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EMMETT ESCOBAR-SANTANA ET AL. v.
STATE OF CONNECTICUT
(SC 20772)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Ecker and Alexander, Js.
Syllabus
Pursuant to statute (§ 4-160 (f)), the state’s sovereign immunity is waived
with respect to qualified medical malpractice actions, and such actions
may proceed against the state without the need for prior authorization
from the Claims Commissioner, but ‘‘[a]ny such action shall be limited
to medical malpractice claims only . . . .’’
Pursuant further to statute (§ 52-190a (a)), in any ‘‘civil action . . . to
recover damages resulting from personal injury . . . in which it is
alleged that such injury . . . resulted from the negligence of a health
care provider,’’ a plaintiff must ‘‘obtain a written . . . opinion of a
similar health care provider . . . that there appears to be evidence of
medical negligence . . . .’’
The plaintiffs, C and her minor child, E, sought to recover damages for the
alleged medical malpractice of the defendant, the state of Connecticut,
through its servants, agents, and employees, that occurred prior to and
during the birth of E. C was admitted to a state hospital for an induction
of labor. During labor, it was determined that E was malpositioned and
that a vaginal delivery would pose risks. C was then counseled on
possible delivery options, including a manual rotation of E’s head to
allow for the potential for a vaginal delivery. C agreed to the manual
rotation, which was unsuccessful. At that point, the delivery plan was
changed to a cesarean section. The cesarean section ultimately took an
extended period of time, and E suffered permanent injuries in the pro-
cess. In the first count of their complaint, the plaintiffs sought to recover
for E’s physical injuries. In the second count of their complaint, the
plaintiffs incorporated by reference most of the allegations set forth in
the first count, including all of the various ways in which the state failed
to exercise reasonable care and the resulting injuries to E. The plaintiffs
also alleged in the second count that C had endured a painful delivery and
suffered severe and ongoing psychological, physiological, and emotional
distress. The plaintiffs further alleged in the second count that the state
knew or should have known that its conduct involved an unreasonable
risk of causing emotional distress and that the distress might result in
illness or bodily harm. The plaintiffs attached to their complaint, pursu-
ant to § 52-190a (a), a certificate of good faith and a copy of an expert
opinion letter from a similar health care provider. The expert opined
in that letter, to a reasonable degree of medical certainty, that the state
departed from the applicable standard of care in that it, among other
things, failed to inform C regarding the risks of attempting a vaginal
delivery, to counsel C regarding delivery options prior to inducing labor,
and to use the proper technique required to deliver E by cesarean section.
The state filed a motion to dismiss the second count of the plaintiffs’
complaint, contending that that count stated a claim for negligent inflic-
tion of emotional distress or bystander liability, rather than medical
malpractice, and, therefore, did not fall within the statutory waiver of
the state’s sovereign immunity in § 4-160 (f). The trial court denied the
motion, concluding that the second count reasonably could be under-
stood to sound in medical malpractice, and the state appealed. Held:
1. The term ‘‘medical malpractice claims’’ in § 4-160 (f) is broad enough to
encompass a birthing mother’s allegation that she suffered emotional
distress from physical injuries to her child that had been proximately
caused by the negligence of health care providers during the birthing
process:
Insofar as neither § 4-160 (f) nor other statutes specifically defined the
term ‘‘medical malpractice,’’ this court looked to the legislative history
of § 4-160 (f) and to other statutes to construe that term, and determined
that the universe of medical malpractice actions that fall within § 4-160
(f) is coextensive with those actions subject to the requirement of § 52-
190a (a) that an opinion letter from a similar health care provider be
filed with the complaint.
This court also determined that, in light of the use of the term ‘‘personal
injury’’ in § 52-190a (a) and the legislature’s definition of ‘‘personal injury’’
elsewhere in the General Statutes as encompassing emotional distress,
the legislature did not categorically preclude medical malpractice claims
for purely emotional damages.
This court acknowledged a growing trend in the common law of permit-
ting liability for purely emotional distress under circumstances in which
the defendant’s alleged negligence has placed the plaintiff in danger of
immediate bodily harm or has occurred in the course of specified catego-
ries of activities, undertakings or relationships in which negligent con-
duct is especially likely to cause serious emotional harm, such as when
a physician negligently causes the loss of a fetus.
Moreover, this court recognized that a number of other state courts and
Connecticut Superior Court judges have concluded, under their common-
law authority, that a birthing mother may recover damages for the purely
emotional distress she experiences as a result of medical malpractice
resulting in the physical injury to or death of her fetus or infant during
the labor and delivery process.
Consistent with this trend, this court concluded that, when a fetus or
infant suffers physical injuries as a result of medical malpractice during
the labor and delivery process, the birthing mother is a joint victim of
the malpractice and can recover for emotional distress arising from her
traumatic experiences during and immediately following that process,
and the mother’s recovery is not limited to damages arising from her
own physical injuries.
Accordingly, C was not precluded from asserting a medical malpractice
claim against the state for damages based on purely emotional distress.
2. In light of the plaintiffs’ allegations in the second count of the complaint
and consistent with the obligation to construe pleadings in the light
most favorable to the plaintiffs, this court concluded that the second
count could be read to allege a medical malpractice claim on behalf of
C, and, accordingly, the trial court properly denied the state’s motion
to dismiss that count of the complaint:
Although claims for negligent infliction of emotional distress and
bystander emotional distress, even in the health care context, are causes
of action distinct from medical malpractice, and the waiver of sovereign
immunity in § 4-160 (f) does not extend to such claims, to the extent
that certain portions of the second count of the complaint could have
been read to allege such causes of action exclusively, the elimination
of those portions of the complaint could have been accomplished by a
request to revise.
To ascertain whether a claim qualifies as a medical malpractice claim,
multiple factors are considered, including whether the defendant is being
sued in his or her capacity as a medical professional, whether the alleged
negligence was of a specified medical nature that arose out of the medical
professional-patient relationship, whether the alleged negligence was
substantially related to medical diagnosis or treatment, and whether the
alleged conduct involved the exercise of medical judgment.
In the present case, the second count of the complaint incorporated
by reference numerous allegations set forth in the first count, which
undisputedly asserted a medical malpractice claim, all of the allegations
of negligence arose out of the relationship between C, the patient, and
her physicians and health care providers, who were employees or agents
of the state, and the allegations involved the alleged breach of the stan-
dard of care by hospital staff while they were operating in their profes-
sional medical capacities.
Moreover, the second count of the complaint apparently was brought
pursuant to § 4-160, the plaintiffs attached to the complaint, in accor-
dance with § 52-190a (a), a certificate indicating that there were grounds
for a good faith belief that there had been negligence in the care and
treatment of C and included a copy of a similar health care provider’s
letter addressing the issue of whether the standard of care was breached
in the prenatal and intrapartum care of C, and expert testimony likely
will be required to establish the state’s liability under that count of
the complaint.
