Gilman v. Shames

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GLENN GILMAN v. BRIAN SHAMES ET AL.
(AC 41412)
Sheldon, Moll and Seeley, Js.
Syllabus
The plaintiff appealed to this court from the judgment of the trial court
dismissing his action against the defendants, the state of Connecticut
and S, a physician who had provided medical care and treatment to the
decedent, who was the plaintiff’s fiance´e and domestic partner. The
plaintiff’s operative complaint raised claims sounding in bystander emo-
tional distress directed to each of the defendants. The plaintiff alleged,
inter alia, that S had administered ineffective treatments to the decedent
for approximately eight months and that, notwithstanding the lack of
improvement in her condition, S had failed to alter the course of the
treatments or to take further diagnostic action as was consistent with
standard practice, which constituted a substantial factor in the dece-
dent’s death. The plaintiff additionally alleged that he had been harmed
by S’ conduct and by the state’s breach of its duty to the decedent to
ensure that the state’s agents, servants or employees acted as reasonably
prudent medical professionals. The trial court granted the defendants’
motion to dismiss for lack of subject matter jurisdiction, and the plaintiff
appealed to this court. On appeal, he claimed, inter alia, that the trial
court erroneously concluded that his bystander emotional distress claim
directed to S in S’ individual capacity was barred by statutory (§ 4-165)
immunity. Specifically, he claimed that the facts pleaded in his operative
complaint were sufficient to demonstrate that S’ conduct was reckless
and, thus, that S was not protected by statutory immunity under § 4-
165. Held:
1. The trial court properly dismissed the plaintiff’s claim directed to S in S’
individual capacity on the basis of statutory immunity pursuant to § 4-
165, as the plaintiff failed to allege facts demonstrating that S acted in
a reckless manner; S’ conduct in treating the decedent over the course
of approximately eight months, during which S allegedly continued to
administer ineffective treatment to the decedent and failed to alter the
course of treatments or to take further diagnostic action as was consis-
tent with standard practice, even though the plaintiff and the decedent
expressed to S that the treatments were not working, did not demon-
strate that S acted in a reckless manner, as it did not tend to take
on the aspect of highly unreasonable conduct, involving an extreme
departure from ordinary care, in a situation where a high degree of
danger was apparent, and the plaintiff’s conclusory use of the terms
‘‘reckless’’ and ‘‘recklessly’’ in describing S’ conduct was not sufficient
to establish that S’ actions were reckless.
2. The plaintiff could not prevail on his claim that the trial court erroneously
concluded that it lacked subject matter jurisdiction over his bystander
emotional distress claim directed to the state; that court properly deter-
mined that the plaintiff’s bystander emotional distress claim, which was
derivative in nature, was not viable in the absence of a predicate wrongful
death action commenced by the decedent’s estate, and the plaintiff’s
claim that the trial court erred in dismissing his bystander emotional
distress claim directed to the state on the ground that his failure to join
the decedent’s estate in the present action deprived the court of subject
matter jurisdiction misconstrued the decision of the court, which did
not determine that the decedent’s estate was an indispensable party
but, instead, properly concluded that it could not reach the merits of the
plaintiff’s derivative claim because it had not been joined to a predicate
wrongful death action brought by the decedent’s estate.
Argued February 5—officially released May 7, 2019
Procedural History
Action to recover damages for bystander emotional
distress, and for other relief, brought to the Superior
Court in the judicial district of New Britain, where the
court, Morgan, J., granted the plaintiff’s motion to sub-
stitute the state of Connecticut as a party defendant;
thereafter, the plaintiff filed an amended complaint;
subsequently, the court granted the motion to dismiss
filed by the named defendant et al. and rendered judg-
ment thereon, from which the plaintiff appealed to this
court. Affirmed.
Glenn Gilman, self-represented, the appellant
(plaintiff).
Michael G. Rigg, for the appellees (defendants).
Opinion
MOLL, J. The plaintiff, Glenn Gilman, appeals from
the judgment of the trial court dismissing his action
against the defendants Brian Shames, M.D., and the
state of Connecticut (state).1 On appeal, the plaintiff
claims that the court erred in concluding that it lacked
subject matter jurisdiction over his bystander emotional
distress claims on the grounds that (1) his claim against
Shames, to the extent that the plaintiff was suing
Shames in his individual capacity, was barred by statu-
tory immunity pursuant to General Statutes § 4-165, and
(2) his claim against the state was derivative of a wrong-
ful death action that had not been brought and, as a
result of the expiration of the limitations period set
forth in General Statutes § 52-555, could not be brought
by the estate of the decedent, Lisa Wenig. We affirm
the judgment of the trial court.
