Marsala v. Yale-New Haven Hospital, Inc. , 166 Conn. App. 432 ( 2016 )

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CLARENCE MARSALA ET AL. v. YALE-NEW HAVEN
HOSPITAL, INC.
(AC 37822)
CLARENCE MARSALA, ADMINISTRATOR (ESTATE
OF HELEN MARSALA) v. YALE-NEW HAVEN
HOSPITAL, INC.
(AC 37821)
Beach, Keller and Bishop, Js.
Argued March 10—officially released June 28, 2016
(Appeal from Superior Court, judicial district of
Ansonia-Milford, Lee, J. [motion to strike]; Tyma, J.
[summary judgment in each case].)
Jeremy C. Virgil, for the appellants (plaintiff Michael
Marsala et al. in AC 37822, plaintiff in AC 37821).
Tadhg A.J. Dooley, with whom was Jeffrey R. Babbin,
for the appellee in both appeals (defendant).
Opinion
BISHOP, J. These consolidated appeals arise from
the death of Helen Marsala while under the care of the
defendant, Yale-New Haven Hospital, Inc. (Hospital).
In the case that underlies AC 37822, there were several
plaintiffs. Helen’s husband, Clarence Marsala, in his
personal capacity and as administrator of Helen’s
estate, and Helen’s five children, Michael Marsala, Gary
Marsala, Tracey Marsala, Kevin Marsala, and Randy
Marsala, filed a twenty-seven count complaint, includ-
ing, inter alia, claims of negligent infliction of emotional
distress, intentional infliction of emotional distress,
wrongful death, loss of consortium, and medical mal-
practice. On October 30, 2013, the court, Lee, J., granted
the Hospital’s motion to strike the negligent infliction
of emotional distress counts and, on March 19, 2015,
the court, Tyma, J., rendered summary judgment in
favor of the Hospital on the intentional infliction of
emotional distress counts. The claims for wrongful
death, loss of consortium, and medical malpractice are
pursued solely by Clarence, in his personal capacity
and as administrator, and as they remain pending before
the trial court, they are not subject to this appeal. Conse-
quently, because all the claims Clarence brought were
not disposed of by the trial court’s actions, he is not a
party to the appeal designated as AC 37822.1
In sum, in AC 37822, the plaintiffs, Helen’s five chil-
dren, appeal from the decisions striking their negligent
infliction of emotional distress claims and rendering
summary judgment on their intentional infliction of
emotional distress claims.
In the case that underlies AC 37821, Clarence, as
administrator of Helen’s estate, filed a separate action
alleging medical malpractice by the Hospital. On March
19, 2015, the court, Tyma, J., rendered summary judg-
ment in favor of the Hospital in that action on the
ground that the medical malpractice claim comprising
that action was duplicative of the wrongful death, loss
of consortium, and medical malpractice counts that
Clarence, in his personal capacity and as administrator,
was still actively pursuing in the case underlying AC
37822. Judge Tyma reasoned that Clarence’s claims in
both cases were identical and arose from the same
factual allegations, which rendered his claim in the case
underlying AC 37821 legally insufficient under Floyd v.
Fruit Industries, Inc., 144 Conn. 659, 669, 136 A.2d 918
(1957) (Limiting recovery to one action ‘‘where damages
for death itself are claimed in an action based on our
wrongful death statute, recovery of any ante-mortem
damages flowing from the same tort must be had, if at
all, in one and the same action. In other words, there
cannot be a recovery of damages for death itself under
the wrongful death statute in one action and a recovery
of ante-mortem damages, flowing from the same tort,
in another action . . . .’’) AC 37821 is Clarence’s appeal
from that judgment. Clarence has not raised or briefed
any challenge to the summary judgment rendered in
the separate action. Accordingly, we deem the appeal
in AC 37821 to be abandoned and we address, only, the
issues raised in AC 37822; see Commission on Human
Rights & Opportunities ex rel. Arnold v. Forvil, 302
Conn. 263, 279–80, 25 A.3d 632 (2011) (holding claims
are inadequately briefed when parties do not develop
claims with analysis); Connecticut Light & Power, Co.
v. Gilmore, 289 Conn. 88, 124, 956 A.2d 1145 (2008)
(‘‘[w]e repeatedly have stated that [w]e are not required
to review issues that have been improperly presented
to this court through an inadequate brief’’ [internal quo-
tation marks omitted]); and do not address the merits
of AC 37821 here. For the reasons stated herein, we
affirm the judgments of the trial court.
I
The following allegations from the pleadings, evi-
dence submitted by the parties, and procedural history
are relevant to the resolution of this appeal. On April
7, 2010, Helen, then seventy-six years old, was admitted
to Griffin Hospital (Griffin) to undergo wrist surgery.
After surgery, Helen’s wrist became infected and her
condition worsened to the point that she was put on
life support. She subsequently lost consciousness and
became comatose. Helen did not have a living will with
instructions concerning her care should she fall into a
coma with no reasonable prospects for recovery. How-
ever, she had expressed to Clarence her desire to
remain on life support should she ever lose the ability
to speak for herself while hospitalized. At Griffin, the
medical staff came to the view that Helen’s condition
was irreversible and they recommended to Clarence
that Helen be taken off life support. Based on Helen’s
previous expressions, however, Clarence refused to
give consent, and on June 19, 2010, he transferred Helen
to the Hospital.
Helen arrived at the Hospital in critical condition. She
required a respirator to breathe, received her nutrition
through a feeding tube, and, aside from one moment
when she opened her eyes, remained unconscious and
unresponsive to painful stimuli. Her intake report
described Helen as: ‘‘A 76 year old woman transferred
from Griffin Hospital for multiple medical problems for
further management. She has an extensive past medical
history, which included [diabetes mellitus], moderate
aortic stenosis, hypertension, hyperlipidemia. . . . She
has had a long hospital course, which has included
prolonged respiratory failure and failure to wean, shock
requiring vasopressors, Morganella bacteremia requir-
ing treatment with Impipenem, volume overload, and GI
bleeding thought to be due to ischemic colitis.’’ Helen’s
intake physician summarized her status, stating that
her ‘‘[p]rognosis is uncertain at best given her multiple
medical problems and advanced age.’’