(One justice concurring separately)
Argued February 22—officially released August 22, 2023
Procedural History
Action seeking damages for the defendant’s alleged
medical malpractice, brought to the Superior Court in
the judicial district of Hartford, where the court, Sicil-
ian, J., denied the defendant’s motion to dismiss, from
which the defendant appealed. Affirmed.
Michael G. Rigg, for the appellant (defendant).
Alinor C. Sterling, with whom were Kathleen Nastri
and, on the brief, Sarah Steinfeld, for the appellees
(plaintiffs).
Opinion
MULLINS, J. General Statutes § 4-160 (f)1 waives the
state’s sovereign immunity with respect to qualified
medical malpractice actions and allows such actions
to proceed against the state without the need for prior
authorization from the Claims Commissioner. The stat-
ute also expressly provides that ‘‘[a]ny such action shall
be limited to medical malpractice claims only . . . .’’
General Statutes § 4-160 (f). The primary question pre-
sented by this interlocutory appeal is whether the statu-
tory phrase ‘‘medical malpractice claims’’ is broad
enough to encompass a mother’s allegation that she
suffered emotional distress damages from physical
injuries to her child that were proximately caused by
the negligence of health care professionals during the
birthing process. We hold that claims alleging such dam-
ages can qualify as medical malpractice claims for pur-
poses of § 4-160 (f). Accordingly, we conclude that the
trial court properly denied the motion of the defendant,
the state of Connecticut, to dismiss the second count of
the complaint of the plaintiffs, Celine Escobar-Santana
(Escobar-Santana) and her son, Emmett Escobar-San-
tana (Emmett),2 because the plaintiffs alleged a valid
medical malpractice claim in that count.
I
The complaint and a copy of the expert opinion letter
attached thereto alleged the following facts. The state
operates the University of Connecticut Health Center/
John Dempsey Hospital in Farmington, which provides
prenatal care and labor and delivery services through
the UConn Health Women’s Center (UConn). Between
September 1, 2019, and March 25, 2020, UConn under-
took the care and treatment of Escobar-Santana for
pregnancy, labor, and delivery.
During a March 3, 2020 visit to a walk-in clinic, Esco-
bar-Santana was diagnosed with elevated blood pres-
sure, influenza, and proteinuria (the presence of
abnormally high levels of protein in the urine). On
March 17, during a routine prenatal visit, sonography
revealed that the estimated fetal weight was above the
ninetieth percentile and the abdominal circumference
was above the ninety-fifth percentile. On March 23,
Escobar-Santana complained of bilateral leg swelling
and continued elevated blood pressure. She was admit-
ted at that time for an induction of labor.
On March 25, 2020, following two days of treatment
with oxytocin but relatively minimal progress in her
labor, Escobar-Santana developed a fever. By 7:20 p.m.,
her temperature had risen to 101.8 degrees Fahrenheit.
At 8:30 p.m., she began pushing.
At 9:04 p.m., Kristyn Esteves, an obstetrical resident
at UConn, conducted a manual exam and, on the basis
of palpation, concluded that the fetus could have been
safe vaginal delivery improbable. Two hours later, at
approximately 11 p.m., David Park, a board-certified
obstetrician at UConn, performed a fetal sonograph and
determined that the fetus was, in fact, malpositioned
in a occiput posterior presentation.3 He counseled Esco-
bar-Santana regarding various possible delivery options,
including manually rotating the fetus’ head so as to
proceed with vaginal delivery. She agreed to try manual
rotation, but the pain was intolerable. Accordingly, due
to maternal exhaustion, the delivery plan was changed
to cesarean section (C-section) for failure to progress.
Because of the length of labor and the fetal positioning,
however, the fetus’ head had become impacted in the
maternal pelvis.
During the delivery by C-section, which commenced
at 11:51 p.m., at least one health care provider placed
a hand into Escobar-Santana’s vagina and applied force
to push up on the fetal head. Whereas a C-section can
normally be accomplished in less than one minute, in
this case, twenty-four minutes were required to extract
the baby. Emmett suffered serious and permanent injur-
ies in the process.
The plaintiffs brought the present action in two
counts. Although the plaintiffs alleged injuries to
Emmett in count one and injuries to Escobar-Santana in
count two, there is substantial overlap, as the plaintiffs
alleged in each count that the state, via UConn and its
servants, agents, and employees, including Park and
Esteves, was negligent in at least seventeen respects
prior to and during the birthing process. Several of
these allegations relate specifically to Emmett, such as
the contentions that physicians ‘‘failed to safely manu-
ally rotate the baby’s head’’ and ‘‘failed to accurately
and timely communicate with staff regarding the disen-
gagement of the fetal head from the pelvis . . . .’’ The
plaintiffs also addressed in each count the state’s failure
to exercise reasonable care specifically with respect to
Escobar-Santana. For example, the plaintiffs alleged
that the state ‘‘failed to adequately and properly care
for . . . Escobar-Santana during labor and delivery,’’
‘‘failed to discuss and offer counsel to . . . Escobar-
Santana regarding delivery options,’’ ‘‘failed to provide
physicians who [possess] the requisite knowledge, skill,
and experience to adequately and properly care for,
treat, diagnose, monitor, and supervise . . . Escobar-
Santana during labor and delivery,’’ and ‘‘failed to pro-
mulgate and/or enforce rules, regulations, standards,
and protocols for the treatment of patients such as . . .
Escobar-Santana.’’ Most of the allegations, however,
encompass the state’s joint care of Escobar-Santana
and Emmett during the birthing process.4
The plaintiffs alleged in count one of their complaint
that the state’s negligence resulted in various severe,
painful, and permanent injuries to Emmett. These
include respiratory distress, facial bruising, trauma to
the soft tissues of the head, multiple intracranial hemor-
rhages and hematomas, multiple skull fractures requir-
ing surgical repair, scarring, head deformity, permanent
brain damage, and other permanent psychological,
physiological, and neurological sequelae.
In count two of their complaint, the plaintiffs alleged
negligence claims on behalf of Escobar-Santana but
incorporated by reference most of the allegations of
count one, including all of the various ways in which
the state failed to exercise reasonable care, as well as
the resulting injuries to Emmett. The plaintiffs then
further alleged that Escobar-Santana endured a ‘‘trau-
matic, terrifying and painful’’ delivery and suffered
severe and ongoing psychological, physiological, and
emotional distress. These conditions, the plaintiffs
alleged, are painful, serious, and permanent in their
nature and effects and have impaired Escobar-Santana’s
ability to carry on and enjoy life’s activities. The plain-
tiffs further contended that the state and its employees
‘‘knew or should have known that their conduct
involved an unreasonable risk of causing emotional dis-
tress and that the distress might result in illness or
bodily harm.’’
