Santana v. StateSantana v. State
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Syllabus
Pursuant to statute (
Pursuant further to statute (
The plaintiffs, C and her minor child, E, sought to recover damages for the alleged medical malpractice of the defendant, the state of Connecticut, through its servants, agents, and employees, that occurred prior to and during the birth of E. C was admitted to a state hospital for an induction of labor. During labor, it was determined that E was malpositioned and that a vaginal delivery would pose risks. C was then counseled on possible delivery options, including a manual rotation of E‘s head to allow for the potential for a vaginal delivery. C agreed to the manual rotation, which was unsuccessful. At that point, the delivery plan was changed to a cesarean section. The cesarean section ultimately took an extended period of time, and E suffered permanent injuries in the process. In the first count of their complaint, the plaintiffs sought to recover for E‘s physical injuries. In the second count of their complaint, the plaintiffs incorporated by reference most of the allegations set forth in the first count, including all of the various ways in which the state failed to exercise reasonable care and the resulting injuries to E. The plaintiffs also alleged in the second count that C had endured a painful delivery and suffered severe and ongoing psychological, physiological, and emotional distress. The plaintiffs further alleged in the second count that the state knew or should have known that its conduct involved an unreasonable risk of causing emotional distress and that the distress might result in illness or bodily harm. The plaintiffs attached to their complaint, pursuant to
1. The term “medical malpractice claims” in
Insofar as neither
This court also determined that, in light of the use of the term “personal injury” in
This court acknowledged a growing trend in the common law of permitting liability for purely emotional distress under circumstances in which the defendant‘s alleged negligence has placed the plaintiff in danger of immediate bodily harm or has occurred in the course of specified categories of activities, undertakings or relationships in which negligent conduct is especially likely to cause serious emotional harm, such as when a physician negligently causes the loss of a fetus.
Moreover, this court recognized that a number of other state courts and Connecticut Superior Court judges have concluded, under their common-law authority, that a birthing mother may recover damages for the purely emotional distress she experiences as a result of medical malpractice resulting in the physical injury to or death of her fetus or infant during the labor and delivery process.
Consistent with this trend, this court concluded that, when a fetus or infant suffers physical injuries as a result of medical malpractice during the labor and delivery process, the birthing mother is a joint victim of the malpractice and can recover for emotional distress arising from her traumatic experiences during and immediately following that process, and the mother‘s recovery is not limited to damages arising from her own physical injuries.
Accordingly, C was not precluded from asserting a medical malpractice claim against the state for damages based on purely emotional distress.
2. In light of the plaintiffs’ allegations in the second count of the complaint and consistent with the obligation to construe pleadings in the light most favorable to the plaintiffs, this court concluded that the second count could be read to allege a medical malpractice claim on behalf of C, and, accordingly, the trial court properly denied the state‘s motion to dismiss that count of the complaint:
Although claims for negligent infliction of emotional distress and bystander emotional distress, even in the health care context, are causes of action distinct from medical malpractice, and the waiver of sovereign immunity in
To ascertain whether a claim qualifies as a medical malpractice claim, multiple factors are considered, including whether the defendant is being sued in his or her capacity as a medical professional, whether the alleged negligence was of a specified medical nature that arose out of the medical professional-patient relationship, whether the alleged negligence was substantially related to medical diagnosis or treatment, and whether the alleged conduct involved the exercise of medical judgment.
In the present case, the second count of the complaint incorporated by reference numerous allegations set forth in the first count, which undisputedly asserted a medical malpractice claim, all of the allegations of negligence arose out of the relationship between C, the patient, and her physicians and health care providers, who were employees or agents of the state, and the allegations involved the alleged breach of the standard of care by hospital staff while they were operating in their professional medical capacities.
Moreover, the second count of the complaint apparently was brought pursuant to
(One justice concurring separately)
Argued February 22—officially released August 22, 2023
Action seeking damages for the defendant‘s alleged medical malpractice, brought to the Superior Court in the judicial district of Hartford, where the court, Sicilian, J., denied the defendant‘s motion to dismiss, from which the defendant appealed. Affirmed.
Michael G. Rigg, for the appellant (defendant).
