Drew v. William W. Backus Hospital

• Decision Date: 01 July 2003
• Docket Number: (AC 22986).
• Citation: 77 Conn. App. 645,825 A.2d 810
• Court: Connecticut Court of Appeals
• Parties: RONDA DREW, ADMINISTRATRIX (ESTATE OF CASSIDY DREW-ANZALONE) ET AL. v. WILLIAM W. BACKUS HOSPITAL ET AL.

77 Conn. App. 645

825 A.2d 810

RONDA DREW, ADMINISTRATRIX (ESTATE OF CASSIDY DREW-ANZALONE) ET AL. v. WILLIAM W. BACKUS HOSPITAL ET AL.

(AC 22986).

Appellate Court of Connecticut.

Argued March 26, 2003.

Officially released July 1, 2003.

Foti, West and Dupont, Js.

Robert E. Healey, for the appellants (plaintiffs).

Jeffrey F. Buebendorf, for the appellee (named defendant).

Thomas W. Boyce, Jr., with whom, on the brief, was Jennifer Antognini-O'Neill, for the appellee (defendant Joseph A. Newell).

Opinion

FOTI, J.

This appeal arises from a medical malpractice action. The plaintiffs, Ronda Drew, both individually and in her capacity as the administratrix of the estate of Cassidy Drew-Anzalone, and Michael Anzalone, appeal from the judgment of the trial court rendered in favor of the defendants, William W. Backus Hospital (hospital) and Joseph A. Newell. The judgment followed the court's action in granting summary judgment in the defendants' favor on all counts of the plaintiffs' operative complaint. On appeal, the plaintiffs challenge the propriety of the court's ruling. The dispositive issue raised by the plaintiffs is whether the court, in the context of their malpractice claim, properly concluded that no genuine issue of material fact existed and that, as a matter of law, they had failed to demonstrate that the defendants caused the injury alleged by the plaintiffs. The plaintiffs also claim that the court improperly granted summary judgment with respect to their claims sounding in bystander emotional distress. We affirm the judgment of the trial court. The material facts underlying this appeal are not in dispute. In the early afternoon of July 26, 1997, sixteen month old Cassidy Drew-Anzalone, the daughter of plaintiffs Ronda Drew and Michael Anzalone, was brought to the hospital's emergency room where doctors and medical personnel on the hospital's staff administered medical treatment to her. The child was taken to the hospital because she had been vomiting, had a fever, was irritable and appeared to be in pain. At all relevant times, Newell was a licensed physician specializing in the area of pediatric medicine, was on the hospital's staff and possessed admitting privileges to the hospital. One to two hours after the child arrived in the emergency room, Newell examined and assumed responsibility for the child's care as her attending physician. Newell caused the child to be admitted to a pediatric floor of the hospital; he preliminarily diagnosed her to be suffering from gastroenteritis. At or about 10:20 p.m., the child suffered cardiopulmonary arrest. For the next hour and twenty minutes, Newell and hospital staff members attempted to restore the child's cardiopulmonary viability. Their efforts were unsuccessful and, at 11:35 p.m., Newell pronounced the child dead. It was later determined that the child had died from an undiagnosed disease that affects heart tissue, known as lymphocytic myocarditis.

In their operative complaint, the plaintiffs alleged that in a number of ways, Newell and the hospital breached the standard of care that they owed to the child. They claimed that Newell was deficient in the quality and frequency of care that he administered to the child. Further, they alleged that Newell breached the duty of care that he owed the child while he was acting within the scope of his apparent authority for the hospital. The plaintiffs also alleged that the hospital breached the standard of care that it owed the child in that the care it provided to the child via its nurse employees was deficient. The plaintiffs Ronda Drew, individually, and Michael Anzalone also alleged that the defendants' negligent course of conduct in the care of their daughter caused them extreme emotional distress.