The plaintiffs attached to the complaint, per the
requirements of General Statutes § 52-190a (a), a certifi-
cate of good faith and a copy of an expert opinion letter
from a similar health care provider, namely, a board-
certified physician who practices, publishes, teaches,
and consults in the fields of obstetrics, gynecology,
and maternal-fetal medicine. This expert opined, to a
reasonable degree of medical certainty, that UConn,
Park, and Esteves departed from the applicable standard
of care in various respects. Most notably for present
purposes, because Escobar-Santana was predisposed
to obstructed labor and shoulder dystocia (a complica-
tion of vaginal delivery in which the baby’s shoulder
gets caught above the mother’s pubic bone) as a result
of her short stature, her obesity, and the disproportion-
ate overgrowth of her fetus, her providers should have
been knowledgeable about and informed her regarding
the risks to her and the fetus of attempting vaginal delivery.
In addition, the plaintiffs’ expert opined that Emmett’s
injuries suggest the use of an inappropriate technique
to elevate the fetal head: the head should have been
flexed by broadly applied pressure on the fetal cranium
during elevation. The expert concluded that UConn,
Park, and Esteves departed from the applicable stan-
dard of care in that they ‘‘(1) failed to recognize the
significance of the maternal-fetal medicine physician’s
prenatal report that documented marked fetal over-
growth, (2) failed to counsel [Escobar-Santana] regard-
ing delivery options prior to labor induction, and (3)
failed to use or instruct the use of proper technique
required to deliver the baby during delivery by [C-sec-
tion].’’ The expert opined that this negligence was a
proximate cause of Emmett’s injuries.5
The state filed a motion to dismiss count two of the
complaint, contending that the count states a claim for
negligent infliction of emotional distress or bystander
liability, rather than medical malpractice, and, there-
fore, does not fall within the statutory waiver of the
state’s sovereign immunity in § 4-160 (f). The trial court
denied the motion, concluding that, when the complaint
is construed in the light most favorable to the plaintiffs,
and every reasonable presumption is made in favor of
jurisdiction, count two reasonably can be understood
to sound in medical malpractice. The state subsequently
filed a motion to reargue and to reconsider, which the
trial court granted, but, after reargument and reconsid-
eration, the court upheld its prior decision.6 This
appeal followed.7
II
On appeal, the state renews its claim that count two
of the complaint sounds in negligent infliction of emo-
tional distress or bystander liability, rather than medical
malpractice, and, therefore, is barred by the state’s sov-
ereign immunity because it was neither authorized by
the Claims Commissioner, nor does it fall within the
ambit of § 4-160 (f), which provides for a waiver of
sovereign immunity without the approval of the Claims
Commissioner. The state further contends that, even if
the plaintiffs did allege a medical malpractice claim
in count two, insofar as count two incorporates by
reference the allegations of count one, which relate
solely to Emmett, it does not state a colorable medical
malpractice claim as to Escobar-Santana specifically.
This is true, the state argues, because there is no allega-
tion that Escobar-Santana suffered physical injuries
as a result of the state’s malpractice,8 and she cannot
recover in medical malpractice for purely emotional
distress in the absence of physical harm. We disagree.
Consistent with the modern trend and the rule that
has been adopted by a majority of our sister states and
Superior Court judges who have considered the issue,
we hold that, when a fetus or infant suffers physical
injuries as a result of medical malpractice during the
labor and delivery process, the birthing mother is a joint
victim of the malpractice and can recover for emotional
distress arising therefrom. We further conclude that
count two of the complaint properly stated a cause of
action for medical malpractice.
A
We begin with the standard of review. ‘‘We have long
held that because [a] determination regarding a trial
court’s subject matter jurisdiction is a question of law,
our review is plenary.’’ (Internal quotation marks omit-
ted.) Levin v. State, 329 Conn. 701, 706, 189 A.3d 572
(2018). Specifically, because the scope of the waiver
of sovereign immunity for medical malpractice claims
contained in § 4-160 (f) presents a question of statutory
interpretation, we exercise plenary review. See, e.g.,
Day v. Seblatnigg, 341 Conn. 815, 826, 268 A.3d 595
(2022); see also, e.g., 2 Restatement (Third), Torts, Lia-
bility for Physical and Emotional Harm § 47, comment
(g), p. 179 (2012) (determination of which relationships
will support liability for purely emotional harm is matter
of law for court).
The following well established principles also guide
our analysis. ‘‘[W]hen the doctrine of sovereign immu-
nity is applicable, the state must consent to be sued in
order for a claimant to pursue any monetary claim
against the state.’’ (Internal quotation marks omitted.)
Levin v. State, supra, 329 Conn. 709. The Claims Com-
missioner may waive sovereign immunity and consent
to suit pursuant to § 4-160 (a). Id. Other statutory waiv-
ers are also available, but ‘‘[a]ny statutory waiver of
immunity must be narrowly construed . . . and its
scope must be confined strictly to the extent the statute
provides.’’ (Internal quotation marks omitted.) Id. In
the absence of prior authorization by the Claims Com-
missioner, or some other statutory waiver, the Superior
Court has no jurisdiction to hear any monetary claim
against the state. Id.
B
Because the scope of the waiver afforded by § 4-160
(f) presents a question of statutory interpretation, our
review begins with the language of the statute. See
General Statutes § 1-2z. Section 4-160 (f) provides in
relevant part: ‘‘In any claim alleging malpractice against
the state, a state hospital or against a physician, sur-
geon, dentist, podiatrist, chiropractor or other licensed
health care provider employed by the state, the attorney
or pro se 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 certificate
is submitted, permission to sue the state shall be
deemed granted by the Claims Commissioner . . . . In
lieu of filing a notice of claim . . . a claimant may
commence a medical malpractice action against the
state prior to the expiration of the limitation period set
forth in section 4-148 and authorization for such action
against the state shall be deemed granted. Any such
action shall be limited to medical malpractice claims
only and any such action shall be deemed a suit other-
wise authorized by law in accordance with subsection
(a) of section 4-142 . . . .’’ (Emphasis added.)