Alinor C. Sterling, with whom were Kathleen Nastri and, on the brief, Sarah Steinfeld, for the appellees (plaintiffs).
Opinion
MULLINS, J. General Statutes
I
The complaint and a copy of the expert opinion letter attached thereto alleged the
During a March 3, 2020 visit to a walk-in clinic, Escobar-Santana was diagnosed with elevated blood pressure, influenza, and proteinuria (the presence of abnormally high levels of protein in the urine). On March 17, during a routine prenatal visit, sonography revealed that the estimated fetal weight was above the ninetieth percentile and the abdominal circumference was above the ninety-fifth percentile. On March 23, Escobar-Santana complained of bilateral leg swelling and continued elevated blood pressure. She was admitted at that time for an induction of labor.
On March 25, 2020, following two days of treatment with oxytocin but relatively minimal progress in her labor, Escobar-Santana developed a fever. By 7:20 p.m., her temperature had risen to 101.8 degrees Fahrenheit. At 8:30 p.m., she began pushing.
At 9:04 p.m., Kristyn Esteves, an obstetrical resident at UConn, conducted a manual exam and, on the basis of palpation, concluded that the fetus could have been in a right occiput transverse position that would make safe vaginal delivery improbable. Two hours later, at approximately 11 p.m., David Park, a board-certified obstetrician at UConn, performed a fetal sonograph and determined that the fetus was, in fact, malpositioned in a occiput posterior presentation.3 He counseled Escobar-Santana regarding various possible delivery options, including manually rotating the fetus’ head so as to proceed with vaginal delivery. She agreed to try manual rotation, but the pain was intolerable. Accordingly, due to maternal exhaustion, the delivery plan was changed to cesarean section (C-section) for failure to progress. Because of the length of labor and the fetal positioning, however, the fetus’ head had become impacted in the maternal pelvis.
During the delivery by C-section, which commenced at 11:51 p.m., at least one health care provider placed a hand into Escobar-Santana‘s vagina and applied force to push up on the fetal head. Whereas a C-section can normally be accomplished in less than one minute, in this case, twenty-four minutes were required to extract the baby. Emmett suffered serious and permanent injuries in the process.
The plaintiffs brought the present action in two counts. Although the plaintiffs alleged injuries to Emmett in count one and injuries to Escobar-Santana in count two, there is substantial overlap, as the plaintiffs alleged in each count that the state, via UConn and its servants, agents, and employees, including Park and Esteves, was negligent in at least seventeen respects prior to and during the birthing process. Several of these allegations relate specifically to Emmett, such as the contentions that physicians “failed to safely manually rotate the baby‘s head” and “failed to accurately and timely communicate with staff regarding the disengagement of the
The plaintiffs alleged in count one of their complaint that the state‘s negligence resulted in various severe, painful, and permanent injuries to Emmett. These include respiratory distress, facial bruising, trauma to the soft tissues of the head, multiple intracranial hemorrhages and hematomas, multiple skull fractures requiring surgical repair, scarring, head deformity, permanent brain damage, and other permanent psychological, physiological, and neurological sequelae.
In count two of their complaint, the plaintiffs alleged negligence claims on behalf of Escobar-Santana but incorporated by reference most of the allegations of count one, including all of the various ways in which the state failed to exercise reasonable care, as well as the resulting injuries to Emmett. The plaintiffs then further alleged that Escobar-Santana endured a “traumatic, terrifying and painful” delivery and suffered severe and ongoing psychological, physiological, and emotional distress. These conditions, the plaintiffs alleged, are painful, serious, and permanent in their nature and effects and have impaired Escobar-Santana‘s ability to carry on and enjoy life‘s activities. The plaintiffs further contended that the state and its employees “knew or should have known that their conduct involved an unreasonable risk of causing emotional distress and that the distress might result in illness or bodily harm.”
