Squeo v. Norwalk Hosp. Ass’n, 316 Conn. 558, — A.3d — (Conn. 2015)
Medical malpractice victims are generally entitled to recover compensation for emotional harm they endure: see, e.g., Alexander v. Scheid, 726 N.E.2d 272, 283–84 (Ind. 2000). But what about a victim’s close family member? Take a person who suffers emotional distress from witnessing a medical mistreatment and the consequent injury or demise of her loved one. Should the court obligate the negligent physician or hospital to compensate that person for her emotional harm?
This question has no uniform answer under our medical malpractice laws. Some states allow victims’ families to recover compensation for their emotional harm, while others do not. Three weeks ago, the Connecticut Supreme Court struck a middle ground between these two extremes. Squeo v. Norwalk Hosp. Ass’n, 316 Conn. 558, — A.3d — (Conn. 2015).
The facts of that case were tragic. The plaintiffs’ suicidal son underwent an emergency psychiatric examination and was released from hospital prematurely to hang himself from a tree in his parents’ front yard. As a result, the plaintiffs sustained severe emotional distress, for which they sought to recover compensation from the defendants. The defendants moved to dismiss this claim summarily, contending that Connecticut law does not recognize bystander emotional distress as actionable in medical malpractice cases. Specifically, they argued that the Connecticut Supreme Court’s precedential ruling in Clohessy v. Bachelor, 675 A.2d 852 (Conn. 1996)—which entitles, “under certain limited circumstances … a bystander to an accident [to] bring a claim for negligent infliction of emotional distress against the person whose negligence caused that accident, separate and apart from any claims that the primary victim of the accident might have”—does not apply in medical malpractice cases.
The trial judge granted the defendants’ motion and dismissed the suit. The plaintiffs appealed. Pursuant to the special procedure under Con. Gen. Stat. § 51–199(c) and Practice Book § 65–1, their appeal was transferred to the Connecticut Supreme Court, bypassing the appellate court. The Connecticut Supreme Court affirmed the trial judge’s decision.
The Court framed the issue at bar as a contest between the well-known concerns that counsel against affording a remedy for bystanders’ emotional harms (“the potential for trivial, frivolous or fraudulent claims, … the difficulties involved in tracing the etiology of psychological harms [and the] fears that, if anyone who witnesses a serious accident or injury is permitted to bring his or her own independent claim, courts will be flooded with these derivative claims, and defendants will be subject to liability that is disproportionate to their fault”) and the recognition of emotional traumas as serious, verifiable, and deserving of compensation (for a recent analysis of this contest, see Dov Fox & Alex Stein, Dualism and Doctrine, 90 Indiana Law Journal (forthcoming in 2015), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2435701).
Based on that framing of the issue, the Court formulated its goal as finding “the best way to afford a remedy for a bystander’s genuine emotional distress while placing reasonable limits on the scope of such liability.”
The Court’s effort at finding this way included survey of the “bystander distress” rules that apply in other jurisdictions. Based on this comparative survey, the Court decided that a bystander will recover compensation for emotional harm arising from medical malpractice when:
The defendant’s medical mistake constitutes gross negligence;
The primary victim of that mistake is the bystander’s loved one (a spouse or close family member);
The primary victim dies or sustains serious physical injury;
The bystander’s emotional harm is “both severe and debilitating, such that [it] warrant[s] a psychiatric diagnosis or otherwise substantially impair[s] the bystander’s ability to cope with life’s daily routines and demands.”
The bystander suffers that harm “as a direct result of contemporaneously observing gross professional negligence such that the bystander is aware, at the time, not only that the defendant’s conduct is improper but also that it will likely result in the death of or serious injury to the primary victim.”
After formulating this rule, the Court went on to examine the plaintiff’s evidence to find out that it meets all prerequisites for recovery except that of “severe and debilitating” emotional harm. This finding doomed the plaintiffs’ suit.
The Court explained that:
“We need not speculate, however, as to what shock and distress the plaintiffs may have experienced upon witnessing Stephen’s hanging. Even if we assume that their experience was deeply disturbing, and we have no reason to doubt that it was, that alone is not sufficient to satisfy the legal standard that we have articulated today. Just as few persons travel through life alone, … few of us complete the journey without ever suffering the loss of a parent, child, sibling or partner. The DSM–5, in defining a mental disorder, emphasizes that an “expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, is not a mental disorder.” (citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 20 (5th ed., 2013)).
The new rule makes it extremely difficult for families of medical malpractice victims to obtain compensation for their emotional harm. Proving “gross negligence” of a hospital or medical professional is difficult in and of itself. Establishing the presence of “severe and debilitating” emotional harm that exceeds an “expectable or culturally approved response to a common stressor or loss” is even harder. Demonstrating that this harm directly resulted from “observing gross professional negligence” is well nigh impossible. In the Court’s own words, its new rule makes viable only “the remote specter of bystander emotional distress claims.”
This rule strikes me as deeply problematic. As an initial matter, it is utterly inconsequential for the vast majority of medical-malpractice victims’ families, whose emotional distress is real, severe and verifiable, but is also “expectable” or “culturally approved.” This denial of redress runs afoul of the compensation principle of the law of torts and is also discriminatory. The rule also does not improve medical professionals’ incentive to avoid malpractice (this incentive is determined, as before, by the professionals’ liability for the primary victim’s injury or death, on top of reputational penalties). Worse yet, the new rule incentivizes doctors and hospitals to separate patients from their families at the early stages of the treatment. For example, contrary to the Court’s speculation, hospitals will now do well to banish expectant fathers from the delivery room. From a hospital’s perspective, implementing this policy in order to remove a remote, but still real, threat of liability would be rational because it costs the hospital nothing.
The Court’s new rule constitutes a textbook example of the “middle-ground fallacy”: an idea that making a decision situated between two extremes is always better than preferring one of those extremes to another. The question with which I began my discussion has only two potentially good answers: YES or NO.