One thing is clear. The waiver of sovereign immunity
afforded by subsection (f) of § 4-160 extends no further
than medical malpractice actions. Until 2019, the provi-
sion—then codified at General Statutes (Rev. to 2019)
§ 4-160 (b)—referenced malpractice actions only in the
first clause: ‘‘In any claim alleging malpractice against
the state . . . .’’ Prior to that time, malpractice actions
against the state had to go through the Claims Commis-
sioner, but approval was automatic as long as the plain-
tiffs satisfied the requirements of § 52-190a. In 2019, the
legislature amended the statute to provide an alterna-
tive path by which plaintiffs could bypass the Claims
Commissioner altogether, and it added the language
providing that ‘‘[a]ny such action shall be limited to
medical malpractice claims only . . . .’’ Public Acts
2019, No. 19-182, § 4 (P.A. 19-182).
Neither this statute, however, nor any other provision
of the General Statutes defines the terms ‘‘medical mal-
practice,’’ ‘‘medical malpractice action,’’ or ‘‘medical
malpractice claim.’’ The precise question presented by
this appeal is not addressed on the face of the statute.
Dictionaries also are of little help in identifying
whether and when ‘‘medical malpractice’’ can encom-
pass claims for emotional distress in the absence of
physical injury. Black’s Law Dictionary, for example,
defines ‘‘medical malpractice’’ as ‘‘[a] doctor’s failure
to exercise the degree of care and skill that a physician
or surgeon of the same medical specialty would use
under similar circumstances.’’ Black’s Law Dictionary
(11th Ed. 2019) p. 1148. It adds that, as in any other
negligence action, the medical malpractice plaintiff
must establish proximate cause and damages, as well
as breach of the professional duty of care. See id. But
this dictionary definition does not speak to whether,
and under what circumstances, emotional distress dam-
ages in the absence of physical injury are available in
such actions.
To ascertain the legislature’s intent with respect to
that issue, we look, first, to other, related sections of
the General Statutes; see General Statutes § 1-2z; and,
second, to our common law of negligence, which the
legislature is presumed not to have abrogated without
a clear statement to that effect. See, e.g., Pacific Ins.
Co., Ltd. v. Champion Steel, LLC, 323 Conn. 254, 269–70,
146 A.3d 975 (2016). We consider each in turn.9
1
Although the term ‘‘medical malpractice’’ is not
defined in § 4-160 (f), other sections of the General
Statutes do help to illuminate the intent of the legisla-
ture. Section 4-160 (f) was enacted to address and to
help relieve the yearslong case backlog at the Office of
the Claims Commissioner. See, e.g., Matakaetis v. State,
Docket No. HHD-CV-XX-XXXXXXX-S, 2021 WL 6334962,
*4–6 (Conn. Super. December 20, 2021). In 1998, the
legislature eliminated the need for the Claims Commis-
sioner to review medical malpractice claims against the
state by providing for automatic approval of such claims
upon the submission of a certificate of good faith pursu-
ant to General Statutes (Rev. to 1997) § 52-190a (a). See
Public Acts 1998, No. 98-76, § 1; see also, e.g., Mata-
kaetis v. State, supra, *4. To show the existence of such
good faith, plaintiffs had to obtain a written opinion of
a ‘‘similar health care provider . . . .’’ General Statutes
(Rev. to 1997) § 52-190a (a). In 2019, the legislature
went further, permitting plaintiffs to forgo the Claims
Commissioner’s approval entirely by filing a timely med-
ical malpractice action in the Superior Court. See P.A.
19-182, § 4; see also, e.g., Matakaetis v. State, supra,
*4–5. Of course, filing a medical malpractice action in
the Superior Court directly still requires that the plain-
tiffs submit a certificate of good faith. See General Stat-
utes § 52-190a (a). It seems clear, then, that the
legislature, in enacting § 4-160 (f), substituted one gate-
keeper for another. There is no need for the Claims
Commissioner, who has no particular expertise in these
matters, to expend scarce resources ascertaining
whether a plaintiff has a colorable medical malpractice
claim when a good faith certificate and expert opinion
letter demonstrate as much, or, if challenged, will be
subject to the scrutiny of the Superior Court.10 This
suggests that the universe of medical malpractice
actions subject to § 4-160 (f) is coextensive with those
actions subject to § 52-190a.11
Section 52-190a (a) applies to any ‘‘civil action or
apportionment complaint . . . to recover damages
resulting from personal injury or wrongful death . . .
whether in tort or in contract, in which it is alleged
that such injury or death resulted from the negligence
of a health care provider . . . .’’ It requires, among
other things, that ‘‘the claimant . . . obtain a written
and signed opinion of a similar health care provider,
as defined in section 52-184c, which similar health care
provider shall be selected pursuant to the provisions
of said section, that there appears to be evidence of
medical negligence and includes a detailed basis for
the formation of such opinion.’’12 General Statutes § 52-
190a (a). In Dias v. Grady, 292 Conn. 350, 972 A.2d 715
(2009), we concluded that the phrase ‘‘medical negli-
gence’’ in that provision is susceptible to more than
one reasonable interpretation, and, having reviewed the
legislative history, we treated that phrase as synony-
mous with ‘‘medical malpractice,’’ meaning ‘‘breach of
the standard of care . . . .’’ Id., 356–59.
Section 52-190a (a) expressly addresses the issue of
damages, requiring a certificate of good faith in order
to bring an action ‘‘to recover damages resulting from
personal injury or wrongful death . . . .’’ Although the
term ‘‘personal injury’’ also is not defined for purposes
of this section, the legislature has defined that phrase
elsewhere in the General Statutes. For example, for
purposes of chapter 968 of the General Statutes, which
provides services for crime victims, ‘‘ ‘[p]ersonal injury’
means . . . actual bodily harm or emotional harm
. . . .’’ (Emphasis added.) General Statutes § 54-201 (2).
Other statutes also suggest that, under at least some
circumstances, ‘‘personal injury’’ can encompass purely
emotional distress. See, e.g., General Statutes § 52-231b
(‘‘[i]n any action to recover damages for personal injury
to a minor, including emotional distress, caused by sex-
ual abuse, sexual exploitation or sexual assault’’); Gen-
eral Statutes § 52-577d (‘‘[n]otwithstanding the
provisions of section 52-577, no action to recover dam-
ages for personal injury to a person under twenty-one
years of age, including emotional distress, caused by
sexual abuse, sexual exploitation or sexual assault may
be brought’’); General Statutes § 54-211 (d) (1) (C)
(crime victim may receive compensation for personal
injury ‘‘in cases of emotional harm only’’). At the very
least, then, the legislature has not categorically pre-
cluded medical malpractice claims for purely emotional
damages.13 Nevertheless, our review of related statutes
does not answer the question of whether the legislature
intended to allow medical malpractice claims alleging
solely emotional distress damages to proceed under
§ 4-160 (f).