The plaintiffs attached to the complaint, per the requirements of General Statutes
The state filed a motion to dismiss count two of the complaint, contending that the count states a claim for negligent infliction of emotional distress or bystander liability, rather than medical malpractice, and, therefore, does not fall within the statutory waiver of the state‘s sovereign immunity in
II
On appeal, the state renews its claim that count two of the complaint sounds in negligent infliction of emotional distress or bystander liability, rather than medical malpractice, and, therefore, is barred by the state‘s sovereign immunity because it
Consistent with the modern trend and the rule that has been adopted by a majority of our sister states and Superior Court judges who have considered the issue, we hold that, when a fetus or infant suffers physical injuries as a result of medical malpractice during the labor and delivery process, the birthing mother is a joint victim of the malpractice and can recover for emotional distress arising therefrom. We further conclude that count two of the complaint properly stated a cause of action for medical malpractice.
A
We begin with the standard of review. “We have long held that because [a] determination regarding a trial court‘s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Levin v. State, 329 Conn. 701, 706, 189 A.3d 572 (2018). Specifically, because the scope of the waiver of sovereign immunity for medical malpractice claims contained in
The following well established principles also guide our analysis. “[W]hen the doctrine of sovereign immunity is applicable, the state must consent to be sued in order for a claimant to pursue any monetary claim against the state.” (Internal quotation marks omitted.) Levin v. State, supra, 329 Conn. 709. The Claims Commissioner may waive sovereign immunity and consent to suit pursuant to
B
Because the scope of the waiver afforded by
One thing is clear. The waiver of sovereign immunity afforded by subsection (f) of
Neither this statute, however, nor any other provision of the General Statutes defines the terms “medical malpractice,” “medical malpractice action,” or “medical malpractice claim.” The precise question presented by this appeal is not addressed on the face of the statute.
Dictionaries also are of little help in identifying whether and when “medical malpractice” can encompass claims for emotional distress in the absence of physical injury. Black‘s Law Dictionary, for example, defines “medical malpractice” as “[a] doctor‘s failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under similar circumstances.” Black‘s Law Dictionary (11th Ed. 2019) p. 1148. It adds that, as in any other negligence action, the medical malpractice plaintiff must establish proximate cause and damages, as well as breach of the professional duty of care. See id. But this dictionary definition does not speak to whether, and under what circumstances, emotional distress damages in the absence of physical injury are available in such actions.
To ascertain the legislature‘s intent with respect to that issue, we look, first, to other, related sections of the General Statutes; see
Although the term “medical malpractice” is not defined in
Section
Section
2
Because the legislature has not directly addressed the question of whether and when a claim for purely emotional damages can qualify as a medical malpractice claim for purposes of
As we explained in Squeo v. Norwalk Hospital Assn., 316 Conn. 558, 113 A.3d 932 (2015), the common law traditionally was loathe to afford recovery for purely emotional injuries. See id., 564. This reflected concerns about “the potential for trivial, frivolous or fraudulent claims,” as well as “the difficulties involved in tracing the etiology of psychological harms . . . .” Id.; see also, e.g., 2 Restatement (Third), supra, p. 132 (scope note accompanying chapter 8, §§ 45 through 48).
This hesitation has waned, however, as our understanding of emotional trauma has evolved. See, e.g., Squeo v. Norwalk Hospital Assn., supra, 316 Conn. 565; see also, e.g., LaBieniec v. Baker, 11 Conn. App. 199, 206, 526 A.2d 1341 (1987) (“medical science has unquestionably become sophisticated enough to provide reliable and accurate evidence on the causes of mental trauma” (emphasis omitted; internal quotation marks omitted)); 2 Restatement (Third), supra, pp. 132–33 (discussing modern trend and courts’ increasing openness to allowing recovery for purely emotional harm when traditional reasons given for restricting it do not apply); J. Lagnese et al., supra, § 3-2:3, p. 31 (“[r]ecovery for unintentionally caused emotional distress does not depend on proof of physical injury or risk of physical harm“).
Accordingly, § 47 of the Restatement (Third) of Torts, Liability for Physical and Emotional Harm, recognizes that courts have begun to permit the imposition of liability for purely emotional distress when, among other things, the defendant‘s alleged negligence (1) has placed the plaintiff in danger of immediate bodily harm (§ 47 (a)), or (2) “occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional harm” (§ 47 (b)). 2 Restatement (Third), supra, § 47, p. 175. Among the specific examples given of the types of special relationship injuries envisioned by § 47 (b) are medical malpractice cases in which “a physician negligently diagnoses a patient with a dreaded or serious disease; a physician negligently causes the loss of a fetus; [or] a hospital loses a newborn infant . . . .” Id., § 47, comment (f), pp. 178–79.