On the day Helen was admitted to the Hospital, mem-
bers of its staff discussed with Clarence and Michael
the permanent removal of Helen’s ventilator. Clarence
and Michael refused. Instead, they instructed the Hospi-
tal never to ‘‘pull the plug.’’ Nonetheless, the conversa-
tion continued. Hospital staff repeatedly advised
permanently removing Helen’s ventilator, and Clarence
and other members of the family continually refused
to give their consent. Despite objecting to permanently
removing Helen’s ventilator, Clarence believed that
Helen would not want to remain alive at all costs and,
accordingly, upon admission to the Hospital, he agreed
to keep her status as ‘‘Do Not Resuscitate.’’
Helen’s condition worsened during her time at the
Hospital. Images of her brain revealed new infarcts,
and monitoring of her brain showed slowing. Despite
Helen’s bleak outlook, the Hospital attempted to help
Helen regain consciousness by conducting weaning tri-
als in an attempt to stimulate her respiratory system.
The weaning trials involved temporarily removing Hel-
en’s ventilator with the hope that her body would then
start breathing on its own. Clarence and the plaintiffs
did not object to the weaning trials as they hoped that
these efforts would lead to some improvement in Hel-
en’s mental status. However, Clarence continued to
oppose the Hospital’s recommendation that Helen’s
ventilator be permanently removed. Instead, Clarence
insisted that the Hospital reintubate Helen if she did
not start breathing on her own and not change her
status to ‘‘Due Not Reintubate.’’ At this time, although
Clarence continued to object to changing Helen’s status
to ‘‘Do Not Reintubate,’’ the Hospital kept in place her
‘‘Do Not Resuscitate’’ status.
Due to the disagreement between Clarence and the
Hospital physicians over whether to reintubate Helen
if her condition did not improve, the Hospital referred
Helen’s case to its Bioethics Committee (committee).
Generally, the committee, a Hospital panel composed
of the physicians and social workers familiar with the
particular patient, members of the clergy, relevant staff
personnel, and health care specialists from the relevant
medical fields, is authorized to consider the ethical
issues relating to the treatment of patients and to recom-
mend a course of action. In Helen’s case, the committee
met on July 23, 2010. Although Clarence was invited to
participate, he did not attend. The committee noted
that Clarence wished to keep Helen alive, despite her
poor prognosis. The committee also considered the
medical opinion of Helen’s physicians who were ‘‘con-
cerned that [they were] providing futile care consider-
ing [Helen] has had multi-organ failure for several
weeks now—respiratory failure, poor mental status,
kidney failure, and stage IV skin break down over the
back, as well as stage II over the bridge of nose from
[her breathing mask, known as a Bilevel Positive Airway
Pressure (BiPAP) mask].’’
On July 23, 2010, after considering Helen’s prognosis,
the views of her medical team, and the views of her
family, the committee recommended ‘‘that there be no
further escalation of care (meaning no intubation or
pressors) considering this is not in the best interest of
the patient and we are not providing care that would
achieve the patient’s goal of going home.’’ Finally, a
committee member called Clarence and left a voice
mail requesting that he discuss the committee’s recom-
mendation with her. Clarence did not respond to the
committee member’s request. In fact, during the final
days of Helen’s life, Clarence became increasingly diffi-
cult to contact. He did not answer his phone and visited
the Hospital less frequently.
Following the committee’s recommendation, the
Hospital sought a second opinion from a pulmonologist,
a physician who specializes in the respiratory system,
and who had not been involved in Helen’s care. The
pulmonologist ‘‘concur[red] with the decision of [Hel-
en’s] primary [medical] team and of the committee and
[stated that] further attempts at therapeutic interven-
tion do not offer a chance of a better outcome.’’ Addi-
tionally, the pulmonologist stated that ‘‘[r]eintubation,
ongoing use of BiPAP based on both asynchrony and
skin breakdown is not warranted.’’ He further ‘‘agree[d]
to moving [Helen] to a comfort care plan.’’ Finally, the
pulmonologist noted that he had called Clarence and
left a message explaining his medical opinion and
agreement with the committee’s recommendation.
In accordance with the committee’s recommendation
and buttressed by the second opinion by a pulmonolo-
gist, the Hospital changed Helen’s status to provide
comfort care only and a ‘‘Do Not Reintubate’’ order was
entered for her in addition to the ‘‘Do Not Resuscitate’’
order previously issued. Neither Clarence nor any of
the plaintiffs was present at the committee meeting;
none of them witnessed the Hospital’s decision-making
process and none was present when the Hospital made
the ultimate decision to transition Helen to comfort
care and change her status to ‘‘Do Not Reintubate.’’2
On July 24, 2010, the Hospital permanently removed
Helen’s ventilator. She died that night.
Subsequently, Clarence, both in his personal capacity
and as administrator of Helen’s estate, and the plaintiffs
brought the action underlying AC 37822 against the
Hospital. The initial complaint in that action asserted
a variety of claims (twenty-seven counts), all rooted in
the core allegation that the Hospital ‘‘ignored the wishes
of . . . Helen, as expressed from her next of kin, Clar-
ence . . . prior to removing life support.’’ Pertinently,
the complaint alleged: negligent infliction of emotional
distress alleged by each individual plaintiff (counts one
through six), intentional infliction of emotional distress
claims alleged by each individual plaintiff (counts seven
through twelve), wrongful death and loss of consortium
claims alleged by Clarence in his personal capacity and
as administrator (counts twenty-one and twenty-two,
respectively), and medical malpractice and loss of con-
sortium claims alleged by Clarence in his personal
capacity and as administrator (counts twenty-six and
twenty-seven, respectively).3 Additionally, Clarence, as
the administrator of Helen’s estate, separately filed the
action underlying AC 37821 alleging medical malprac-
tice by the Hospital, premised on the same factual alle-
gations underlying AC 37822.