The following procedural history and facts, as alleged
in the plaintiff’s operative complaint or as undisputed in
the record, are relevant to our resolution of the appeal.
From about December 15, 2014 through August 19, 2015,
Shames—who was at all relevant times a physician
employed by the University of Connecticut Health Cen-
ter, of which the John Dempsey Hospital (hospital) is
a part2—provided medical care and treatment to the
decedent, who was the plaintiff’s fiance´e and domestic
partner. The decedent died on October 1, 2015.
In June, 2016, pursuant to General Statutes § 4-147,3
the plaintiff filed a notice of claim with the Office of
the Claims Commissioner seeking permission to sue
the state for damages on the basis of injuries he claimed
to have suffered, including emotional distress and loss
of consortium, stemming from medical malpractice
allegedly committed against the decedent by Shames
and the hospital. By way of a memorandum of decision
dated February 23, 2017, the Claims Commissioner,
absent objection, authorized the plaintiff to sue the
state for damages of up to $500,000 for alleged medical
malpractice by general surgeons or other similar health
care providers who constitute state officers and
employees, as defined by General Statutes (Rev. to
2015) § 4-141, of the hospital.
On June 26, 2017, the plaintiff, representing himself,
commenced the present action against Shames and the
hospital. In his original two count complaint, the plain-
tiff raised claims sounding in bystander emotional dis-
tress directed to Shames and the hospital.
On August 25, 2017, Shames and the hospital filed a
motion to dismiss the action, which was accompanied
by a separate memorandum of law, asserting that the
court lacked subject matter jurisdiction over the plain-
tiff’s bystander emotional distress claims. Specifically,
they asserted that the plaintiff’s claim directed to
Shames was barred by sovereign immunity and/or by
statutory immunity pursuant to § 4-165, and that the
plaintiff could not pursue a bystander emotional dis-
tress action in the absence of a wrongful death action
commenced by the decedent’s estate, which had not
brought a wrongful death action or received authoriza-
tion from the Claims Commissioner to commence such
an action. In addition, Shames and the hospital argued
that the plaintiff improperly had brought suit against
the hospital because the plaintiff had received authori-
zation from the Claims Commissioner to sue the state
only. On October 11, 2017, the plaintiff filed a motion
to substitute the state as a party defendant in lieu of
the hospital, which the trial court granted on October
24, 2017. On October 23, 2017, the plaintiff filed an
objection and a separate memorandum of law in opposi-
tion to the motion to dismiss. On November 6, 2017,
the defendants filed a reply brief,4 in which they argued
additionally that the decedent’s estate would be time
barred from bringing a wrongful death action as a result
of the expiration of the subject matter jurisdictional
limitations period set forth in § 52-555.5
On November 13, 2017, the plaintiff filed his operative
two count complaint raising claims sounding in
bystander emotional distress directed to each of the
defendants. He alleged, inter alia, that Shames had
administered ineffective treatments to the decedent for
approximately eight months and that, notwithstanding
the lack of improvement in her condition, Shames had
failed to alter the course of the treatments or to take
‘‘further diagnostic action as is consistent with standard
practice,’’ which constituted a substantial factor in the
decedent’s death. The plaintiff additionally alleged that
he had been harmed by Shames’ conduct and by the
state’s breach of its duty to the decedent to ensure that
the state’s agents, servants, and/or employees acted
as ‘‘reasonably prudent medical professionals.’’ More
particularly, the plaintiff alleged that he had sustained
injuries stemming from his ‘‘contemporary sensory per-
ception of observing and/or experiencing the demise
of the decedent, the decedent’s suffering, the decedent’s
health deteriorating, the decedent’s pain and suffering,
the administration of life support and, ultimately, [the
decedent’s] death . . . .’’