2
Because the legislature has not directly addressed
the question of whether and when a claim for purely
emotional damages can qualify as a medical malpractice
claim for purposes of § 4-160 (f), we look for additional
guidance to our state’s common law of tort. See, e.g.,
Dias v. Grady, supra, 292 Conn. 356 (when text of
statute is ambiguous, we may look for interpretive guid-
ance to common-law principles governing same general
subject matter); J. Lagnese et al., Connecticut Medical
Malpractice: A Manual of Practice and Procedure (5th
Ed. 2019) § 1-3, p. 3 (legislature largely codified com-
mon law of medical malpractice when it defined ‘‘stan-
dard of care’’).
As we explained in Squeo v. Norwalk Hospital Assn.,
316 Conn. 558, 113 A.3d 932 (2015), the common law
traditionally was loathe to afford recovery for purely
emotional injuries. See id., 564. This reflected concerns
about ‘‘the potential for trivial, frivolous or fraudulent
claims,’’ as well as ‘‘the difficulties involved in tracing
the etiology of psychological harms . . . .’’ Id.; see also,
e.g., 2 Restatement (Third), supra, p. 132 (scope note
accompanying chapter 8, §§ 45 through 48).
This hesitation has waned, however, as our under-
standing of emotional trauma has evolved. See, e.g.,
Squeo v. Norwalk Hospital Assn., supra, 316 Conn. 565;
see also, e.g., LaBieniec v. Baker, 11 Conn. App. 199,
206, 526 A.2d 1341 (1987) (‘‘medical science has unques-
tionably become sophisticated enough to provide reli-
able and accurate evidence on the causes of mental
trauma’’ (emphasis omitted; internal quotation marks
omitted)); 2 Restatement (Third), supra, pp. 132–33 (dis-
cussing modern trend and courts’ increasing openness
to allowing recovery for purely emotional harm when
traditional reasons given for restricting it do not apply);
J. Lagnese et al., supra, § 3-2:3, p. 31 (‘‘[r]ecovery for
unintentionally caused emotional distress does not
depend on proof of physical injury or risk of physical
harm’’).
Accordingly, § 47 of the Restatement (Third) of Torts,
Liability for Physical and Emotional Harm, recognizes
that courts have begun to permit the imposition of liabil-
ity for purely emotional distress when, among other
things, the defendant’s alleged negligence (1) has placed
the plaintiff in danger of immediate bodily harm (§ 47
(a)), or (2) ‘‘occurs in the course of specified categories
of activities, undertakings, or relationships in which
negligent conduct is especially likely to cause serious
emotional harm’’ (§ 47 (b)). 2 Restatement (Third),
supra, § 47, p. 175. Among the specific examples given
of the types of special relationship injuries envisioned
by § 47 (b) are medical malpractice cases in which ‘‘a
physician negligently diagnoses a patient with a dreaded
or serious disease; a physician negligently causes the
loss of a fetus; [or] a hospital loses a newborn infant
. . . .’’ Id., § 47, comment (f), pp. 178–79.
Consistent with this modern trend, this court has
recognized a cause of action for bystander emotional
distress arising out of medical malpractice. See, e.g.,
Squeo v. Norwalk Hospital Assn., supra, 316 Conn. 568;
see also, e.g., 2 Restatement (Third), supra, § 48, pp.
199–200. In addition, the Appellate Court has left open
the possibility that a medical malpractice cause of
action will lie when a patient suffers purely emotional
distress after having been misdiagnosed with a serious
illness. See, e.g., Esposito v. Schiff, 38 Conn. App. 726,
729–30, 662 A.2d 1337 (1995); LaBieniec v. Baker, supra,
11 Conn. App. 200–201, 205–206; see also, e.g., Miles v.
Barajas, Docket No. NNH-CV-XX-XXXXXXX-S, 2015 WL
6237934, *3–4 (Conn. Super. September 22, 2015) (rely-
ing on LaBieniec and allowing medical malpractice
action to proceed when plaintiff claimed purely emo-
tional injuries arising from physician’s allegedly negli-
gent delay in diagnosing her breast cancer).
Neither this court nor the Appellate Court has spoken
to the specific issue of whether a birthing mother can
recover for purely emotional injuries suffered as a result
of medical negligence causing injury to the fetus or
infant during the labor and delivery process. Consistent
with the modern trend, however, a number of our sister
state courts have concluded, under their common-law
authority, that a birthing mother may recover for the
purely emotional distress she experiences as a result
of medical malpractice resulting in physical injury to
or death of her fetus or infant during the labor and
delivery process. See, e.g., Burgess v. Superior Court,
2 Cal. 4th 1064, 1076, 831 P.2d 1197, 9 Cal. Rptr. 2d 615
(1992) (‘‘during pregnancy and delivery it is axiomatic
that any treatment for [the fetus] necessarily implicated
[the mother’s] participation [because] access to [the
fetus] could . . . be accomplished [only] with [the
mother’s] consent and with impact to her body’’); Carey
v. Lovett, 132 N.J. 44, 59, 622 A.2d 1279 (1993) (‘‘[T]he
physical and emotional ties between mother and fetus
so unite them that a physician should anticipate that
any malpractice that adversely affects the fetus will
cause emotional distress to the mother. . . . In effect,
the connection between a mother and her baby so
merges direct and indirect claims that the distinction
disappears.’’ (Internal quotation marks omitted.));
Modaber v. Kelley, 232 Va. 60, 66, 348 S.E.2d 233 (1986)
(‘‘injury to an unborn child constitutes injury to the
mother and . . . she may recover for such physical
injury and mental suffering associated with a still-
birth’’); see also, e.g., D. Dobbs, ‘‘Undertakings and Spe-
cial Relationships in Claims for Negligent Infliction of
Emotional Distress,’’ 50 Ariz. L. Rev. 49, 55 (2008)
(‘‘[O]bviously, an obstetrician undertakes to care for
both [the] mother and [the] unborn child. His negligent
delivery of the child that . . . harms the child violates
his duty to the child and also to the mother. Conse-
quently, he is liable to the mother for her emotional
distress . . . .’’). But see, e.g., Prado v. Catholic Medi-
cal Center of Brooklyn & Queens, Inc., 145 App. Div.
2d 614, 615, 536 N.Y.S.2d 474 (1988) (‘‘[in the absence of]
independent physical injuries [beyond those naturally
associated with the childbirth process], a mother may
not recover for emotional and psychic harm as a result
of a stillbirth’’).
Most of these courts have adopted this rule on the
theory that the mother and fetus are physically and
emotionally inseparable prior to birth, and, therefore,
a physical injury to the child during the birthing process
is, in effect, a bodily injury to the mother as well. The
mother and the child are, in effect, joint victims of the
medical malpractice. Courts allowing recovery of such
damages also have recognized the unique expectancies
that attend the birthing process. See, e.g., Burgess v.