On March 22, 2013, the Hospital filed a motion to
strike most of the counts in the action underlying AC
37822, including the plaintiffs’ negligent infliction of
emotional distress counts. On October 30, 2013, Judge
Lee granted the Hospital’s motion to strike the negligent
infliction of emotional distress counts. Specifically,
Judge Lee determined that the plaintiffs’ negligent inflic-
tion of emotional distress counts were properly charac-
terized as bystander emotional distress claims, which
required the plaintiffs to allege facts tending to show
‘‘the[ir] contemporaneous sensory perception of the
event or conduct that causes the injury, or by [arrival]
on the scene soon thereafter and before substantial
change has occurred in the victim’s condition or loca-
tion,’’ as required by our Supreme Court’s decision in
Clohessy v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852
(1996). Judge Lee concluded that the plaintiffs had
failed to ‘‘allege that they witnessed the actual removal
of the respirator or the resulting demise of Helen or
arrived shortly thereafter’’ and, accordingly, had not
met the pleading standard required by Clohessy. Addi-
tionally, Judge Lee noted that so far as the plaintiffs’
claims sought damages for medical malpractice against
the Hospital for its treatment of Helen, such claims
were barred by Maloney v. Conroy, 208 Conn. 392,
392, 545 A.2d 1059 (1988) (holding that bystanders to
medical malpractice may not recover for emotional dis-
tress). Judgment was entered on the stricken counts.
On August 28, 2014, the Hospital filed a motion for
partial summary judgment in the case underlying AC
37822 as to the counts alleging intentional infliction of
emotional distress. On March 19, 2015, Judge Tyma
granted that motion on the grounds that the claims
sounded in bystander intentional infliction of emotional
distress claims and such claims were barred by Maloney
v. Conroy, supra, 208 Conn. 392.4 These consolidated
appeals followed. See footnotes 1 and 4 of this opinion.
On appeal in AC 37822, the plaintiffs challenge Judge
Lee’s decision granting of the Hospital’s motion to strike
their negligent infliction of emotional distress claims
and Judge Tyma’s rendering of summary judgment in
favor of the Hospital on their intentional infliction of
emotional distress claims. Specifically, with respect to
Judge Lee’s decision to strike their negligent infliction
of emotional distress counts, the plaintiffs challenge
his characterization of their allegations as claims of
bystander, not direct, emotional distress. The distinc-
tion is critical as bystander claims require the plaintiffs
to allege that they contemporaneously perceived the
Hospital’s negligent act or saw its result shortly there-
after. Clohessy v. Bachelor, supra, 237 Conn. 56. Judge
Lee granted the Hospital’s motion to strike those counts
on the ground that the plaintiffs had failed to allege
facts which, if proven, could establish Clohessy’s con-
temporaneous perception requirement. Similarly, the
plaintiffs argue that Judge Tyma incorrectly character-
ized their intentional infliction of emotional distress
counts as premised on bystander liability and incor-
rectly rendered summary judgment in favor of the Hos-
pital on those counts on the ground that bystander
claims for emotional distress premised on medical mal-
practice are precluded under Maloney v. Conroy, supra,
208 Conn. 392. The plaintiffs argue that Maloney was
superseded after the court granted the Hospital’s
motion for summary judgment by Squeo v. Norwalk
Hospital Assn., 316 Conn. 558, 113 A.3d 952 (2015). We
address each claim in turn.
II
We first consider the plaintiffs’ claim that Judge Lee
and Judge Tyma, in their respective decisions, mischar-
acterized their counts alleging negligent infliction of
emotional distress and intentional infliction of emo-
tional distress as raising claims of bystander emotional
distress. This claim underlies the plaintiffs’ challenges
to the courts’ actions, and is pivotal to our analysis
because bystander emotional distress claims require
the pleading and establishing of elements not required
for bringing direct claims of emotional distress. See
Clohessy v. Bachelor, supra, 237 Conn. 56. Both courts
first concluded that the plaintiffs had raised claims of
bystander emotional distress and, then, applying the
law controlling such claims to the plaintiffs’ claims,
granted the Hospital’s motion to strike the plaintiffs
negligent infliction of emotional distress counts and
motion for summary judgment on the plaintiffs’ inten-
tional infliction of emotional distress counts.
On appeal, the plaintiffs argue that both courts mis-
construed their assertions as bystander claims; rather,
they claim, they raised direct emotional distress claims,
and, on that basis, the judgment underlying AC 37822
should be reversed.
A
We begin our analysis by first considering whether
Judge Lee properly ruled that the plaintiffs’ complaint
alleged bystander, as opposed to direct, negligent inflic-
tion of emotional distress claims. ‘‘The interpretation
of pleadings is always a question of law for the court
. . . . Our review of the trial court’s interpretation of
the pleadings therefore is plenary.’’ (Internal quotation
marks omitted.) Boone v. William W. Backus Hospital,
272 Conn. 551, 559, 864 A.2d 1 (2005).
Connecticut law recognizes two types of negligent
infliction of emotional distress actions. In one category,
the conduct that causes the emotional distress is
directed toward the plaintiff (direct emotional distress
claims). See Carrol v. Allstate Ins. Co., 262 Conn. 433,
444, 815 A.2d 119 (2003). In the second, the conduct
that causes the emotional distress is directed toward
another (bystander emotional distress claims). See
Clohessy v. Bachelor, supra, 237 Conn. 56. Despite their
differences, and like all negligence claims, both subsets
of negligent infliction of emotional distress claims
require proof of the breach of a legally recognized duty,
causing injury. Lawrence v. O & G Industries, Inc., 319
Conn. 641, 649, 126 A.3d 569 (2015) (‘‘[a] cause of action
in negligence is comprised of four elements: duty;
breach of that duty; causation; and actual injury’’ [inter-
nal quotation marks omitted]); see Mirjavadi v.
Vakilzadeh, 310 Conn. 176, 191, 74 A.3d 1278 (2013)
(‘‘[i]f a court determines, as a matter of law, that a
defendant owes no duty to a plaintiff, the plaintiff can-
not recover in negligence from the defendant’’ [internal
quotation marks omitted]). The difference, then,
between whether a set of pleadings sounds in either
claim, turns on whether the duty breached was owed
directly to the plaintiff (direct) or to a third party
(bystander). See Clohessy v. Bachelor, supra, 237 Conn.