Consistent with this modern trend, this court has recognized a cause of action for bystander emotional distress arising out of medical malpractice. See, e.g., Squeo v. Norwalk Hospital Assn., supra, 316 Conn. 568; see also, e.g., 2 Restatement (Third), supra, § 48, pp. 199-200. In addition, the Appellate Court has left open the possibility that a medical malpractice cause of action will lie when a patient suffers purely emotional distress after having been misdiagnosed with a serious illness. See, e.g., Esposito v. Schiff, 38 Conn. App. 726, 729-30, 662 A.2d 1337 (1995); LaBieniec v. Baker, supra, 11 Conn. App. 200-201, 205-206; see also, e.g., Miles v. Barajas, Docket No. NNH-CV-12-6030919-S, 2015 WL 6237934, *3-4 (Conn. Super. September 22, 2015) (relying on LaBieniec and allowing medical malpractice action to proceed when plaintiff claimed purely emotional injuries arising from physician‘s allegedly negligent delay in diagnosing her breast cancer).
Neither this court nor the Appellate Court has spoken to the specific issue of whether a birthing mother can recover
Most of these courts have adopted this rule on the theory that the mother and fetus are physically and emotionally inseparable prior to birth, and, therefore, a physical injury to the child during the birthing process is, in effect, a bodily injury to the mother as well. The mother and the child are, in effect, joint victims of the medical malpractice. Courts allowing recovery of such damages also have recognized the unique expectancies that attend the birthing process. See, e.g., Burgess v. Superior Court, supra, 2 Cal. 4th 1076 (“[t]he birth of a child is a miraculous occasion which is almost always eagerly anticipated and which is invested with hopes, dreams, anxiety, and fears“).
Some courts also have adopted the rule on public policy grounds. See, e.g., Tanner v. Hartog, 696 So. 2d 705, 708 (Fla. 1997) (“it is difficult to justify the outright denial of a claim for the mental pain and anguish which is so likely to be experienced . . . as a result of the birth of a stillborn child caused by the negligence of another“). Still others have permitted the mother to recover under the so-called “impact” or “zone of danger” rules. See, e.g., Vaillancourt v. Medical Center Hospital of Vermont, Inc., 139 Vt. 138, 143, 425 A.2d 92 (1980). In any event, we are persuaded that a majority of the state courts to have considered the question have concluded that emotional distress damages resulting from an injury to a fetus or infant during the birthing process are recoverable by the
This is also the prevailing view among the judges of the Superior Court. As one court explained, “[n]umerous Superior Court [judges] have considered whether a mother may recover emotional distress damages for the injury or death of a child resulting from medical malpractice in the prenatal and delivery periods. . . . The majority of the Superior Court [judges who] have considered the issue have ruled that a mother is not a bystander [with respect to matters] that are incident to prenatal care and the delivery of her child. . . . The very term delivery presupposes that the mother is an active participant in the birthing of a child. To hold otherwise would be to reject the entire human experience, everywhere and at all times. . . . [W]hen a child is injured due to negligent obstetrical care, the mother and child are joint victims of malpractice, not separable entities.” (Internal quotation marks omitted.) Leoma v. OB-GYN Services, P.C., Docket No. KNL-CV-11-6011571-S, 2012 WL 4040464, *2 (Conn. Super. August 28, 2012); see also, e.g., Gambacorta v. Williams, Docket No. HHD-CV-17-6077609-S, 2021 WL 402053, *3 (Conn. Super. January 8, 2021) (“the majority of the judges of the Superior Court who have considered the issue [have] concluded that obstetricians owe a duty to the mother to exercise reasonable care in the treatment of her child and are answerable in damages for the emotional distress suffered by the mother therefrom” (emphasis omitted)); J. Lagnese et al., supra, § 3-2:3.1, p. 34 (observing that this is probably majority position in Connecticut).15
In Gambacorta, for example, the court, following § 47 (b) of the Restatement (Third) of Torts, Liability for Physical and Emotional Harm, adopted what it took to be the majority view. See Gambacorta v. Williams, supra, 2021 WL 402053, *3, *5. The court concluded that holding a physician liable for such eminently foreseeable damages is consonant with the “preexisting physician-patient relationship between both mother and child“; id., *5; comports with the normal expectations of the mother; id.; and, from a public policy standpoint, does not unduly “enlarge the common law [by extending] the duty of
3