Superior Court, supra, 2 Cal. 4th 1076 (‘‘[t]he birth of
a child is a miraculous occasion which is almost always
eagerly anticipated and which is invested with hopes,
dreams, anxiety, and fears’’).
Some courts also have adopted the rule on public
policy grounds. See, e.g., Tanner v. Hartog, 696 So. 2d
705, 708 (Fla. 1997) (‘‘it is difficult to justify the outright
denial of a claim for the mental pain and anguish which
is so likely to be experienced . . . as a result of the
birth of a stillborn child caused by the negligence of
another’’). Still others have permitted the mother to
recover under the so-called ‘‘impact’’ or ‘‘zone of danger’’
rules. See, e.g., Vaillancourt v. Medical Center Hospital
of Vermont, Inc., 139 Vt. 138, 143, 425 A.2d 92 (1980).
In any event, we are persuaded that a majority of the
state courts to have considered the question have con-
cluded that emotional distress damages resulting from
an injury to a fetus or infant during the birthing process
are recoverable by the mother.14 See, e.g., Smith v.
Borello, 370 Md. 227, 241, 246, 804 A.2d 1151 (2002);
Fehely v. Senders, 170 Or. 457, 460, 135 P.2d 283 (1943).
This is also the prevailing view among the judges of
the Superior Court. As one court explained, ‘‘[n]umer-
ous Superior Court [judges] have considered whether
a mother may recover emotional distress damages for
the injury or death of a child resulting from medical
malpractice in the prenatal and delivery periods. . . .
The majority of the Superior Court [judges who] have
considered the issue have ruled that a mother is not a
bystander [with respect to matters] that are incident to
prenatal care and the delivery of her child. . . . The
very term delivery presupposes that the mother is an
active participant in the birthing of a child. To hold
otherwise would be to reject the entire human experi-
ence, everywhere and at all times. . . . [W]hen a child
is injured due to negligent obstetrical care, the mother
and child are joint victims of malpractice, not separable
entities.’’ (Internal quotation marks omitted.) Leoma v.
OB-GYN Services, P.C., Docket No. KNL-CV-11-
6011571-S, 2012 WL 4040464, *2 (Conn. Super. August
28, 2012); see also, e.g., Gambacorta v. Williams,
Docket No. HHD-CV-XX-XXXXXXX-S, 2021 WL 402053, *3
(Conn. Super. January 8, 2021) (‘‘the majority of the
judges of the Superior Court who have considered the
. . . issue [have] concluded that obstetricians owe a
duty to the mother to exercise reasonable care in the
treatment of her child and are answerable in damages
for the emotional distress suffered by the mother there-
from’’ (emphasis omitted)); J. Lagnese et al., supra, § 3-
2:3.1, p. 34 (observing that this is probably majority
position in Connecticut).15
In Gambacorta, for example, the court, following § 47
(b) of the Restatement (Third) of Torts, Liability for
Physical and Emotional Harm, adopted what it took to
be the majority view. See Gambacorta v. Williams,
supra, 2021 WL 402053, *3, *5. The court concluded that
holding a physician liable for such eminently foresee-
able damages is consonant with the ‘‘preexisting physi-
cian-patient relationship between both mother and
child’’; id., *5; comports with the normal expectations
of the mother; id.; and, from a public policy standpoint,
does not unduly ‘‘enlarge the common law [by extending]
the duty of health care providers to nonpatients.’’ Id., *3.
3
We cannot know whether the legislature had this
body of common law and these modern trends in mind
when it enacted § 4-160 (f). In the absence of any clear
legislative statement to the contrary, however, it
remains the proper role of this court to define the scope
and nature of a medical malpractice action. See, e.g.,
In re Ava W., 336 Conn. 545, 579, 248 A.3d 675 (2020)
(‘‘[Although] the legislature’s authority to abrogate the
common law is undeniable, we will not lightly impute
such an intent to the legislature. . . . In determining
whether . . . a statute abrogates or modifies a [com-
mon-law] rule the construction must be strict, and the
operation of a statute in derogation of the common law
is to be limited to matters clearly brought within its scope.’’
(Internal quotation marks omitted.)); Greenwald v. Van
Handel, 311 Conn. 370, 383, 88 A.3d 467 (2014) (‘‘although
procedurally circumscribed by statute, medical malprac-
tice claims are [still] brought pursuant to the common
law’’); Neuhaus v. DeCholnoky, 280 Conn. 190, 221, 905
A.2d 1135 (2006) (explaining that, notwithstanding restric-
tions on medical malpractice actions adopted during
tort reform process, ‘‘our courts routinely examine
whether to extend a duty to a particular defendant . . .
in light of the policy considerations at play in the case’’).
Accordingly, we agree with the majority position and
hold, under our common-law authority, that a birthing
mother may recover for emotional distress arising from
her traumatic experiences during and immediately fol-
lowing the birthing process, up to and including her
realization of her child’s injuries, when those injuries
are proximately caused by the defendant’s medical mal-
practice while the child was in utero. Insofar as § 4-160
(f) incorporates Connecticut’s common law of tort, we
interpret the term ‘‘medical malpractice claims’’ in
that light.
C
With these principles in mind, we return our attention
to the present case. As we explained in part II B of this
opinion, a birthing mother who alleges that she suffered
emotional distress as a result of medical malpractice
during the labor and delivery process is not limited in
her recovery to damages arising from her own physical
injuries. She also may recover for emotional distress
arising from her awareness of the damage wrought by
the malpractice on the child. To the extent that Escobar-
Santana is claiming purely emotional damages arising
from such injuries, then, she is not precluded from
bringing a medical malpractice claim against the state
on that basis.
The final question is whether count two of the com-
plaint does in fact state a medical malpractice claim
within the terms just described. The state argues that
count two must be dismissed because Escobar-San-
tana’s claim sounds either in negligent infliction of emo-
tional distress or in bystander emotional distress, rather
than medical malpractice. Neither of those causes of
action has the same essential elements as a medical
malpractice claim, the state contends, and, therefore,
they are not encompassed by the legislative waiver of
sovereign immunity for medical malpractice actions in
§ 4-160 (f).
The state is correct that, even in the health care
context, both negligent infliction of emotional distress
and bystander emotional distress are causes of action
distinct from medical malpractice.16 The state also is
correct that the waiver of sovereign immunity in § 4-
160 (f), which is limited to medical malpractice actions,
does not extend to such claims. Insofar as certain para-
graphs of the complaint or portions thereof can be
read to allege such causes of action exclusively, the
elimination of those portions of the complaint could
have been accomplished by a request to revise. See
Practice Book § 10-35; see also footnote 6 of this
opinion.
