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Marsala v. Yalenew Haven Hospital, Inc.

Court of Appeals of Connecticut

June 28, 2016

CLARENCE MARSALA ET AL.
v.
YALE-NEW HAVENHOSPITAL, INC. CLARENCE MARSALA, ADMINISTRATOR (ESTATE OF HELEN MARSALA)
v.
YALE-NEW HAVEN HOSPITAL, INC.

          Argued March 10, 2016

         Appeal from Superior Court, judicial district of Ansonia-Milford, Lee, J. [motion to strike]; Tyma, J. [summary judgment in each case].

          Jeremy C. Virgil, for the appellants (plaintiff Michael Marsala et al. in AC 37822, plaintiff in AC 37821).

          Tadhg A.J. Dooley, with whom was Jeffrey R. Babbin, for the appellee in both appeals (defendant).

          Beach, Keller and Bishop, Js.

          OPINION

          BISHOP, J.

         These consolidated appeals arise from the death of Helen Marsala while under the care of the defendant, Yale-New Haven Hospital, Inc. (Hospital). In the case that underlies AC 37822, there were several plaintiffs. Helen’s husband, Clarence Marsala, in his personal capacity and as administrator of Helen’s estate, and Helen’s five children, Michael Marsala, Gary Marsala, Tracey Marsala, Kevin Marsala, and Randy Marsala, filed a twenty-seven count complaint, including, inter alia, claims of negligent infliction of emotional distress, intentional infliction of emotional distress, wrongful death, loss of consortium, and medical malpractice. On October 30, 2013, the court, Lee, J., granted the Hospital’s motion to strike the negligent infliction of emotional distress counts and, on March 19, 2015, the court, Tyma, J., rendered summary judgment in favor of the Hospital on the intentional infliction of emotional distress counts. The claims for wrongful death, loss of consortium, and medical malpractice are pursued solely by Clarence, in his personal capacity and as administrator, and as they remain pending before the trial court, they are not subject to this appeal. Consequently, because all the claims Clarence brought were not disposed of by the trial court’s actions, he is not a party to the appeal designated as AC 37822.[1]

         In sum, in AC 37822, the plaintiffs, Helen’s five children, appeal from the decisions striking their negligent infliction of emotional distress claims and rendering summary judgment on their intentional infliction of emotional distress claims.

         In the case that underlies AC 37821, Clarence, as administrator of Helen’s estate, filed a separate action alleging medical malpractice by the Hospital. On March 19, 2015, the court, Tyma, J., rendered summary judgment in favor of the Hospital in that action on the ground that the medical malpractice claim comprising that action was duplicative of the wrongful death, loss of consortium, and medical malpractice counts that Clarence, in his personal capacity and as administrator, was still actively pursuing in the case underlying AC 37822. Judge Tyma reasoned that Clarence’s claims in both cases were identical and arose from the same factual allegations, which rendered his claim in the case underlying AC 37821 legally insufficient under Floyd v. Fruit Industries, Inc., 144 Conn. 659, 669, 136 A.2d 918 (1957) (Limiting recovery to one action ‘‘where damages for death itself are claimed in an action based on our wrongful death statute, recovery of any ante-mortem damages flowing from the same tort must be had, if at all, in one and the same action. In other words, there cannot be a recovery of damages for death itself under the wrongful death statute in one action and a recovery of ante-mortem damages, flowing from the same tort, in another action . . . .’’) AC 37821 is Clarence’s appeal from that judgment. Clarence has not raised or briefed any challenge to the summary judgment rendered in the separate action. Accordingly, we deem the appeal in AC 37821 to be abandoned and we address, only, the issues raised in AC 37822; see Commission on Human Rights & Opportunities ex rel. Arnold v. Forvil, 302 Conn. 263, 279–80, 25 A.3d 632 (2011) (holding claims are inadequately briefed when parties do not develop claims with analysis); Connecticut Light & Power, Co. v. Gilmore, 289 Conn. 88, 124, 956 A.2d 1145 (2008) (‘‘[w]e repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief’’ [internal quotation marks omitted]); and do not address the merits of AC 37821 here. For the reasons stated herein, we affirm the judgments of the trial court.

         I

         The following allegations from the pleadings, evidence submitted by the parties, and procedural history are relevant to the resolution of this appeal. On April 7, 2010, Helen, then seventy-six years old, was admitted to Griffin Hospital (Griffin) to undergo wrist surgery. After surgery, Helen’s wrist became infected and her condition worsened to the point that she was put on life support. She subsequently lost consciousness and became comatose. Helen did not have a living will with instructions concerning her care should she fall into a coma with no reasonable prospects for recovery. However, she had expressed to Clarence her desire to remain on life support should she ever lose the ability to speak for herself while hospitalized. At Griffin, the medical staff came to the view that Helen’s condition was irreversible and they recommended to Clarence that Helen be taken off life support. Based on Helen’s previous expressions, however, Clarence refused to give consent, and on June 19, 2010, he transferred Helen to the Hospital.