35–36. Our agreement with the trial court that the plain-
tiffs’ pleadings sounded in bystander liability is based
on the determination that the duty the plaintiffs alleged
was breached was not a duty owed to them, but to
Helen.
In their complaint that underlies AC 37822, the plain-
tiffs alleged the following regarding duty:
‘‘30. On or about July 24, 2010, over the objection of
Clarence Marsala and Gary Marsala, and without giving
the plaintiff, Clarence Marsala, time to transport the
decedent, the agents, apparent agents, employees,
agent, and/or staff members of the defendant, Yale-
New Haven Hospital, acting within their scope of their
employment with the defendant and in furtherance of
the defendant’s business, permanently removed the ven-
tilator from the decedent, Helen Marsala, causing her
to suffocate and die.
‘‘31. The defendant, Yale-New Haven Hospital, had a
duty to ascertain the wishes of the decedent, Helen
Marsala, from her next of kin, Clarence Marsala, prior
to removing life support.
‘‘32. The defendant, Yale-New Haven Hospital,
ignored the wishes of the decedent, Helen Marsala, as
expressed from her next of kin, Clarence Marsala, prior
to removing life support.
‘‘33. As a result of the defendant Yale-New Haven
Hospital’s conduct, through its agents, employees and/
or staff members acting within the scope of their
employment with the defendant, the plaintiff[s] . . .
suffered the following serious, painful and permanent
injuries: (a) severe emotional distress; (b) loss of oppor-
tunity to say goodbye; (c) depression; (d) loss of sleep;
(e) stress; (f) anxiety; and (g) pain and suffering.’’5
(Emphasis added.)
On the basis of these allegations, the plaintiffs argue
that the Hospital owed them a direct duty to follow
their wishes concerning the reintubation of Helen
because the Hospital could have foreseen that acting
contrary to the plaintiffs’ wishes would cause the plain-
tiffs emotional distress. We disagree. A fair reading of
these allegations leads us to the conclusion that the
allegations of care, or lack of care by the Hospital, all
concern its treatment of Helen. As noted, the plaintiffs
alleged that the Hospital ‘‘removed the ventilator from
the decedent, Helen Marsala, causing her to suffocate
and die,’’ ‘‘had a duty to ascertain the wishes of the
decedent, Helen Marsala,’’ and ‘‘ignored the wishes of
the decedent, Helen Marsala, as expressed from her
next of kin, Clarence Marsala, prior to removing life
support.’’ Only the alleged consequences are claimed
to have impacted the plaintiffs.
Our analysis of duty does not, however, end with the
pleadings. ‘‘Duty is a legal conclusion about relation-
ships between individuals, made after the fact, and
imperative to a negligence cause of action. The nature
of the duty, and the specific persons to whom it is owed,
are determined by the circumstances surrounding the
conduct of the individual. . . . Although it has been
said that no universal test for [duty] ever has been
formulated . . . our threshold inquiry has always been
whether the specific harm alleged by the plaintiff was
foreseeable to the defendant. The ultimate test of the
existence of the duty to use care is found in the foresee-
ability that harm may result if it is not exercised. . . .
By that is not meant that one charged with negligence
must be found actually to have foreseen the probability
of harm or that the particular injury which resulted was
foreseeable . . . . [T]he test for the existence of a legal
duty entails (1) a determination of whether an ordinary
person in the defendant’s position, knowing what the
defendant knew or should have known, would antici-
pate that harm of the general nature of that suffered
was likely to result, and (2) a determination, on the basis
of a public policy analysis, of whether the defendant’s
responsibility for its negligent conduct should extend
to the particular consequences or particular plaintiff in
the case.’’ (Citation omitted; internal quotation marks
omitted.) Sic v. Nunan, 307 Conn. 399, 406–408, 54 A.3d
553 (2012).
‘‘The first part of the test invokes the question of
foreseeability, and the second part invokes the question
of policy.’’ (Internal quotation marks omitted.) Gazo v.
Stamford, 255 Conn. 245, 250, 765 A.2d 505 (2001).
Therefore, ‘‘[f]oreseeability alone is not enough to
establish a legal duty. Many harms are quite literally
foreseeable, yet for pragmatic reasons, no recovery is
allowed. . . . A further inquiry must be made, for we
recognize that duty is not sacrosanct in itself, but is
only an expression of the sum total of those considera-
tions of policy which lead the law to say that the plaintiff
is entitled to protection. . . . While it may seem that
there should be a remedy for every wrong, this is an
ideal limited perforce by the realities of this world.’’
(Internal quotation marks omitted.) Di Teresi v. Stam-
ford Health System, Inc., 142 Conn. App. 72, 80, 63 A.3d
1011 (2013).
Although the plaintiffs argue that the Hospital should
have foreseen that its decision to not reintubate Helen
would cause them emotional distress, foreseeability
alone cannot establish a legally recognized duty. In this
case, preexisting public policy determinations preclude
us from recognizing that the Hospital owed such a legal
duty to the plaintiffs. First, our legislature, by its silence,
has tacitly rejected imposition of the legal duty the
plaintiffs assert. See Sic v. Nunan, supra, 307 Conn.
410 (noting that legislature has primary responsibility
for formulating public policy). General Statutes § 19a-
571 (a) places a duty on any licensed medical facility,
such as the Hospital, to consider only the patient’s
wishes when considering to remove a life support sys-
tem of a terminal and permanently unconscious patient.
And, when a patient’s wishes are known to the patient’s
attending physician, the physician is required to ‘‘con-
sider’’ those wishes; General Statutes § 19a-571 (a) (3);
in the context of exercising the provider’s ‘‘best medical
judgment’’ about how to proceed regarding the patient’s
care. General Statutes § 19a-571 (a) (1). When a
patient’s wishes are unknown to the attending physi-
cian, § 19a-571 (a) (3) directs the physician to determine
the patient’s wishes by consulting other sources includ-
ing the patient’s family. In such a situation, however,
any consultation with a patient’s family members is
undertaken to ‘‘determine the wishes of the patient.’’
General Statutes § 19a-571 (a) (3). Thus, § 19a-571 (a)
unambiguously removes any legal duty for the Hospital
to follow the wishes of a patient’s relatives.