On December 4, 2017, the court heard argument on
the defendants’ motion to dismiss. On February 9, 2018,
the court granted the motion to dismiss. With respect
to the plaintiff’s bystander emotional distress claim
directed to Shames, the court concluded that (1) to the
extent that the plaintiff was suing Shames in Shames’
official capacity as an employee of the hospital, which
was an agent of the state, the plaintiff’s claim was barred
by sovereign immunity, and (2) to the extent that the
plaintiff was suing Shames in Shames’ individual capac-
ity, the plaintiff’s claim was barred by statutory immu-
nity pursuant to § 4-165. In addition, without limiting
its analysis to the plaintiff’s claim against the state, the
court concluded that the plaintiff’s bystander emotional
distress ‘‘claims’’ were derivative claims that were not
viable absent a predicate wrongful death action com-
menced by the decedent’s estate, which had not com-
menced such an action and, as a result of the expiration
of the limitations period set forth in § 52-555, could not
commence such an action. This appeal followed.
‘‘The standard of review for a court’s decision on a
motion to dismiss is well settled. A motion to dismiss
tests, inter alia, whether, on the face of the record, the
court is without jurisdiction. . . . [O]ur review of the
court’s ultimate legal conclusion and resulting [determi-
nation] of the motion to dismiss will be de novo. . . .
When a . . . court decides a jurisdictional question
raised by a pretrial motion to dismiss, it must consider
the allegations of the complaint in their most favorable
light. . . . In this regard, a court must take the facts
to be those alleged in the complaint, including those
facts necessarily implied from the allegations, constru-
ing them in a manner most favorable to the pleader.
. . . In undertaking this review, we are mindful of the
well established notion that, in determining whether a
court has subject matter jurisdiction, every presump-
tion favoring jurisdiction should be indulged.’’ (Internal
quotation marks omitted.) Dubinsky v. Reich, 187 Conn.
App. 255, 259, 201 A.3d 1153 (2019).
On appeal, the plaintiff claims that the court erred
in concluding that it lacked subject matter jurisdiction
to entertain his bystander emotional distress claims.
Specifically, the plaintiff asserts that (1) his claim
directed to Shames in Shames’ individual capacity was
not barred by statutory immunity pursuant to § 4-165,6
and (2) the absence of a wrongful death action brought
by the decedent’s estate did not deprive the court of
subject matter jurisdiction over his claim against the
state. These claims are unavailing.
I
The plaintiff first claims that the court erroneously
concluded that his bystander emotional distress claim
directed to Shames in Shames’ individual capacity was
barred by statutory immunity pursuant to § 4-165. Spe-
cifically, he asserts that the facts pleaded in his opera-
tive complaint were sufficient to demonstrate that
Shames’ conduct was reckless and, thus, that Shames
was not protected by statutory immunity under § 4-165.
We disagree.
Section 4-165 (a) provides: ‘‘No state officer or
employee shall be personally liable for damage or
injury, not wanton, reckless or malicious, caused in the
discharge of his or her duties or within the scope of
his or her employment. Any person having a complaint
for such damage or injury shall present it as a claim
against the state under the provisions of this chapter.’’
‘‘In other words, state employees may not be held per-
sonally liable for their negligent actions performed
within the scope of their employment. . . . State
employees do not, however, have statutory immunity
for wanton, reckless or malicious actions, or for actions
not performed within the scope of their employment.
For those actions, they may be held personally liable,
and a plaintiff who has been injured by such actions is
free to bring an action against the individual
employee. . . .
‘‘In the posture of this case, we examine the pleadings
to decide if the plaintiff has alleged sufficient facts . . .
with respect to personal immunity under § 4-165, to
support a conclusion that the [defendant was] acting
outside the scope of [his] employment or wilfully or
maliciously. . . . The question before us, therefore, is
whether the facts as alleged in the pleadings, viewed
in the light most favorable to the plaintiff, are sufficient
to survive a motion to dismiss on the ground of statutory
immunity. . . .
‘‘We thus turn to the matter of whether the plaintiff
has alleged facts that, if proven, are sufficient to demon-
strate that the defendant acted wantonly, recklessly, or
maliciously. In applying § 4-165, our Supreme Court has
understood wanton, reckless or malicious to have the
same meaning as it does in the common-law context.