The plaintiffs' operative complaint consisted of six counts. Counts one and two, which sounded in medical malpractice and wrongful death, are alleged by Ronda Drew, in her capacity as administratrix, against Newell and the hospital, respectively. Counts three through six are claims, sounding in bystander emotional distress, brought by Ronda Drew and Michael Anzalone against Newell and the hospital.

The defendants filed motions for summary judgment. The plaintiffs explained clearly the legal basis for their claims in their opposition to the defendants' motions for summary judgment. The plaintiffs did not allege that Newell violated the duty of care he owed the child by failing to properly diagnose her as suffering from lymphocytic myocarditis. Rather, the gravamen of the plaintiffs' claim was that on the basis of symptoms being exhibited by the child while she was under Newell's care, symptoms which he should have better monitored and investigated, the standard of care required Newell to transfer the child to a "pediatric intensive care and/or tertiary care center several hours before" she experienced cardiopulmonary arrest. Further, the plaintiffs claimed that the evidence demonstrated that if Newell had transferred the child "to a tertiary care center at 5 or 6 o'clock on the day of her admission (approximately three hours or more after her initial arrival at [the hospital] and four to five hours before her cardiopulmonary arrest)," the child would have had a "very good chance of surviving . . . ."

The plaintiffs based their allegation of medical malpractice on a theory of lost chance of survival. The plaintiffs claimed that the defendants breached the duty of care by not providing the child with adequate supportive care, as her medical condition warranted, and that this negligent conduct caused a decreased chance of survival and, ultimately, her death. In support of their claim that the alleged breach of the standard of care caused the injury of which they complain, the plaintiffs submitted deposition testimony and an affidavit from Robert J. Sommer, a physician specializing in pediatric cardiology.

In support of their motions for summary judgment, the defendants argued that the plaintiffs had failed to set forth an evidentiary basis to support their claim that the defendants' alleged negligence caused the child to suffer a lost chance of survival. The defendants argued, essentially, that viewing the plaintiffs' proffered evidence in the light most favorable to the plaintiffs' case, such evidence did not, as a matter of law, support the causal link between the alleged negligent acts and a decreased chance of survival that the plaintiffs bore the burden of proving. The defendants also argued that the plaintiffs' claims, which sounded in bystander emotional distress, were derivative of the plaintiffs' malpractice claims. The defendants argued that they were entitled to judgment on those claims as a matter of law because they were entitled to judgment as a matter of law on the malpractice claims. Alternatively, the defendants argued that they were entitled to judgment as a matter of law on the claims sounding in bystander emotional distress because Connecticut law does not recognize such claims when they are based on medical malpractice.

The court concluded that as a matter of law, the plaintiffs had failed to demonstrate the essential element of causation. Accordingly, the court granted the defendants' motions for summary judgment with respect to the medical malpractice counts. The court further concluded that the bystander emotional distress claims of the plaintiffs Ronda Drew and Michael Anzalone were derivative of the malpractice claims and rendered judgment in the defendants' favor on those claims, solely on that basis, as well.

Before turning to the plaintiffs' claims, we first set forth our well settled standard of review. "[T]he scope of our review of the granting of a motion for summary judgment is plenary. . . . In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Golden v. Johnson Memorial Hospital, Inc., 66 Conn. App. 518, 522-23, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001). In ruling on a motion for summary judgment, it is customary for the court to review documentary proof submitted by the parties to demonstrate the existence or nonexistence of issues of material fact. Practice Book § 17-45.

Practice Book § 17-49 provides in relevant part: "[J]udgment . . . shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Gaynor v. Payne, 261 Conn. 585, 590-91, 804 A.2d 170 (2002). "The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Golden v. Johnson Memorial Hospital, Inc., supra, 66 Conn. App. 523. Insofar as the court's legal conclusions are challenged, we must determine whether they are legally and logically correct and find support in the facts contained in the court's memorandum of decision. Zachs v. Groppo, 207 Conn. 683, 689, 542 A.2d 1145 (1988).

I

The plaintiffs first...