The state is incorrect, however, that count two of
the complaint cannot also be read to allege a medical
malpractice claim on behalf of Escobar-Santana. ‘‘Under
modern pleading practice, pleadings must be construed
broadly and realistically, rather than narrowly and tech-
nically.’’ (Internal quotation marks omitted.) Williams
v. Housing Authority, 327 Conn. 338, 372, 174 A.3d 137
(2017). Moreover, ‘‘[i]n ruling on a motion to dismiss
for lack of subject matter jurisdiction, the trial court
must consider the allegations of the complaint in their
most favorable light . . . including those facts neces-
sarily implied from the allegations . . . .’’ (Internal
quotation marks omitted.) Giannoni v. Commissioner
of Transportation, 322 Conn. 344, 349, 141 A.3d 784
(2016).
In borderline cases, we have indicated that, to ascer-
tain whether a claim qualifies as a medical malpractice
claim, we ask the following three questions: (1) are the
defendants being ‘‘sued in their capacities as medical
professionals,’’ (2) is the alleged negligence ‘‘of a spe-
cialized medical nature that arises out of the medical
professional-patient relationship,’’ and (3) is the alleged
negligence ‘‘substantially related to medical diagnosis
or treatment’’ and does it ‘‘[involve] the exercise of
medical judgment?’’ (Internal quotation marks omit-
ted.) Doe v. Cochran, 332 Conn. 325, 335, 210 A.3d
469 (2019). In the case of Escobar-Santana’s claim, the
answer to all three questions is clearly yes.
Count two of the complaint incorporates by reference
paragraphs 1 through 13 of count one, which undisput-
edly make out a medical malpractice claim. The con-
tention is that the state, via a state hospital and two of
its physicians, among other professional staff, under-
took to provide pregnancy, labor, and delivery services
for Escobar-Santana after having admitted her as a
patient. All of the allegations of negligence arise out of
that physician-patient relationship. The allegations all
involve the breach of the standard of care by the hospi-
tal staff while operating in their professional medical
capacities: things like misdiagnosing the nature of the
pregnancy, misassessing the risks of labor and delivery,
failing to use proper imaging techniques and to consider
input from other medical specialists, failing to recom-
mend the correct delivery method, failing to use proper
delivery technique, failing to properly care for Escobar-
Santana during labor and delivery, and failing to main-
tain appropriate medical records, staffing, and treat-
ment protocols.
In addition, count two purports to be brought pursu-
ant to § 4-160. The plaintiffs attached to the complaint
a good faith certificate, compliant with § 52-190a (a),
certifying that there are grounds for a good faith belief
that there had been negligence in the care and treatment
of Escobar-Santana. They included a copy of a physi-
cian’s letter addressing the question of ‘‘whether the
standard of care on the part of board-certified obstetri-
cians and obstetrics and gynecology residents was
breached in the prenatal and intrapartum care of . . .
Escobar-Santana . . . .’’ In the letter, the plaintiffs’
expert ultimately concluded that the state breached the
standard of care by, among other things, not informing
Escobar-Santana of the risks associated with vaginal
delivery and counseling her regarding her delivery
options prior to labor induction, as well as failing to
use proper delivery technique. The fact that expert testi-
mony likely will be required to establish the state’s
liability also counsels in favor of construing count two
as one for medical malpractice. See Shortell v. Cava-
nagh, 300 Conn. 383, 388, 393, 15 A.3d 1042 (2011).
In light of these allegations, and consistent with our
obligation to construe the pleadings in the light most
favorable to the plaintiffs, we understand Escobar-San-
tana’s allegation that she suffered a ‘‘traumatic, terrifying
and painful’’ delivery, followed by ‘‘severe psychologi-
cal, physiological and emotional distress,’’ as inextrica-
bly connected to her allegations of medical malpractice.
We thus conclude that the trial court properly denied
the state’s motion to dismiss the second count of the
plaintiffs’ complaint.
The decision of the trial court is affirmed.
In this opinion the other justices concurred.
1
At the time the present action was commenced, § 4-160 (f) was codified
at General Statutes (Rev. to 2021) § 4-160 (b). Subsequently, No. 21-91, § 6,
of the 2021 Public Acts redesignated subsection (b) as subsection (f) and
made certain other changes to the provision that have no bearing on the
merits of this appeal. The provision was also the subject of technical amend-
ments in 2022 and 2023. See Public Acts 2023, No. 23-131, § 10; Public Acts
2022, No. 22-37, § 4. In the interest of simplicity, unless otherwise indicated,
we refer to the current version of the statute.
The text of § 4-160 (f) is set forth in part II B of this opinion.
2
Although Emmett, a minor, appears as the named plaintiff in this case,
the action was actually brought by Escobar-Santana, both individually and
on behalf of Emmett as Emmett’s parent, as the general rule in Connecticut
is that ‘‘minor children may . . . sue [only] by way of a parent or next
friend.’’ Mendillo v. Board of Education, 246 Conn. 456, 460 n.3, 717 A.2d
1177 (1988), overruled in part on other grounds by Campos v. Coleman,
319 Conn. 36, 123 A.3d 854 (2015).
3
In the occiput posterior position, the baby’s head is down but faces the
mother’s front instead of her back, which makes it more difficult to traverse
the pelvis. See generally E. Brunelli et al., ‘‘The Role of the Angle of Progres-
sion in the Prediction of the Outcome of Occiput Posterior Position in the
Second Stage of Labor,’’ 225 Am. J. Obstetrics & Gynecology 81.e1 (2021).
4
In their complaint, the plaintiffs alleged, for example, that the state
‘‘failed to recognize and consider prenatal input from maternal-fetal medicine
specialists,’’ ‘‘failed to recognize that . . . Escobar-Santana’s cervix was
unfavorable for induction,’’ ‘‘failed to recognize and appreciate the need for
early ultrasound imaging to determine the position of the baby during labor,’’
‘‘failed to intervene in a timely manner,’’ ‘‘failed to make safe treatment
choices for delivery,’’ ‘‘failed to perform a timely [C-section],’’ and ‘‘failed
to keep proper and adequate medical records . . . .’’
5
There is no requirement that the expert opine that the negligence was
a proximate cause of Escobar-Santana’s injuries. See Dias v. Grady, 292
Conn. 350, 359–60, 972 A.2d 715 (2009).
6
In the motion to reconsider, the state asked the trial court to dismiss,
at the very least, those portions of count two in which the plaintiffs alleged
causes of action other than medical malpractice. In paragraph 16 of count
two of the complaint, for example, the plaintiffs alleged that ‘‘[t]he . . .
state . . . and its servants, agents, apparent agents and/or employees, knew
or should have known that their conduct involved an unreasonable risk of
causing emotional distress and that the distress might result in illness or
bodily harm.’’ As we explain in footnote 16 of this opinion, that language
states a claim for negligent infliction of emotional distress. In paragraph 17
of count two of the complaint, the plaintiffs also alleged that Escobar-
Santana’s various injuries were reasonable, which she need not establish
to prevail on a medical malpractice claim.