. . . Under the common law, [i]n order to establish that
the [defendant’s] conduct was wanton, reckless, wilful,
intentional and malicious, the plaintiff must prove, on
the part of the [defendant], the existence of a state of
consciousness with reference to the consequences of
one’s acts . . . . [Such conduct] is more than negli-
gence, more than gross negligence. . . . [I]n order to
infer it, there must be something more than a failure to
exercise a reasonable degree of watchfulness to avoid
danger to others or to take reasonable precautions to
avoid injury to them. . . . It is such conduct as indi-
cates a reckless disregard of the just rights or safety
of others or of the consequences of the action. . . .
[In sum, such] conduct tends to take on the aspect
of highly unreasonable conduct, involving an extreme
departure from ordinary care, in a situation where a
high degree of danger is apparent.’’ (Citations omitted;
internal quotation marks omitted.) Lawrence v. Weiner,
154 Conn. App. 592, 597–98, 106 A.3d 963, cert. denied,
315 Conn. 925, 109 A.3d 921 (2015). ‘‘Claims involving
. . . statutory immunity, pursuant to § 4-165, implicate
the court’s subject matter jurisdiction.’’ (Internal quota-
tion marks omitted.) Id., 597.
In his operative complaint, the plaintiff alleged in
relevant part that: Shames treated the decedent from
on or about December 15, 2014 through August 19, 2015;
Shames’ treatments, which included the administration
of intravenous fluids to the decedent to fight an infec-
tion, did not improve her condition; and despite the
lack of improvement in the decedent’s condition, as
well as the plaintiff and the decedent expressing to
Shames that the treatments were not working, Shames
continued to administer the ineffective treatments for
approximately eight months and ‘‘failed grossly negli-
gently and/or recklessly’’ to alter the course of treat-
ments or to take ‘‘further diagnostic action as is
consistent with standard practice.’’ In paragraph thirty-
seven of his operative complaint, the plaintiff alleged:
‘‘[Shames’] continuous and repeated grossly negligent
treatment of [the decedent], cumulatively over the
course of almost eight (8) months, constitute[d] a con-
scious disregard for the substantial likelihood of misdi-
agnosis and concomitantly of injury arising therefrom,
and [was] thereby reckless.’’ In its decision granting
the defendants’ motion to dismiss, the court determined
that because the plaintiff’s operative complaint, con-
strued in the light most favorable to the plaintiff, failed
to allege facts establishing that Shames’ conduct ‘‘rose
to the level of egregiousness necessary to be considered
wanton, reckless, or malicious,’’ Shames, in his individ-
ual capacity, was immune from suit pursuant to § 4-165.
We agree with the court that the plaintiff failed to
allege facts demonstrating that Shames acted in a reck-
less manner. Shames’ conduct in treating the decedent
over the course of approximately eight months, as
pleaded by the plaintiff in his operative complaint, did
not ‘‘[tend] to take on the aspect of highly unreasonable
conduct, involving an extreme departure from ordinary
care, in a situation where a high degree of danger is
apparent.’’ (Internal quotation marks omitted.) Law-
rence v. Weiner, supra, 154 Conn. App. 598. In addition,
the plaintiff’s conclusory use of the terms ‘‘reckless’’
and ‘‘recklessly’’ in describing Shames’ conduct was
not sufficient to establish that Shames’ actions were
reckless. See, e.g., Dumond v. Denehy, 145 Conn. 88,
91, 139 A.2d 58 (1958) (‘‘Simply using the word ‘reckless’
or ‘recklessness’ is not enough. A specific allegation
setting out the conduct that is claimed to be reckless
or wanton must be made.’’). Thus, the court properly
dismissed the plaintiff’s claim directed to Shames in
Shames’ individual capacity on the basis of statutory
immunity pursuant to § 4-165.
II
The plaintiff next claims that the court erroneously
concluded that it lacked subject matter jurisdiction over
his bystander emotional distress claim directed to the
state on the basis that, as a derivative claim, his claim
could not be raised in the absence of a predicate wrong-
ful death action commenced by the decedent’s estate.
Specifically, he asserts that (1) his claim against the
state was viable as a freestanding claim and was not
dependent on the existence of a predicate wrongful
death action commenced by the decedent’s estate, and
(2) the court’s dismissal of his claim was improper
because his failure to join the decedent’s estate in the
present action did not implicate the court’s subject mat-
ter jurisdiction.7 We are not persuaded.