         Helen arrived at the Hospital in critical condition. She required a respirator to breathe, received her nutrition through a feeding tube, and, aside from one moment when she opened her eyes, remained unconscious and unresponsive to painful stimuli. Her intake report described Helen as: ‘‘A 76 year old woman transferred from Griffin Hospital for multiple medical problems for further management. She has an extensive past medical history, which included [diabetes mellitus], moderate aortic stenosis, hypertension, hyperlipidemia. . . . She has had a long hospital course, which has included prolonged respiratory failure and failure to wean, shock requiring vasopressors, Morganella bacteremia requiring treatment with Impipenem, volume overload, and GI bleeding thought to be due to ischemic colitis.’’ Helen’s intake physician summarized her status, stating that her ‘‘[p]rognosis is uncertain at best given her multiple medical problems and advanced age.’’

         On the day Helen was admitted to the Hospital, members of its staff discussed with Clarence and Michael the permanent removal of Helen’s ventilator. Clarence and Michael refused. Instead, they instructed the Hospital never to ‘‘pull the plug.’’ Nonetheless, the conversation continued. Hospital staff repeatedly advised permanently removing Helen’s ventilator, and Clarence and other members of the family continually refused to give their consent. Despite objecting to permanently removing Helen’s ventilator, Clarence believed that Helen would not want to remain alive at all costs and, accordingly, upon admission to the Hospital, he agreed to keep her status as ‘‘Do Not Resuscitate.’’

         Helen’s condition worsened during her time at the Hospital. Images of her brain revealed new infarcts, and monitoring of her brain showed slowing. Despite Helen’s bleak outlook, the Hospital attempted to help Helen regain consciousness by conducting weaning trials in an attempt to stimulate her respiratory system. The weaning trials involved temporarily removing Helen’s ventilator with the hope that her body would then start breathing on its own. Clarence and the plaintiffs did not object to the weaning trials as they hoped that these efforts would lead to some improvement in Helen’s mental status. However, Clarence continued to oppose the Hospital’s recommendation that Helen’s ventilator be permanently removed. Instead, Clarence insisted that the Hospital reintubate Helen if she did not start breathing on her own and not change her status to ‘‘Due Not Reintubate.’’ At this time, although Clarence continued to object to changing Helen’s status to ‘‘Do Not Reintubate, ’’ the Hospital kept in place her ‘‘Do Not Resuscitate’’ status.

         Due to the disagreement between Clarence and the Hospital physicians over whether to reintubate Helen if her condition did not improve, the Hospital referred Helen’s case to its Bioethics Committee (committee). Generally, the committee, a Hospital panel composed of the physicians and social workers familiar with the particular patient, members of the clergy, relevant staff personnel, and health care specialists from the relevant medical fields, is authorized to consider the ethical issues relatingto the treatment of patients and to recommend a course of action. In Helen’s case, the committee met on July 23, 2010. Although Clarence was invited to participate, he did not attend. The committee noted that Clarence wished to keep Helen alive, despite her poor prognosis. The committee also considered the medical opinion of Helen’s physicians who were ‘‘concerned that [they were] providing futile care considering [Helen] has had multi-organ failure for several weeks now-respiratory failure, poor mental status, kidney failure, and stage IV skin break down over the back, as well as stage II over the bridge of nose from [her breathing mask, known as a Bilevel Positive Airway Pressure (BiPAP) mask].’’

         On July 23, 2010, after considering Helen’s prognosis, the views of her medical team, and the views of her family, the committee recommended ‘‘that there be no further escalation of care (meaning no intubation or pressors) considering this is not in the best interest of the patient and we are not providing care that would achieve the patient’s goal of going home.’’ Finally, a committee member called Clarence and left a voice mail requesting that he discuss the committee’s recommendation with her. Clarence did not respond to the committee member’s request. In fact, during the final days of Helen’s life, Clarence became increasingly difficult to contact. He did not answer his phone and visited the Hospital less frequently.

         Following the committee’s recommendation, the Hospital sought a second opinion from a pulmonologist, a physician who specializes in the respiratory system, and who had not been involved in Helen’s care. The pulmonologist ‘‘concur[red] with the decision of [Helen’s] primary [medical] team and of the committee and [stated that] further attempts at therapeutic intervention do not offer a chance of a better outcome.’’ Additionally, the pulmonologist stated that ‘‘[r]eintubation, ongoing use of BiPAP based on both asynchrony and skin breakdown is not warranted.’’ He further ‘‘agree[d] to moving [Helen] to a comfort care plan.’’ Finally, the pulmonologist noted that he had called Clarence and left a message explaining his medical opinion and agreement with the committee’s recommendation.