Furthermore, the duty implications of § 19a-571 are
illuminated by an examination of a prior version of that
statute. See Public Acts 1991, No. 91-283, § 2 (P.A. 91-
283). Prior to its amendment in 1991, the statute
required the attending physician to obtain ‘‘the informed
consent of the next of kin, if known, or legal guardian,
if any, of the patient prior to removal’’ of the life support
system. General Statutes (Rev. to 1989) § 19a-571 (3);6
see also McConnell v. Beverly Enterprises-Connecticut,
Inc., 209 Conn. 692, 699 n.5, 553 A.2d 596 (1989). Apart
from the directive to obtain the informed consent of
the patient’s next of kin, the prior and current forms of
§ 19a-571 are substantially similar. We find it instructive
that, in § 2 of P.A. 91-283, the legislature eliminated
the requirement that a health care provider follow the
wishes of anyone except the patient when determining
appropriate end-of-life care. In doing so, the legislature
highlighted the public policy that it is the patient to
whom the health care provider owes a duty of reason-
able care. The public policy implications of § 19a-571,
viewed in context of its 1991 amendment, support our
conclusion that the Hospital, as a patient care facility,
did not owe a legally recognized duty to the plaintiffs
regarding the treatment provided to Helen.
Our conclusions based on public policy are rooted
in decisional law as well as a review of pertinent legisla-
tion. In addition to § 19a-571, relevant decisional law
generally points to four factors ‘‘in determining the
extent of a legal duty as a matter of public policy:
(1) the normal expectations of the participants in the
activity under review; (2) the public policy of encourag-
ing participation in the activity, while weighing the
safety of the participants; (3) the avoidance of increased
litigation; and (4) the decisions of other jurisdictions.’’
Murillo v. Seymour Ambulance Assn., Inc., 264 Conn.
474, 480, 823 A.2d 1202 (2003). In the present case,
however, further discussion of those factors is not
required because our Supreme Court has already
weighed them in the context of determining whether a
health care provider owes a duty of care to someone
other than its patient. Id., 478. In Murillo v. Seymour
Ambulance Assn., Inc., the court ‘‘conclude[d] that, as
a matter of public policy, [a health care provider] owed
no duty to the plaintiff—a bystander who was not a
patient of the [health care provider]—to prevent fore-
seeable injury to her as a result of her observing the
medical procedures performed on her sister’’; id.; and
noted that a health care provider would be expected
to focus its efforts on the patient in need of medical
care and not on that patient’s relative. Id., 480; see also
Jarmie v. Troncale, 306 Conn. 578, 598–624, 50 A.2d
802 (2012); Di Teresi v. Stamford Health System, Inc.,
supra, 142 Con. App. 81–86.
Accordingly, public policy considerations prohibit
the recognition of the legal duty on which the plaintiffs’
claim of direct injury is premised. The plaintiffs’ negli-
gent infliction of emotional distress claims, to have any
viability, could only be characterized as sounding in
bystander liability. See Clohessy v. Bachelor, 237
Conn. 35–36.
B
We likewise conclude that Judge Tyma properly char-
acterized the plaintiffs’ intentional infliction of emo-
tional distress counts as raising claims for bystander
emotional distress. Our conclusion is guided by our
determination that the behaviors alleged by the plain-
tiffs; see footnote 5 of this opinion; related to the Hospi-
tal’s care of Helen and only the consequences affected
the plaintiffs. However, our analysis does not end here.
‘‘In order for the plaintiff to prevail in a case for
liability . . . [alleging intentional infliction of emo-
tional distress], four elements must be established. It
must be shown: (1) that the actor intended to inflict
emotional distress or that he knew or should have
known that emotional distress was the likely result of
his conduct; (2) that the conduct was extreme and out-
rageous; (3) that the defendant’s conduct was the cause
of the plaintiff’s distress; and (4) that the emotional
distress sustained by the plaintiff was severe.’’ (Internal
quotation marks omitted.) Perez-Dickson v. Bridgeport,
304 Conn. 483, 526–27, 43 A.3d 69 (2012). By contrast,
to recover in a case for bystander emotional distress,
a plaintiff must establish that he or she is closely related
to the injured victim, had contemporaneous sensory
perception of the injuring event or immediate observa-
tion of its consequences, that the injured party suffered
substantial injury, and that the recovering party suf-
fered serious emotional distress beyond that antici-
pated from a disinterested observer and which is itself
not abnormal. Clohessy v. Bachelor, supra, 237 Conn. 56.