A
We first turn to the plaintiff’s contention that his
bystander emotional distress claim against the state
was not dependent on the existence of a wrongful death
action brought by the decedent’s estate but, rather, was
viable as a freestanding claim. The defendants argue
that the plaintiff’s bystander emotional distress claim
against the state was a derivative claim that could not
be brought in the absence of a predicate wrongful death
action commenced by the decedent’s estate. We agree
with the defendants.
In its decision granting the defendants’ motion to
dismiss, after concluding that the plaintiff’s bystander
emotional distress claim directed to Shames was barred
by sovereign immunity and by statutory immunity, the
court stated: ‘‘Turning to [the plaintiff’s] bystander emo-
tional distress claims, the defendants argue that the
court lacks subject matter jurisdiction over these claims
because they are derivative of the wrongful death
[action] that was not brought, and due to the expiration
of the statute of limitations established by [§ 52-555],
now cannot be brought on behalf of [the decedent’s]
estate. The court agrees with the defendants. Like a loss
of consortium claim, a claim for bystander emotional
distress is a derivat[ive] claim. Squeo v. Norwalk Hospi-
tal Assn., 316 Conn. 558, 564, [113 A.3d 932] (2015).
Consequently, it cannot be brought as a freestanding
claim where there is no valid underlying predicate
action. See Jacoby v. Brinckerhoff, 250 Conn. 86, [88–
95], [735 A.2d 347] (1999) (husband cannot maintain
derivative action of loss of consortium where his wife
failed to sue defendant [psychiatrist] for malpractice);
see also Voris v. Molinaro, 302 Conn. 791, 798–801, [31
A.3d 363] (2011) (holding that settlement of predicate
injury claim extinguishes derivative loss of consortium
claim). Neither Squeo v. Norwalk Hospital Assn., supra,
558, nor any other Connecticut appellate authority
holds otherwise. [The plaintiff’s] failure to join his deriv-
at[ive] bystander emotional distress action with a valid
action brought on behalf of [the decedent’s] estate is
fatal to his claim. Absent a valid underlying predicate
action brought on behalf of [the decedent’s] estate, the
court does not have subject matter jurisdiction to adju-
dicate [the plaintiff’s] bystander emotional distress
claim.’’8
We observe that ‘‘[b]ystander emotional distress is a
derivative claim, pursuant to which a bystander who
witnesses another person . . . suffer injury or death
as a result of the negligence of a third party seeks to
recover from that third party for the emotional distress
that the bystander suffers as a result.’’ Squeo v. Norwalk
Hospital Assn., supra, 316 Conn. 564. ‘‘[B]ystander emo-
tional distress derives from bodily injury to another
. . . . [B]ecause emotional distress, by itself, is not a
bodily injury, it can be compensable only if it flows
from the bodily injury of another person. . . . This is
because but for the bodily injury to [another], the plain-
tiff would not . . . [suffer] any emotional injuries. In
other words, the plaintiff’s injuries are the natural and
probable consequence of . . . having witnessed the
accident . . . . Therefore, the measure of the plain-
tiff’s recovery is not governed by the fact that his sepa-
rate damages arose out of the same accident, but by
the fact that they arose out of the same bodily injury
. . . . Given the but-for relationship between the
underlying injury and the derivative injury of bystander
emotional distress, the bystander’s emotional distress is
causally connected to the underlying injury. Bystander
emotional distress, therefore, by its very nature, results
from and arises out of the underlying personal injury
or death.’’ (Citations omitted; emphasis in original;
internal quotation marks omitted.) Velecela v. All Habi-
tat Services, LLC, 322 Conn. 335, 340–41, 141 A.3d
778 (2016).
The parties have not cited any appellate authority,
and we are aware of none, specifically addressing
whether a bystander emotional distress claim may be
pursued without being joined to a predicate claim
asserted by the injured principal. Our Supreme Court’s
decision in Jacoby v. Brinckerhoff, supra, 250 Conn.
86, which analyzed the viability of a plaintiff’s loss of
consortium claim in the absence of a predicate action
commenced by the plaintiff’s former spouse, is instruc-
tive, however. In Jacoby, the plaintiff brought an action
against the defendant, a psychiatrist, asserting, inter
alia, a loss of consortium claim on the basis of allega-
tions that the defendant’s treatment of the plaintiff’s
former spouse constituted a failure to render proper
care.9 Id., 88. The plaintiff’s former spouse did not com-
mence an action against the defendant, and she refused
to join the plaintiff’s action. Id., 88–90. The trial court,
in granting a motion to strike filed by the defendant,
struck all counts in the plaintiff’s operative complaint
and subsequently rendered judgment in accordance
with its ruling thereon. Id., 89. The plaintiff appealed
from that judgment to this court, and our Supreme
Court transferred the appeal to itself. Id., 89 n.3.