We note that, in their opposition to the state’s motion to dismiss, the
plaintiffs made clear that (1) count two of their complaint sounds in medical
malpractice, rather than bystander liability or negligent infliction of emo-
tional distress, (2) the primary dispute between the parties was whether
Escobar-Santana’s allegations made out a valid medical malpractice claim
predicated on purely emotional damages, and, therefore, (3) the proper
vehicle for the state to assert its challenge was a motion to strike count
two rather than a motion to dismiss. Nonetheless, the state has continued
to characterize the count as something other than a medical malpractice
claim, thereby allowing it to take an interlocutory appeal and delay the
resolution of the case. ‘‘Just because the [s]tate can do something does not
mean that it should.’’ (Emphasis in original.) Hall v. Ramirez, Docket No.
1:18-cv-00218-BLW, 2018 WL 3633916, *3 (D. Idaho July 31, 2018).
7
The state appealed to the Appellate Court, and we transferred the appeal
to this court pursuant to General Statutes § 51-199 (c) and Practice Book
§ 65-1.
8
We note that the plaintiffs alleged that Escobar-Santana endured a painful
childbirth, that the failed vaginal delivery involved hospital staff’s application
of pressure to her vaginal area, and that she has suffered physiological
distress. It seems clear, then, that she is alleging her own independent
physical injuries and associated pain and suffering. The primary question
that we address in this opinion, however, is whether a mother such as
Escobar-Santana also can recover emotional distress damages arising from
injuries to her fetus or infant during the labor and delivery process.
9
Because the statute is ambiguous with respect to the question before
us, we also may look to the legislative history of the statute. See, e.g., Dias
v. Grady, 292 Conn. 350, 356, 972 A.2d 715 (2009); see also General Statutes
§ 1-2z. We note, however, that the parties have not identified, and our review
did not reveal, anything in the legislative history of P.A. 19-182, § 4, that
resolves this question.
10
See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 2019
Sess., p. 3284, remarks of Claims Commissioner Christy Scott (‘‘[b]ecause
the [S]uperior [C]ourt . . . is fully capable of determining whether a claim-
ant has satisfied the criteria of § 52-190a . . . there is no particular purpose
served in requiring such claims to be filed with the Claims Commissioner
and, given the [Claims] Commissioner’s ongoing backlog, there is affirmative
harm [in] requiring that such claims continue to be filed there’’).
11
The legislative history confirms as much. See, e.g., Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 4, 2019 Sess., pp. 3283–84, remarks of
Claims Commissioner Christy Scott; 41 H.R. Proc., Pt. 8, 1998 Sess., pp.
2695–97, remarks of Representative Richard D. Tulisano.
12
General Statutes § 52-184c (a) further defines such actions, providing
in relevant part that, ‘‘[i]n any civil action to recover damages resulting from
personal injury or wrongful death . . . in which it is alleged that such injury
or death resulted from the negligence of a health care provider . . . the
claimant shall have the burden of proving by the preponderance of the
evidence that the alleged actions of the health care provider represented a
breach of the prevailing professional standard of care for that health care
provider. . . .’’
13
The state relies on Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059
(1988), and Montinieri v. Southern New England Telephone Co., 175 Conn.
337, 398 A.2d 1180 (1978), for the proposition that a medical malpractice
claim for solely emotional damages will not lie. Neither case supports that
broad conclusion, however. Maloney, in which the alleged injuries did not
occur in the neonatal context, stood for the proposition that a bystander
to medical malpractice may not recover for emotional distress. Maloney v.
Conroy, supra, 393, 402. This court recognized the overruling of Maloney
in Squeo v. Norwalk Hospital Assn., 316 Conn. 558, 570, 574, 113 A.3d 932
(2015). Montinieri established the rules for negligent infliction of emotional
distress claims and did not address medical malpractice. See Montinieri v.
Southern New England Telephone Co., supra, 340–46.
14
At the same time, many of those courts have sought to cabin the potential
liability arising from this rule, for reasons of law or public policy. Although
‘‘[t]he demarcation lines drawn by the courts are not always consistent and
. . . are not always clearly articulated’’; Smith v. Borello, 370 Md. 227, 241,
804 A.2d 1151 (2002); courts generally have limited the emotional distress
damages that the mother can recover to those arising from the traumas she
suffered during and immediately following the birthing process, up to and
including her realization of her child’s injuries; emotional distress damages
for ongoing emotional distress arising from a loss of the child’s consortium,
coping with the child’s ongoing injuries or with the ongoing loss of the child,
or disruptions to the ordinary routines of life generally have been permitted
only when authorized by statute. See, e.g., id., 241, 244, 247–48; see also,
e.g., Burgess v. Superior Court, supra, 2 Cal. 4th 1084; Mehigan v. Sheehan,
94 N.H. 274, 278, 51 A.2d 632 (1947); Modaber v. Kelley, supra, 232 Va. 66–67.
15
Because the state was not the defendant and the sovereign immunity
statute was not at issue, the courts in these cases generally did not have
cause to distinguish between medical malpractice and related causes of
action, such as negligent infliction of emotional distress. Thus, although
some of them determined that the allegations qualified as negligent infliction
of emotional distress, they provide little support for the state’s position that
the plaintiffs’ claims in the present case do not also sound in medical
malpractice. See part II C of this opinion.
16
To prove bystander emotional distress, the plaintiff must establish that
‘‘(1) the bystander is closely related to the primary victim of the accident
or injury, (2) the bystander’s emotional distress is caused by the contempora-
neous sensory perception of the event or conduct that causes the accident
or injury, or by arriving on the scene soon thereafter and before substantial
change has occurred in the primary victim’s condition or location, (3) the
primary victim dies or sustains serious physical injury, and (4) the bystander
experiences serious emotional distress as a result.’’ Squeo v. Norwalk Hospi-
tal Assn., supra, 316 Conn. 582. None of those elements is an essential
element of a medical malpractice claim. Similarly, to prove negligent inflic-
tion of emotional distress, the plaintiff must specifically establish that ‘‘the
defendant should have realized that its conduct involved an unreasonable
risk of causing emotional distress and that that distress, if it were caused,
might result in illness or bodily harm.’’ Montinieri v. Southern New England
Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978); see also Wood v.
Rutherford, 187 Conn. App. 61, 79–80, 201 A.3d 1025 (2019) (applying similar
standard in health care context).