Reasoned jurisprudence instructs that when a defen-
dant’s extreme and outrageous conduct is directed
toward a third party, but is specifically intended to or
recklessly causes the plaintiff emotional distress, the
plaintiff may, if other elements are also satisfied, have
a claim for bystander (indirect) intentional infliction of
emotional distress. See Clohessy v. Bachelor, supra, 237
Conn. 56. The Restatement (Third) of Torts states that
‘‘[w]hen an actor’s extreme and outrageous conduct
causes harm to a third person, as, for example, when
a murderer kills a husband in the presence of his wife,
the actor may know that the murder is substantially
certain to cause severe emotional harm to the wit-
nessing spouse. The murderer acts at least recklessly
with regard to that risk.’’ 2 Restatement (Third), Torts,
Liability for Physical and Emotional Harm § 46, com-
ment (m), p. 147 (2010). Additionally, mirroring the
limitations placed on bystander claims for emotional
distress in Clohessy, the Restatement (Third) further
suggests that recovery for bystander emotional harm
be limited to bystanders ‘‘who are close family members
and who contemporaneously perceive the event.’’ Id.,
comment (m), p. 148; see Clohessy v. Bachelor, supra,
237 Conn. 56.
Here, the plaintiffs argue that they raised direct inten-
tional infliction of emotional distress claims because
‘‘[i]n total disregard of [Helen’s] wishes and [their] direc-
tions, the [Hospital] unilaterally terminated [Helen’s]
life support and killed her.’’ In making this claim, the
plaintiffs have identified the Hospital’s allegedly
extreme and outrageous conduct as the termination of
Helen’s life support against their direction. They argue
that the Hospital’s action toward Helen caused them
emotional distress and, if the Hospital acted with the
purpose of causing them emotional distress, they have
a direct claim for intentional infliction of emotional
distress as opposed to a bystander claim. This argu-
ment, however, is ill conceived. The plaintiffs’ argument
does not pivot on their status as bystanders or as the
direct recipients of the defendant’s alleged malfea-
sance. Rather, the plaintiffs focus on the concept of
intentional behavior. See Perez-Dickson v. Bridgeport,
supra, 304 Conn. 526 (first prong of intentional infliction
of emotional distress requires plaintiff prove defendant
intended to or recklessly inflicted emotional distress
on plaintiff). The pleadings reflect, however, that the
conduct that the plaintiffs characterize as extreme and
outrageous was not directly inflicted upon them but
upon Helen. Therefore, Judge Tyma properly deter-
mined that the plaintiffs’ intentional infliction of emo-
tional distress counts were premised on bystander
liability.
III
Having already concluded that both Judge Lee and
Judge Tyma, in their decisions, properly characterized
the plaintiffs’ emotional distress claims as bystander
claims; see part II of this opinion; we next consider
whether Judge Lee properly granted the Hospital’s
motion to strike the negligent infliction of emotional
distress claims.
‘‘We begin by setting out the well established standard
of review in an appeal from the granting of a motion
to strike. Because a motion to strike challenges the legal
sufficiency of a pleading and, consequently, requires no
factual findings by the trial court, our review of the
court’s ruling on the [defendant’s motion] is plenary.
. . . We take the facts to be those alleged in the com-
plaint that has been stricken and we construe the com-
plaint in the manner most favorable to sustaining its
legal sufficiency. . . . Thus, [i]f facts provable in the
complaint would support a cause of action, the motion
to strike must be denied. . . . Moreover, we note that
[w]hat is necessarily implied [in an allegation] need
not be expressly alleged. . . . It is fundamental that in
determining the sufficiency of a complaint challenged
by a defendant’s motion to strike, all well-pleaded facts
and those facts necessarily implied from the allegations
are taken as admitted. . . . Indeed, pleadings must be
construed broadly and realistically, rather than nar-
rowly and technically.’’ (Citations omitted; internal quo-
tation marks omitted.) Gazo v. Stamford, supra, 255
Conn. 260.
As previously stated, ‘‘[b]ystander emotional distress
is a derivative claim, pursuant to which a 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 form that third party for the
emotional distress that the bystander suffers as a
result.’’ Squeo v. Norwalk Hospital Assn., supra, 316
Conn. 564. ‘‘Courts historically have been reluctant to
recognize this cause of action’’; id.; in the context of
medical malpractice, which ‘‘differs from the typical
bystander scenario, such as an automobile accident, in
which a lay witness is able to simultaneously assess
that (1) something has gone terribly awry, and (2) the
error is the cause of the resulting injuries to the primary
victim.’’ Id., 577. In fact, in Maloney, our Supreme court
unequivocally ‘‘h[e]ld that a bystander to medical mal-
practice may not recover for emotional distress.’’ Malo-
ney v. Conroy, supra, 208 Conn. 393. Subsequently,
however, our Supreme Court recognized a cause of
action for bystander emotional distress; Clohessy v.
Bachelor, supra, 237 Conn. 56; but substantially limited
the circumstances under which bystander emotional
distress claims could be brought in the medical malprac-
tice context. Squeo v. Norwalk Hospital Assn., supra,
560. In order to bring a claim for bystander emotional
distress in the context of medical malpractice, a plaintiff
must satisfy the following four conditions: ‘‘(1) he or
she is closely related to the injury victim, such as the
parent or the sibling of the victim’’; Clohessy v. Bachelor,
supra, 56; (2) ‘‘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 defen-
dant’s conduct is improper but also that it will likely
result in the death of or serious injury to the primary
victim’’; Squeo v. Norwalk Hospital Assn., supra,
580–81; (3) ‘‘the injury of the victim must be substantial,
resulting in [the victim’s] death or serious physical
injury’’; Clohessy v. Bachelor, supra, 56; and (4) the
bystander’s emotional injuries are severe and debilitat-
ing, such that they warrant a psychiatric diagnosis or
otherwise substantially impair his or her ability to cope
with life’s daily routines and demands. Squeo v. Norwalk
Hospital Assn., supra, 591–92.
Judge Lee granted the Hospital’s motion to strike the
plaintiffs’ bystander emotional distress claims on two
separate grounds. First, he concluded that Maloney v.
Conroy, supra, 208 Conn. 397, barred all claims of
bystander claims of emotional distress premised on
medical negligence. Additionally, Judge Lee determined
that, independent of Maloney, the plaintiffs had not
alleged that they ‘‘witnessed the actual removal of the
respirator or the resulting demise of Helen or arrived
shortly thereafter’’ and, as such, could not satisfy ‘‘the
contemporaneous sensory perception of the event or
conduct that causes the injury, or by [arrival] on the
scene soon thereafter and before substantial change
has occurred in the victim’s condition or location,’’
requirement for bystander claims under Clohessy v.
Bachelor, supra, 237 Conn. 56.
In Squeo, which was decided after the judgments in
the present case, our Supreme Court held that Clohessy
had superseded Maloney’s complete bar against bring-
ing bystander emotional distress actions premised on
medical malpractice. Squeo v. Norwalk Hospital Assn.,
supra, 316 Conn. 570. In reaching this conclusion, how-
ever, the court in Squeo recognized only limited circum-
stances in which a plaintiff can plead a bystander
emotional distress action premised on medical malprac-
tice. Id., 560. One necessary predicate is that the plaintiff
plead facts indicating that he or she ‘‘contemporane-
ously observ[ed] gross professional negligence such
that [he or she] 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.’’ Id., 580–81. The court in Squeo refined,
but did not eliminate, Clohessy’s requirement that the
bystander have contemporaneous sensory perception
of the event. In the present case, it was this requirement
that the court concluded was absent from the com-
plaint. We agree.