On appeal in Jacoby, the plaintiff argued in relevant
part that he was entitled to pursue his loss of consor-
tium claim without joining it to a predicate claim
brought by his former wife because the former wife’s
refusal to participate in his action rendered such joinder
impossible. Id., 89–90. Our Supreme Court rejected that
argument. Observing that in a prior case it had stated,
in dictum, that a loss of consortium claim would be
barred when the injured spouse’s action had been termi-
nated by settlement or by an adverse judgment on the
merits, the court determined that it could ‘‘discern no
viable distinction between precluding a consortium
claim when the injured spouse has settled with the
alleged tortfeasor and precluding it when the injured
spouse, as in this case, has declined altogether to sue
the alleged tortfeasor. [Our Supreme Court’s] statement
reflects the premise, which the plaintiff does not chal-
lenge, that an action for loss of consortium, although
independent in form, is derivative of the injured
spouse’s cause of action . . . . Although the nonin-
jured spouse has a right to choose whether to bring or
to forgo a derivative consortium claim . . . there is
logical appeal to linking that right to an existing viable
claim by the injured spouse.’’ (Citations omitted; inter-
nal quotation marks omitted.) Id., 91–92.
Without deciding whether the failure to join a predi-
cate claim by an injured spouse with a derivative loss
of consortium claim would be excusable under certain
circumstances, the court concluded that the plaintiff’s
failure to join his loss of consortium claim with a predi-
cate action brought by his former spouse was fatal. The
court stated: ‘‘It is inherent in the nature of a derivative
claim that the scope of the claim is defined by the injury
done to the principal. The party pursuing a derivative
cause of action may have a claim for special damages
arising out of that injury, but he may not redefine the
nature of the underlying injury itself. In the ordinary
physical injury case, a person pursuing a derivative
claim may be unable to proceed if the injured spouse’s
rights were compromised by that spouse’s comparative
responsibility for the injury. . . . It follows that, in the
case of medical malpractice, a person pursuing a deriva-
tive claim may be barred from bringing suit if the injured
spouse gave informed consent to the professional pro-
cedure that caused the patient’s condition to change.’’
(Citations omitted.) Id., 93–94. The court proceeded to
note that the record did not disclose why the plaintiff’s
former spouse had declined to sue the defendant and
surmised that the former spouse, inter alia, may not
have believed that the defendant’s treatment had
injured her. Id., 94. The court stated: ‘‘We are not pre-
pared to hold that a derivative cause of action may
proceed upon the mere possibility that the plaintiff’s
spouse may have sustained an injury that resulted from
negligent or intentional misconduct on the part of a
psychiatrist. . . . A derivative cause of action for loss
of consortium does not confer surrogate authority on
the noninjured spouse to pursue a claim that does not
yet exist. We conclude, therefore, that the plaintiff can-
not pursue an action for loss of consortium in the
absence of any basis in the record for a finding that
his former spouse was injured as a result of her treat-
ment by the defendant.’’ (Citation omitted.) Id., 94–95.
Our Supreme Court’s rationale in Jacoby guides our
analysis. Here, the plaintiff’s bystander emotional dis-
tress claim against the state, which was derivative in
nature; Squeo v. Norwalk Hospital Assn., supra, 316
Conn. 564; was not brought in conjunction with a wrong-
ful death action commenced by the decedent’s estate.
The record is devoid of any explanation as to why the
decedent’s estate has not brought a wrongful death
action. Relying on our Supreme Court’s rationale in
Jacoby, we conclude that the plaintiff’s derivative
bystander emotional distress claim against the state is
not viable in the absence of a predicate wrongful death
action brought by the decedent’s estate. See Jacoby v.
Brinckerhoff, supra, 250 Conn. 94–95; see also Voris v.
