Lizabeth A. Theroux-Acampora, Executrix v. Saint Regis Health Center, Inc. (2010)

RULING ON MOTION TO STRIKE (# 108)

In a two-count complaint dated April 22, 2009 (complaint), Lizabeth A. Theroux-Acampora, executrix of the estate of Charles Theroux a/k/a C. Kenneth Theroux (Theroux) has alleged a wrongful death action premised in the first-count on negligence and in the second count on recklessness.   In a Motion to Strike dated October 8, 2009 (# 108), the defendant Saint Regis Health Center, Inc. d/b/a Sister Anne Virginie Grimes Health Center, (Health Center) moved to strike the complaint in its entirety.

“[A] motion to strike challenges the legal sufficiency of a pleading ․” (Internal quotation marks omitted.)  Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000);  see also Practice Book § 10-39.  “For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted.”  (Citation omitted.)  Murillo v. Seymour Ambulance Association, Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003).   The court is required to read the allegations of the complaint broadly.  Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 629, 804 A.2d 180 (2002).   The court must deny the motion to strike if the facts fairly provable under the allegations of the complaint support a cause of action, but must grant it if they do not.   See Doe v. Yale University, supra, 252 Conn. 667;  Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).  “If a motion to strike is directed to the entire complaint, the motion must fail if any of the plaintiff's claims is legally sufficient.”  Kovacs v. Kasper, 41 Conn.Sup. 225, 226, 565 A.2d 18 (1989).

The operative factual allegations of the complaint are:  Theroux was under the care of the Health Center from January 9, 2007 through January 28, 2007 and while there “suffered respiratory arrest and pulmonary infiltrate;  hepatic failure;  renal failure;  severe emotional distress and anguish and ․ death.”  (Counts One and Two, ¶¶ 1, 2).   These injuries are alleged to have resulted, in the first count, from the Health Center's failure “to exercise reasonable care and skill under all the existing circumstances” including failure to:  chart the Theroux's care and treatment, observe and attend to Theroux at appropriate intervals, follow physician's orders and follow and implement a plan of care.   In addition, the complaint alleges that care provided to Theroux was in violation of General Stautes § 19a-550 (Count One, ¶ 7).   In the second-count, the complaint alleges that the Health Center acted “with conscious disregard of known dangers and recklessly failed to meet the minimum standard of care” in certain specified ways.¹

In deciding this motion to strike, the court is limited to considering the alleged grounds of legally insufficiency set forth in the motion.  Practice Book § 10-41.   The Health Center set forth three grounds in its motion:  (1) that the complaint should be struck in its entirety because the plaintiff is seeking damages outside the parameters of the wrongful death statute, General Statutes § 52-255;  (2) that the court should strike those paragraphs of the first and second counts that allege violations of General Statutes § 19a-550;  and (3) that the court should strike those paragraphs of the second count that allege violations of Nursing Standard 96.1 and the Nursing Home Reform Act.

The plaintiff maintains that this is an action for wrongful death premised on nursing home negligence and recklessness.  (Plaintiff's Objection to Motion to Strike, p. 1.) Although the complaint does not specifically cite to General Statutes § 52-255, it seeks damages for the wrongful death of the plaintiffs decedent.   Since that statute “is the sole basis upon which an action that includes as an element of damages a person's death or its consequences can be brought,” Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 295, 627 A.2d 1288 (1993), the failure to cite the statute is not fatal to this complaint.   Although Practice Book § 10-3 provides that a complaint “grounded on a statute” specifically identify the statute “by its number,” the Supreme Court has repeatedly held that the rule is directory and “[a]s long as the defendant is sufficiently apprised of the nature of the action ․ the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery.”   (Internal quotation marks omitted.)  Caruso v. Bridgeport, 285 Conn. 618, 628, 941 A.2d 266 (2008).   In the context of the complaint's allegations and the explicit statements with respect to the wrongful death statute in the plaintiff's objection to the motion to strike, the court concludes that the Health Center is sufficiently apprised that the cause of action alleged in both counts is for wrongful death and that the plaintiff is aware that she is limited to the damages for which the wrongful death statute provides.

The Health Center has also moved to strike those allegations in the first and second counts based on violations of General Statutes § 19a-550 ² on the ground that “[t]hey constitute an alternative theory of recovery separate and apart from a medical malpractice/wrongful death claim and plaintiff has not alleged facts sufficient to support such a claim.”  (Defendant's Memorandum of Law in Support of Motion to Strike, p.11, hereafter “Memorandum”).   In response, the plaintiff maintains that the complaint pleads alternative theories of liability for wrongful death rather than alternative causes of action.   The plaintiff concedes that the only applicable provision of General Statute § 19a-550 is subsection (b)(10).³

The complaint in this case is not a model of clarity or specificity.   In the first count, allegations of professional negligence are combined with allegations that Theroux's statutory rights were violated in what appears to be an alternative theory of statutory negligence in support of the wrongful death cause of action.   The Health Center did not request that the first count be revised.⁴  Although the factual allegations in the first count are minimal at best, the court cannot conclude that they are insufficient to allege a potential violation of General Statute § 19a-550(b)(10).   Moreover, the court is reluctant to strike phrases from a single paragraph of a single count of a complaint when, in its entirety, the count states a single cause of action.

