 (quoting Clohessy, 675 A.2d at 859) (internal quotes omitted). Accord Cromwell v. Hendessi, No. CV S, 1999 WL , at *2 (Conn. Super. Ct. Oct. 6, 1999); Barczak, 1997 WL , at * Accord Gousee v. Connecticut Children's Med. Ctr., No. CV S, 2000 WL , at *2 (Conn. Super. Ct. Aug. 9, 2000); Chabot v. Day Kimball Hosp., No. CV S, 1997 WIA , at *1 (Conn. Super. Ct. Feb. 28, 1997). 122 Wildman, 1996 WL , at * Id. The court proceeded to add that "[m]edical judgment's as to the appropriate treatment of a patient ought not to be influenced by the concern that a visitor may become upset... from the failure to follow some notion of the visitor as to [the] care of the patient." Id. 124 Id. at *4 ("Maloney does not conflict with Clohessy."). 125 Wildman, 1996 WL , at *4. But see Bond v. Kalla, No , 1998 WL , at *2 (Conn. Super. Ct. Apr. 13, 1998) ("To argue... that Maloney v. Conroy... carved out an exception before the general rule... [may be] to creditjustice David Shea, the author of the majority opinion... with a prescience that even that learned jurist cannot have possessed." ).

15 2002] MEDICAL MALPRACTICE CASES sons for inferring that that case overruled Maloney." 1 26 Three years after Judge Levin handed down his decision in Wildman, he was challenged by one of his colleagues on the bench. In a 1999 case, Drew v. William Backus Hospital, 27 judge Hurley tried with questionable success to debunk the notion that Clohessy should not extend into the realm of medical malpractice. B. Drew v. William Backus Hospital The facts of Drew were already discussed at length 128 and, repeated here, would serve only to incite emotion rather than reason. The Drew court's analysis, however, merits further discussion since it tracks the major contours of Wildman. Judge Hurley first observed that many courts- Wildman included-express concern over "the fact that while Clohessy v. Bachelor overruled... Strazza... the Clohessy court declined to overrule Maloney....,,29 He insisted that such concern was misplaced, and to this end maintained that the plaintiff in Maloney was unsuccessful only because she failed to establish contemporaneous sensory perception 3 - a prima facie element of Clohessy. 1 ' Therefore, according to Judge Hurley, "even under the Clohessy test, the plaintiff in Maloney would have failed to state a valid claim for bystander emotional distress."' 2 In short, he adjured, because Maloney was not on its face inconsistent with Clohessy, the Connecticut Supreme Court had no reason to overrule it Judge Hurley then registered his opinion about the same dicta on which the Wildman court had commented. 1 " 4 He con- 126 Wildnan, 1996 WL , at * No , 1999 WL (Conn. Super. Ct. Sept. 30, 1999). See also infra Part III.B. 128 See supra Part I. 129 Drew, 1999 WL , at *5 (citation and internal quotes omitted). 130 See supra notes and accompanying text. 131 See supra notes and accompanying text. 132 Drew, 1999 WL , at * Id. Accord Huhn v. Goldstone-Orly, No. CV S, 2000 WL , at *3 (Ct. Super. Ct. Feb. 10, 2000); Pollard v. Norwalk Hosp., No. CV , 1999 WL 99227, at *2 (Conn. Super. Ct. Feb. 18, 1999); Bond v. Kalla, No , 1998 WL , at *1 (Conn. Super. Ct. Apr. 13, 1998); Rios v. Kozlowski, No. CV , 1998 WL , at *3 (Conn. Super. Ct. Aug. 24, 1998). 134 See supra note 120 and accompanying text.

16 QUINNIPIAC HEALTH LAW [Vol. 6:1 ceded that, as a general proposition, a claim for bystander emotional distress will rarely succeed in the context of medical malpractice, because there often "is no significant observable traumatic event" that would satisfy Clohessy's CSP requirement Judge Hurley nevertheless ventured that it is was not altogether impossible to envision circumstances under which a plaintiff might "actually observe[ ] an act of medical malpractice and contemporaneously suffer[ ] emotional distress as a result." " In this vein, he conceived of a rather unlikely hypothetical: a woman rushes her husband - who has just suffered a heart attack - into an emergency room, where she watches as doctors electrocute him by misapplying a defibrillator." 7 Drew did not confront the public policy arguments against the application of Clohessy in medical malpractice cases. This omission is was glaring, especially since those arguments suggest that medical professionals, fearful of being sued for bystander emotional distress, may be unduly influenced by the uneducated opinions of patients and their families.' 38 IV Conclusion It is too soon to tell whether bystander mental anguish will earn a place among actionable wrongs in Connecticut, without exception for medical malpractice. Still, this much is certain: While as a purely theoretical matter bystander emotional distress may be broad in scope, its successful invocation in a medical malpractice case will remain a rarity.' 39 Consider that the prototypical bystander action is an automobile accident, where injuries are immediate and apparent. 4 ' In the context of medical malpractice, however, these qualities are almost invariably lacking.' 135 Drew, 1999 WL , at * Id. Accord Davis v. Yale-New Haven Hosp., No , 2000 WL , at *6 Uan. 27, 2000); Rios, 1998 L , at * Drew, 1999 WL , at *7. Judge Hurley himself admits that his example was "extreme." Id. 138 See supra notes and accompanying text. 131 See, e.g., Davis v. Yale-New Haven Hosp., No , 2000 WL , at *5 (Conn. Super. Ct. Jan. 27, 2000) (citation omitted). 140 Id. 141 See supra note 120 and accompanying text.

17 2002] MEDICAL MALPRACTICE CASES 17 Because misdiagnoses, for example, rarely manifest themselves with any spontaneity, they usually cannot satisfy the CSP requirement of Clohessy Furthermore, visitors are only infrequently allowed to observe surgeries and related procedures. 143 Bystanders are thus regularly excluded from what are among the most common arenas for medical malpractice.' 44 In the final analysis, the average medical malpractice case will not satisfy the prima facie elements of a bystander emotional distress claim. Such a case simply will not, by its very nature, present facts sufficient to sustain a cause of action for bystander mental anguish Davis, 2000 AL , at *6 (citation omitted). Accord Frame v. Kothari, 560 A.2d 675, (N.J. 1989); Wilson v. Galt, 668 P.2d 1104, 1110 (N.M. Ct. App. 1983). 143 Davis, 2000 NAIL , at * Obvious exceptions to this general rule include prenatal care and deliveries, when patients are sometimes accompanied by friends or family members. 145 See supra note 120 and accompanying text.

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STATE OF NEW HAMPSHIRE. Strafford, Superior Court

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