Molinaro, supra, 302 Conn. 797–801 (concluding that
trial court properly granted defendant’s motion to strike
plaintiff’s loss of consortium claim on ground that predi-
cate negligence claim brought by plaintiff’s spouse had
been settled); Musorofiti v. Vlcek, 65 Conn. App. 365,
375, 783 A.2d 36 (‘‘a derivative cause of action . . .
is dependent on the legal existence of [a] predicate
action’’), cert. denied, 258 Conn. 938, 786 A.2d 426
(2001). Accordingly, the court correctly concluded that
the plaintiff’s bystander emotional distress claim
directed to the state failed in the absence of a wrongful
death action commenced by the decedent’s estate.10
B
The plaintiff also contends that the court erred in
dismissing his bystander emotional distress claim
directed to the state on the basis that his failure to join
the decedent’s estate in the present action deprived
the court of subject matter jurisdiction. Specifically, he
asserts that the nonjoinder of a party does not implicate
a court’s subject matter jurisdiction and, thus, the court
erred in dismissing his claim. See General Linen Service
Co. v. Cedar Park Inn & Whirlpool Suites, 179 Conn.
App. 527, 532, 180 A.3d 966 (2018) (‘‘It is well settled
that the failure to join an indispensable party does not
deprive a trial court of subject matter jurisdiction. See
General Statutes § 52-108 and Practice Book §§ 9-18, 9-
19 and 11-3 . . . . [T]he failure to join an indispensable
party results in a jurisdictional defect only if a statute
mandates the naming and serving of [a particular]
party.’’ [Citations omitted; emphasis in original; internal
quotation marks omitted.]). The plaintiff misconstrues
the court’s decision. The court did not determine that
the decedent’s estate was an indispensable party,11
whose interests would be affected substantively by its
adjudication of the plaintiff’s bystander emotional dis-
tress claim and whose participation in the present case
would, therefore, be necessary. Instead, the court prop-
erly concluded that it could not reach the merits of
the plaintiff’s derivative claim because it had not been
joined to a predicate wrongful death action brought
by the decedent’s estate. Accordingly, we reject the
plaintiff’s argument.
The judgment is affirmed.
In this opinion the other judges concurred.
1
For purposes of clarity, we refer to Shames and the state collectively
as the defendants and individually by name.
2
See General Statutes § 10a-251 (‘‘[i]t is hereby found and determined
that the John Dempsey Hospital of The University of Connecticut Health
Center is a vital resource of The University of Connecticut and the state’’).
3
General Statutes § 4-147 provides in relevant part: ‘‘Any person wishing
to present a claim against the state shall file with the Office of the Claims
Commissioner a notice of claim, in duplicate, containing the following infor-
mation: (1) The name and address of the claimant; the name and address
of his principal, if the claimant is acting in a representative capacity, and
the name and address of his attorney, if the claimant is so represented; (2)
a concise statement of the basis of the claim, including the date, time, place
and circumstances of the act or event complained of; (3) a statement of the
amount requested; and (4) a request for permission to sue the state, if such
permission is sought. . . .’’
Relatedly, General Statutes § 4-160 provides in relevant part: ‘‘(a) When-
ever the Claims Commissioner deems it just and equitable, the Claims Com-
missioner may authorize suit against the state on any claim which, in the
opinion of the Claims Commissioner, presents an issue of law or fact under
which the state, were it a private person, could be liable.
‘‘(b) In any claim alleging malpractice against the state, a state hospital
or against a physician, surgeon, dentist, podiatrist, chiropractor or other
licensed health care provider employed by the state, the attorney or party
filing the claim may submit a certificate of good faith to the Office of the
Claims Commissioner in accordance with section 52-190a. If such a certifi-
cate is submitted, the Claims Commissioner shall authorize suit against the
state on such claim. . . .’’
4
On November 29, 2017, the plaintiff filed a request to file a proposed
surreply, which was attached thereto. The court granted the request on
February 9, 2018, at which time the surreply was deemed filed.
5
General Statutes § 52-555 provides: ‘‘(a) In any action surviving to or
brought by an executor or administrator for injuries resulting in death,
whether instantaneous or otherwise, such executor or administrator may
recover from the party legally at fault for such injuries just damages together
with the cost of reasonably necessary medical, hospital and nursing services,
and including funeral expenses, provided no action shall be brought to
recover such damages and disbursements but within two years from the
date of death, and except that no such action may be brought more than
five years from the date of the act or omission complained of.