In their complaint, the plaintiffs allege that the Hospi-
tal breached its duty to Helen when it decided to change
her status to ‘‘Do Not Reintubate’’ and permanently
removed her ventilator. Nowhere, however, did the
plaintiffs allege that they had contemporaneously
observed this discrete act, knew of its likelihood to
cause the primary victim serious bodily injury or death,
or immediately recognized, without the aid of medical
explanation, that the act constituted gross negligence.
Id., 580–81 (‘‘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 defen-
dant’s conduct is improper but also that it will likely
result in the death of or serious injury to the primary
victim’’); Clohessy v. Bachelor, supra, 237 Conn. 56 (‘‘the
emotional injury of the bystander is caused by the con-
temporaneous sensory perception of the event or con-
duct that causes the injury’’); Amodio v. Cunningham,
182 Conn. 80, 91–92, 438 A.2d 6 (1980) (‘‘[i]n addition
to the requirement that the plaintiff bystander perceive
the negligent act, it appears that recovery for emotional
distress resulting from injury inflicted upon another is
also restricted to situations where the injury to the third
party is manifest contemporaneously with the negli-
gent act’’).
Judge Lee, in striking the plaintiffs’ counts, correctly
noted that ‘‘the plaintiffs nowhere allege that they wit-
nessed the actual removal of the respirator or the
resulting demise of [Helen] or arrived shortly there-
after.’’ Specifically, the plaintiffs do not allege in their
complaint that any of them were present at the commit-
tee meeting when the Hospital made the decision to
permanently remove Helen’s ventilator. Also, they do
not allege that any of the plaintiffs were at the Hospital
when the Helen’s ventilator was ultimately removed
and she died. In sum, the plaintiffs do not allege in their
complaint that any of them witnessed the Hospital’s
alleged misconduct. Accordingly, Judge Lee properly
concluded that the plaintiffs had not stated a claim
for bystander emotional distress under Clohessy. As a
result, the court properly granted the Hospital’s motion
to strike the plaintiffs’ bystander negligent infliction of
emotional distress claims.7
IV
Because we have already concluded that the plain-
tiffs’ allegations sound in bystander emotional distress;
see part II of this opinion; we next determine whether
Judge Tyma correctly granted the Hospital’s motion for
summary judgment on the counts alleging intentional
infliction of emotional distress.8
We review a court’s grant of summary judgment de
novo. Squeo v. Norwalk Hospital Assn., supra, 316
Conn. 592 n.19. It is well established that ‘‘[s]ummary
judgment shall be rendered forthwith if the pleadings,
affidavits and any other proof submitted show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . Although the
party seeking summary judgment has the burden of
showing the nonexistence of any material fact . . . a
party opposing summary judgment must substantiate
its adverse claim by showing that there is a genuine
issue of material fact together with the evidence disclos-
ing the existence of such an issue. . . . It is not enough
. . . for the opposing party merely to assert the exis-
tence of such a disputed issue. . . . Mere assertions
of fact, whether contained in a complaint or in a brief,
are insufficient to establish the existence of a material
fact and, therefore, cannot refute evidence properly
presented to the court [in support of a motion for sum-
mary judgment]. . . .
‘‘As a general rule, then, [w]hen a motion for summary
judgment is filed and supported by affidavits and other
documents, an adverse party, by affidavit or as other-
wise provided by . . . [the rules of practice], must set
forth specific facts showing that there is a genuine issue
for trial, and if he does not so respond, summary judg-
ment shall be entered against him. . . . Requiring the
nonmovant to produce such evidence does not shift the
burden of proof. Rather, it ensures that the nonmovant
has not raised a specious issue for the sole purpose of
forcing the case to trial.’’ (Citations omitted; emphasis
in original; internal quotation marks omitted.) Id.,
593–94.
As noted, in order to prove a claim for bystander
emotional distress in the medical malpractice context,
a plaintiff must allege a close kinship with the victim,
that he or she suffered extreme emotional distress
directly resulting from contemporaneous observance of
the alleged gross malfeasance, that the victim’s injuries
were serious and that the plaintiff’s emotional injuries
are severe and debilitating. Squeo v. Norwalk Hospital
Assn., supra, 316 Conn. 580–81.
In the case at hand, the plaintiffs did not allege, nor
did they produce evidence that they contemporane-
ously saw the conduct they claim was extreme and
outrageous, namely, the permanent removal of Helen’s
ventilator. See id. To the contrary, relevant deposition
testimony established that the plaintiffs could not possi-
bly have witnessed the allegedly extreme and outra-
geous conduct of the Hospital because none of the
plaintiffs was present when the ventilator was perma-
nently removed from Helen. Gary, after learning that
the Hospital was considering removing Helen’s ventila-
tor, left the Hospital before the ventilator was removed
and does not remember whether he saw Helen again.
Tracey never visited Helen in the Hospital. And Michael,
Kevin, and Randy only learned about the removal of
the ventilator after it was removed, during a phone call,
and were not present at the Hospital at the relevant
time. In response to this evidence produced by the
Hospital in support of its summary judgment motion,
the plaintiffs have not adduced any contrary evidence
to establish the existence of a dispute of material fact
on this issue. Faced with the Hospital’s proffer, it was
the plaintiffs’ burden to adduce such evidence as a
means of demonstrating the existence of a genuine issue
of material fact. See Fernandez v. Standard Fire Ins.
Co., 44 Conn. App. 220, 222, 688 A.2d 349 (1997) (‘‘party
opposing [summary judgment] must provide an eviden-
tiary foundation to demonstrate the existence of a genu-
ine issue of material fact’’ [internal quotation marks
omitted]). Therefore, there is no dispute of material
fact that the plaintiffs did not contemporaneously
observe the Hospital’s alleged extreme and outrageous
conduct. As a result, the plaintiffs cannot prevail on
their counts of bystander intentional infliction of emo-
tional distress. Judge Tyma properly rendered summary
judgment in favor of the Hospital on those counts.
The judgments are affirmed.
In this opinion the other judges concurred.
1
Although all of the plaintiffs purported to appeal from the decisions of
Judge Lee and Judge Tyma, on June 10, 2015, this court dismissed the
appeal in AC 37822 as to Clarence in both his individual and representative
capacities because he still has claims pending in the trial court. Accordingly,
for the purpose of clarity in this opinion, we hereinafter refer to Helen’s
five children collectively as the plaintiffs and to Clarence as such.
