Last week we delivered what many health care providers and risk managers might call “bad news”, when we told you that Connecticut now recognizes negligence claims for parental loss of consortium. We thought to update our clients on better news concerning a similar type of third party cause of action: bystander emotional distress.
“Bystander” claims – like parental or spousal loss of consortium claims – are claims by third parties that they have suffered harms that flow from the primary plaintiff’s injuries. For example, a mother who alleges severe emotional distress from witnessing her child’s traumatic injury or death resulting from someone’s negligence.
Connecticut courts had previously been divided on whether bystander emotional distress claims are permissible in medical negligence cases. The Connecticut Supreme Court case, Squeo v. Norwalk Hospital Association, 316 Conn. 558 (2015), settled the question by recognizing the tort in the context of medical malpractice. However, the Court set the bar so high that such cases will now survive “only under extremely limited circumstances.”
Squeo v. Norwalk Hospital Association involved the suicide of a psychiatric patient following discharge from Norwalk Hospital. The decedent’s mother and father claimed severe emotional distress after finding their son hanging from a tree in their front yard, thirty-five minutes after discharge. Defendants successfully argued that there was no proof of severe emotional distress since plaintiffs required no prolonged mental health care and had remained steadily employed. On appeal, the Supreme Court found that plaintiffs in theory could claim bystander emotional distress. Nevertheless, the Court held that there was no evidence that the bystanders contemporaneously observed acts of gross malpractice by the health care providers, such that the bystanders’ emotional injuries would have been foreseeable as required by tort law. The plaintiffs also lacked proof of the requisite severity of emotional distress.
Now emotional distress claims for medical malpractice bystanders will be recognized only in cases of gross negligence – in other words, only where the negligence would be obvious to a lay observer, without need for expert medical opinion. The bystander must also allege “injuries that are severe and debilitating, such that they warrant a psychiatric diagnosis or otherwise substantially impair the bystander’s ability to cope with life’s daily routines and demands.”
Whether there will now be an increase in bystander emotional distress claims in medical malpractice cases remains to be seen. The answer to that question will be driven by whether plaintiffs can allege gross negligence in the underlying malpractice action. To read the Squeo opinion, click here.
For more information on medical bystander emotional distress claims or other legal developments that impact the health care profession, please contact Kristin Connors at 203-578-4202 or [email protected], or Mariella LaRosa at 203-575-2654 or [email protected].