‘‘(b) Notwithstanding the provisions of subsection (a) of this section, an
action may be brought under this section at any time after the date of the
act or omission complained of if the party legally at fault for such injuries
resulting in death has been convicted or found not guilty by reason of mental
disease or defect of a violation of section 53a-54a, 53a-54b, 53a-54c, 53a-
54d, 53a-55 or 53a-55a with respect to such death.’’
6
On appeal, the plaintiff does not challenge the court’s ruling that his
claim directed to Shames in Shames’ official capacity as an employee of
the hospital was barred by sovereign immunity.
7
The plaintiff also asserts that the court implicitly ruled that his bystander
emotional distress claim was barred by the doctrine of res judicata on the
basis that the decedent’s estate had not commenced a predicate wrongful
death action. He contends that the court’s implicit ruling was erroneous
because no judgment has been rendered that would bar his bystander emo-
tional distress claim. This claim is without merit, as the court’s ruling con-
tains no language to suggest that it was based on res judicata principles.
8
In their respective appellate briefs, the parties interpret the court’s deci-
sion as dismissing the plaintiff’s bystander emotional distress claim directed
to Shames solely on the basis of sovereign immunity and statutory immunity,
and dismissing the plaintiff’s bystander emotional distress claim directed
to the state on the ground that his claim was not viable in the absence of
a wrongful death action brought by the decedent’s estate. We can think of
no reason why the absence of a predicate wrongful death action brought
by the decedent’s estate could not serve as an independent ground upon
which the plaintiff’s claim directed to Shames could have been dismissed.
Nevertheless, because neither party argues that the court dismissed the
claim against Shames on that ground, we do not opine on this issue further.
9
The plaintiff named a second defendant in the action, but he later with-
drew his claims against that defendant. Jacoby v. Brinckerhoff, supra, 250
Conn. 88 n.1.
10
We note that in Jacoby v. Brinckerhoff, supra, 250 Conn. 89, the trial
court granted a motion to strike the plaintiff’s loss of consortium claim and
rendered judgment thereon, and our Supreme Court affirmed the trial court’s
judgment. See also Voris v. Molinaro, supra, 302 Conn. 797–801 (affirming
judgment rendered upon trial court’s granting of defendant’s motion to strike
loss of consortium claim on ground that predicate negligence claim brought
by plaintiff’s spouse had been settled). The plaintiff does not raise a claim
on appeal contesting the defendants’ use of a motion to dismiss as opposed
to a motion to strike, and we decline to address at this time whether a
motion to dismiss is the proper vehicle to challenge a derivative claim
based on the absence of a predicate claim that would fail on subject matter
jurisdictional grounds. We observe, however, that this court and our Supreme
Court have affirmed judgments granting motions to dismiss when, notwith-
standing that the motions to dismiss were procedurally improper, the claims
at issue were otherwise subject to motions to strike and the deficiencies
in the plaintiffs’ complaints could not be cured. See, e.g., Fort Trumbull
Conservancy, LLC v. Alves, 262 Conn. 480, 501–502, 815 A.2d 1188 (2003)
(affirming, in part, judgment of dismissal when trial court’s granting of
motion to dismiss, instead of motion to strike, as to certain claims, although
procedurally improper, constituted harmless error when nothing in record
suggested that plaintiff could amend complaint to state viable claim); McCut-
cheon & Burr, Inc. v. Berman, 218 Conn. 512, 527–28, 590 A.2d 438 (1991)
(same); Mercer v. Rodriquez, 83 Conn. App. 251, 267–68, 849 A.2d 886 (2004)
(relying on holding in Fort Trumbull Conservancy, LLC, to affirm judgment
of dismissal when trial court’s erroneous conclusion that it lacked subject
matter jurisdiction over plaintiff’s action was harmless).
11
‘‘Parties are considered indispensable when they not only have an inter-
est in the controversy, but an interest of such a nature that a final decree
cannot be made without either affecting that interest, or leaving the contro-
versy in such condition that its final [disposition] may be . . . inconsistent
with equity and good conscience. . . . Indispensable parties must be joined
because due process principles make it essential that [such parties] be given
notice and an opportunity to protect [their] interests by making [them] a
party to the [action].’’ (Internal quotation marks omitted.) Bloom v. Miklov-
ich, 111 Conn. App. 323, 333–34, 958 A.2d 1283 (2008).