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Can a Witness to Medical Malpractice Recover Damages?

By law, a witness, or bystander of event causing harm to another, can recover damages for emotional distress if various factors are met. However, disagreements among courts still remain as to whether a bystander to medical malpractice can recover damages for emotional distress in Connecticut.

General Bystander Requirements

Normally a witness to an event that produces substantial harm to another may recover damages for emotional distress if that bystander meets various factors including the requirement that the bystander be closely related to the victim.

Bystander to Medical Malpractice

However, a bystander to medical malpractice is a bit different. In this situation, a bystander witnesses an event targeted as medical negligence. In one such example, in Martin v. Waradzin, the parents witnessed the negligent birth of their daughter that resulted in her permanent disability.

In the 1980's, a lower Connecticut court in Maloney v. Conroy held that a bystander to medical malpractice cannot recover emotional damages. Ten years later in Clohessy v. Bachelor, the Connecticut Supreme Court—the highest court in the state—held that a plaintiff can in fact recover for emotional distress as a bystander. However, the court didn't expressly state whether the plaintiff can recover in the context of a med mal claim.

Since Clohessy, the Connecticut Supreme Court has yet to provide a clear-cut ruling as to whether bystanders to a medical malpractice claim have a cause of action for emotional distress in Connecticut.

Some argue the ruling in Maloney continues to bar emotional distress claims by witnesses of medical malpractice; others conclude that such a claim is cognizable under the 1996 Clohessy ruling.

In 2007, a Connecticut lower court held that the court in the Clohessy case did not overrule the court ruling in Maloney case that until "judicially or legislatively overruled" no right of action for bystander emotional distress arising from medical malpractice exists in Connecticut.

Since the Connecticut Supreme Court, some argue, has not provided a concrete answer, the law is still open to interpretation.

A majority of courts across the nation allow a mother seek damages for emotional distress if she witnesses her child's injury during childbirth.

In the meantime, individuals on both sides of the issue await a crystal-clear ruling from the Connecticut Supreme Court rumored to be decided this year.