         In accordance with the committee’s recommendation and buttressed by the second opinion by a pulmonologist, the Hospital changed Helen’s status to provide comfort care only and a ‘‘Do Not Reintubate’’ order was entered for her in addition to the ‘‘Do Not Resuscitate’’ order previously issued. Neither Clarence nor any of the plaintiffs was present at the committee meeting; none of them witnessed the Hospital’s decision-making process and none was present when the Hospital made the ultimate decision to transition Helen to comfort care and change her status to ‘‘Do Not Reintubate.’’[2]On July 24, 2010, the Hospital permanently removed Helen’s ventilator. She died that night.

         Subsequently, Clarence, both in his personal capacity and as administrator of Helen’s estate, and the plaintiffs brought the action underlying AC 37822 against the Hospital. The initial complaint in that action asserted a variety of claims (twenty-seven counts), all rooted in the core allegation that the Hospital ‘‘ignored the wishes of . . . Helen, as expressed from her next of kin, Clarence . . . prior to removing life support.’’ Pertinently, the complaint alleged: negligent infliction of emotional distress alleged by each individual plaintiff (counts one through six), intentional infliction of emotional distress claims alleged by each individual plaintiff (counts seven through twelve), wrongful death and loss of consortium claims alleged by Clarence in his personal capacity and as administrator (counts twenty-one and twenty-two, respectively), and medical malpractice and loss of consortium claims alleged by Clarence in his personal capacity and as administrator (counts twenty-six and twenty-seven, respectively).[3] Additionally, Clarence, as the administrator of Helen’s estate, separately filed the action underlying AC 37821 alleging medical malpractice by the Hospital, premised on the same factual allegations underlying AC 37822.

         On March 22, 2013, the Hospital filed a motion to strike most of the counts in the action underlying AC 37822, including the plaintiffs’ negligent infliction of emotional distress counts. On October 30, 2013, Judge Lee granted the Hospital’s motion to strike the negligent infliction of emotional distress counts. Specifically, Judge Lee determined that the plaintiffs’ negligent infliction of emotional distress counts were properly characterized as bystander emotional distress claims, which required the plaintiffs to allege facts tending to show ‘‘the[ir] contemporaneous sensory perception of the event or conduct that causes the injury, or by [arrival] on the scene soon thereafter and before substantial change has occurred in the victim’s condition or location, ’’ as required by our Supreme Court’s decision in Clohessy v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852 (1996). Judge Lee concluded that the plaintiffs had failed to ‘‘allege that they witnessed the actual removal of the respirator or the resulting demise of Helen or arrived shortly thereafter’’ and, accordingly, had not met the pleading standard required by Clohessy. Additionally, Judge Lee noted that so far as the plaintiffs’ claims sought damages for medical malpractice against the Hospital for its treatment of Helen, such claims were barred by Maloney v. Conroy, 208 Conn. 392, 392, 545 A.2d 1059 (1988) (holding that bystanders to medical malpractice may not recover for emotional distress). Judgment was entered on the stricken counts.

         On August 28, 2014, the Hospital filed a motion for partial summary judgment in the case underlying AC 37822 as to the counts alleging intentional infliction of emotional distress. On March 19, 2015, Judge Tyma granted that motion on the grounds that the claims sounded in bystander intentional infliction of emotional distress claims and such claims were barred by Maloney v. Conroy, supra, 208 Conn. 392.[4] These consolidated appeals followed. See footnotes 1 and 4 of this opinion.

         On appeal in AC 37822, the plaintiffs challenge Judge Lee’s decision granting of the Hospital’s motion to strike their negligent infliction of emotional distress claims and Judge Tyma’s rendering of summary judgment in favor of the Hospital on their intentional infliction of emotional distress claims. Specifically, with respect to Judge Lee’s decision to strike their negligent infliction of emotional distress counts, the plaintiffs challenge his characterization of their allegations as claims of bystander, not direct, emotional distress. The distinction is critical as bystander claims require the plaintiffs to allege that they contemporaneously perceived the Hospital’s negligent act or saw its result shortly thereafter. Clohessy v.Bachelor, supra, 237 Conn. 56. Judge Lee granted the Hospital’s motion to strike those counts on the ground that the plaintiffs had failed to allege facts which, if proven, could establish Clohessy’s contemporaneous perception requirement. Similarly, the plaintiffs argue that Judge Tyma incorrectly characterized their intentional infliction of emotional distress counts as premised on bystander liability and incorrectly rendered summary judgment in favor of the Hospital on those counts on the ground that bystander claims ...


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