2
Neither Clarence nor the plaintiffs was present when the Hospital decided
to change Helen’s status to ‘‘Do Not Reintubate’’ or when Helen subsequently
died. However, prior to the Hospital’s ultimate decision, a member of the
Hospital staff did call Gary and informed him that the Hospital was consider-
ing entering a ‘‘Do Not Reintubate’’ order for Helen. Gary, in turn, relayed
the Hospital’s decision to Clarence, who had expressed to the Hospital that
he was Helen’s next of kin and that his children were not to be involved
in making medical decisions on Helen’s behalf. Clarence and Gary then
went to the Hospital and objected to the fact that the Hospital had changed
Helen’s status to ‘‘Do Not Reintubate.’’ At the time Clarence and Gary
objected to Helen’s change in status, Helen was still intubated. Her ventilator
was not removed until after Clarence and Gary left the Hospital and she
passed away later that night.
3
In addition, the operative complaint alleged: violations of Connecticut
Unfair Trade Practices Act (CUTPA) (counts thirteen through nineteen), a
violation of § 19a-571 (count twenty), assault (count twenty-three), battery
(count twenty-four), and a violation of the right to privacy (count twenty-
five). On October 30, 2013, the court, Lee, J., granted the Hospital’s motion
to strike these counts and the plaintiffs did not file a substitute pleading
within the fifteen days as authorized by Practice Book § 10-44, nor did they
appeal from the entry of judgment on those counts.
4
The court, Tyma, J., also granted the Hospital’s motion for summary
judgment in the action filed by Clarence, as the administrator of Helen’s
estate, alleging medical malpractice. The court reasoned that the medical
malpractice claim was duplicative of the wrongful death counts pursued in
the action underlying AC 37822 and, therefore, was legally insufficient. See
Floyd v. Fruit Industries, Inc., supra, 144 Conn. 669. That decision was the
basis for Clarence’s appeal in AC 37821. For reasons stated previously in
this opinion, we decline to review any claim related to that decision.
5
The plaintiffs repeated these allegations in counts two through six of
their complaint, which alleged negligent infliction of emotional distress as to
each individual plaintiff respectively. The plaintiffs also claimed intentional
infliction of emotional distress (counts eight through twelve), premised on
the same factual allegations, but alleging further that the Hospital’s actions
were intentional and extreme and outrageous. Specifically, in those counts,
the plaintiffs alleged that:
‘‘31. The defendant, Yale-New Haven Hospital, through its agents, apparent
agents, employees, and/or staff members, intended to inflict emotional dis-
tress on the plaintiff[s] . . . or knew or should have known that emotional
distress was the likely result of their conduct.
‘‘32. The defendant’s conduct of encouraging its agents, employees and/
or staff members to remove the ventilator from [Helen] despite the family’s
objections when it knew or should have known that without the ventilator
[Helen] would pass away constitutes extreme and outrageous conduct.’’
6
General Statutes (Rev. 1989) § 19a-571 was entitled ‘‘Liability re removal
of life support system of incompetent patient. Attending physician must
obtain consent of next of kin consideration of wishes of patient. Document
as expression of wishes.’’ and provided: ‘‘Any physician licensed under
chapter 370 or any licensed medical facility which removes or causes the
removal of a life support system of an incompetent patient shall not be
liable for damages in any civil action or subject to prosecution in any criminal
proceeding for such removal, provided (1) the decision to remove such life
support system is based on the best medical judgment of the attending
physician; (2) the attending physician deems the patient to be in a terminal
condition; (3) the attending physician has obtained the informed consent
of the next of kin, if known, or legal guardian, if any, of the patient prior
to removal; and (4) the attending physician has considered the patient’s
wishes as expressed by the patient directly, through his next of kin or legal
guardian, or in the form of a document executed in accordance with section
19a-575, if any such document is presented to, or in the possession of, the
attending physician at the time the decision to terminate a life support
system is made. If the attending physician does not deem the patient to
be in a terminal condition, beneficial medical treatment and nutrition and
hydration must be provided.’’ See McConnell v. Beverly Enterprises-Con-
necticut, Inc., supra, 209 Conn. 699 n.5.
7
We further note that the plaintiffs argued to the trial court that they had
pleaded a direct claim of negligent infliction of emotional distress and that
their claim was not premised on bystander liability. On appeal, the plaintiffs
argue that because Squeo subsequently changed the landscape of bystander
claims for emotional distress in the medical malpractice context, they should
not be precluded from defending their pleadings on a basis that they already
disavowed. Whether the effect of Squeo allows the plaintiffs to change tack
on appeal without amending their pleadings is a question we need not reach
because the plaintiffs, for all their reliance on Squeo, have not pleaded facts
tending to establish the requirements mandated by Squeo, specifically that
they witnessed gross negligence on the part of the Hospital; Squeo v. Norwalk
Hospital Assn., supra, 316 Conn. 580–81; and that they ‘‘suffer[ed] injuries
that are severe and debilitating, such that they warrant a psychiatric diagno-
sis or otherwise substantially impair the bystander’s ability to cope with
life’s daily routines and demands.’’ Id., 591–92. We further note that pleading
requirements similar to those adopted in Squeo preexisted the filing of the
plaintiffs’ complaint. See Clohessy v. Bachelor, supra, 237 Conn. 56.
8
Although Judge Tyma granted the Hospital’s motion pursuant to the now
abandoned holding of Maloney, our review of a court’s granting of a motion
for summary judgment is plenary; Squeo v. Norwalk Hospital Assn., supra,
316 Conn. 592 n.19; and we may affirm the judgment on any grounds sup-
ported in the record. See Gerardi v. Bridgeport, 294 Conn. 461, 466–67, 985
A.2d 328 (2010). In the present case, the alternative ground upon which we
affirm the court’s judgment was briefed and argued before both the trial
court and this court. See White v. Mazda Motor of American, Inc., 313
Conn. 610, 619–21, 99 A.3d 1079 (2014).