We cannot know whether the legislature had this body of common law and these modern trends in mind when it enacted
Accordingly, we agree with the majority position and hold, under our common-law authority, that a birthing mother may recover for emotional distress arising from her traumatic experiences during and immediately following the birthing process, up to and including her realization of her child‘s injuries, when those injuries are proximately caused by the defendant‘s medical malpractice while the child was in utero. Insofar as
C
With these principles in mind, we return our attention to the present case. As we explained in part II B of this opinion, a birthing mother who alleges that she suffered emotional distress as a result of medical malpractice during the labor and delivery process is not limited in her recovery to damages arising from her own physical injuries. She also may recover for emotional distress arising from her awareness of the damage wrought by the malpractice on the child. To the extent that Escobar-Santana is claiming purely emotional damages arising from such injuries, then, she is not precluded from bringing a medical malpractice claim against the state on that basis.
The final question is whether count two of the complaint does in fact state a medical malpractice claim within the terms just described. The state argues that count two must be dismissed because Escobar-Santana‘s claim sounds either in negligent infliction of emotional distress or in bystander emotional distress, rather than medical malpractice. Neither of those causes of action has the same essential elements as a medical malpractice claim, the state contends, and, therefore, they are not encompassed by the legislative waiver of sovereign immunity for medical malpractice actions in
The state is correct that, even in the health care context, both negligent infliction of emotional distress and bystander emotional distress are causes of action distinct
The state is incorrect, however, that count two of the complaint cannot also be read to allege a medical malpractice claim on behalf of Escobar-Santana. “Under modern pleading practice, pleadings must be construed broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Williams v. Housing Authority, 327 Conn. 338, 372, 174 A.3d 137 (2017). Moreover, “[i]n ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court must consider the allegations of the complaint in their most favorable light . . . including those facts necessarily implied from the allegations . . . .” (Internal quotation marks omitted.) Giannoni v. Commissioner of Transportation, 322 Conn. 344, 349, 141 A.3d 784 (2016).
In borderline cases, we have indicated that, to ascertain whether a claim qualifies as a medical malpractice claim, we ask the following three questions: (1) are the defendants being “sued in their capacities as medical professionals,” (2) is the alleged negligence “of a specialized medical nature that arises out of the medical professional-patient relationship,” and (3) is the alleged negligence “substantially related to medical diagnosis or treatment” and does it “[involve] the exercise of medical judgment?” (Internal quotation marks omitted.) Doe v. Cochran, 332 Conn. 325, 335, 210 A.3d 469 (2019). In the case of Escobar-Santana‘s claim, the answer to all three questions is clearly yes.
Count two of the complaint incorporates by reference paragraphs 1 through 13 of count one, which undisputedly make out a medical malpractice claim. The contention is that the state, via a state hospital and two of its physicians, among other professional staff, undertook to provide pregnancy, labor, and delivery services for Escobar-Santana after having admitted her as a patient. All of the allegations of negligence arise out of that physician-patient relationship. The allegations all involve the breach of the standard of care by the hospital staff while they were operating in their professional medical capacities: things like misdiagnosing the nature of the pregnancy, misassessing the risks of labor and delivery, failing to use proper imaging
In addition, count two purports to be brought pursuant to
In light of these allegations, and consistent with our obligation to construe the pleadings in the light most favorable to the plaintiffs, we understand Escobar-Santana‘s allegation that she suffered a “traumatic, terrifying and painful” delivery, followed by “severe psychological, physiological and emotional distress,” as inextricably connected to her allegations of medical malpractice. We thus conclude that the trial court properly denied the state‘s motion to dismiss the second count of the plaintiffs’ complaint.
The decision of the trial court is affirmed.
In this opinion the other justices concurred.
MULLINS, J.