The Health Center further claims that the second-count is legally insufficient because it fails to allege “a reckless or wilful violation of one of the 28 enumerated rights to support a reckless violation of § 19a-550 such that punitive damages would be available.”  (Memorandum p. 18).   The factual allegations of the second count are thin but not non-existent.   In the second count, the plaintiff alleges failures to provide assistance, proper supervision, nursing intervention and assessment of the decedent, “to determine the [decedent's] current health status,” to develop and adhere to an accurate plan of care, to chart and document Theroux's “medical and functional status” and “to accurately monitor his intake and prevent dehydration.” (¶ 4b, d, e, h).  These failures arguably are subsumed within the rights provided to nursing home patients by General Statute § 19a-550(b)(10).  General Statutes § 19a-550(e) provides for a private cause of action against a nursing home facility “that negligently deprives a patient of any right or benefit created or established for the well-being of the patient by the provisions of this section.”   The same sub-section also provides that “where the deprivation of any such right or benefit is found to have been wilful or in reckless disregard of the rights of the patient, punitive damages may be assessed.”   The second count alleges that the Health Center “acted with conscious disregard of known dangers and recklessly failed to meet the minimum standard of care” and sets forth certain conduct that differs from the allegations of negligence in the first count.   It is minimally adequate to state a claim for wrongful death on the theory that there was a reckless violation of General Statute § 19a-550(b)(l0).

In the third ground, the Health Center asserts that paragraphs 4.c and 4.g of the second count should be stricken.   Paragraph 4.c alleges a violation of “Nursing Standards 96.1 in failing to provide nursing intervention to the plaintiff.”   Claiming that the cited standard is not relevant or applicable to this case, the Health Center has attached to its memorandum, as exhibit F, a document entitled “State of Connecticut, Department of Developmental Services, Nursing Standard, Nursing Process # NS 09.1 (Replaces 96.1 Nursing Process and 96-2 Nursing Process Components).”   It argues that the standard applies to individuals under the care of the Department of Developmental Services and points the court to facts contained in the written opinion letter attached to the complaint.  (Memorandum, p. 20).   However, this is evidence outside the pleadings and cannot be considered by the court in deciding a motion to strike.   See, e.g., Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 347-48, 576 A.2d 149 (1990);  Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 385 (1996).   The applicability of these provisions to this case must be addressed by other means.

Paragraph 4.g alleges violations of the federal Nursing Home Reform Law and specifically cites to 42 U.S.C. §§ 1395I-3 and 1369R and to 42 C.F.R. 483.10, 483.12 and 483.15.9.⁵  The Health Center maintains that since these provisions do not explicitly or implicitly provide for a private right of action plaintiff, the paragraph must be stricken.   Alternatively, the Health Center maintains that the second count of the complaint does not allege facts to support a violation of any of these sections that would be sufficient to plead recklessness.

Although it is permissible to plead a breach of a statutory or regulatory duty as evidence of negligence, see Small v. South Norwalk Savings Bank, 205 Conn. 751, 760, 535 A.2d 1292 (1988), this court could find no authority for the proposition that pleading such a breach suffices to support a claim for recklessness.   Unlike General Statutes § 19a-550(e) which explicitly provides for a cause of action in recklessness for the wilful violation of one or more provisions of § 19a-550(b), the cited statutory and regulatory provisions contain no such provision.   Furthermore, it is impossible to determine from paragraph 4.g which of the many numerous and various sections in the cited statutes and regulations were allegedly violated by the Health Center in a manner sufficient to support an allegation of recklessness.   This paragraph, consequently, is ordered stricken.

In sum, although the court does not condone the manner in which this complaint is pleaded it concludes that, with the exception of paragraph 4.g of the second count, it is minimally adequate to withstand the motion to strike on the asserted grounds.

LINDA K. LAGER, JUDGE

FOOTNOTES

FN1. In ¶ 4 of the Second Count, the plaintiff alleges that the Health Center “acted with conscious disregard of known dangers” and recklessly in pertinent part as follows:  disregarding “its duty to properly train its employees to care for, treat, assess, monitor and implement steps and/or timely intervene to protect the Plaintiff from injury,” ¶ 4.a, “consciously” choosing “to ignore signs that the plaintiff needed assistance and [choosing] not to provide the Plaintiff with proper supervision commensurate with the nature of his general medical health,” ¶ 4.b, failing to “determine the plaintiff's current health status, and consciously [choosing] not to add additional staff which was necessary to develop and adhere to a comprehensive plan of care for the plaintiff,” ¶ 4.d. failing “to appropriately assess, evaluate and appreciate the change in and ․ recklessly [failing] to correctly chart and document the Plaintiff's medical and functional status,” ¶ 4.e, failing “to have proper policies and procedures to safeguard residents ․ or [violating] its own policies,” ¶ 4.f, failing “to adhere to the plan of care of ․ Theroux to accurately monitor his intake and prevent dehydration,” ¶ 4.h..  FN1. In ¶ 4 of the Second Count, the plaintiff alleges that the Health Center “acted with conscious disregard of known dangers” and recklessly in pertinent part as follows:  disregarding “its duty to properly train its employees to care for, treat, assess, monitor and implement steps and/or timely intervene to protect the Plaintiff from injury,” ¶ 4.a, “consciously” choosing “to ignore signs that the plaintiff needed assistance and [choosing] not to provide the Plaintiff with proper supervision commensurate with the nature of his general medical health,” ¶ 4.b, failing to “determine the plaintiff's current health status, and consciously [choosing] not to add additional staff which was necessary to develop and adhere to a comprehensive plan of care for the plaintiff,” ¶ 4.d. failing “to appropriately assess, evaluate and appreciate the change in and ․ recklessly [failing] to correctly chart and document the Plaintiff's medical and functional status,” ¶ 4.e, failing “to have proper policies and procedures to safeguard residents ․ or [violating] its own policies,” ¶ 4.f, failing “to adhere to the plan of care of ․ Theroux to accurately monitor his intake and prevent dehydration,” ¶ 4.h.

FN2. In ¶ 7 of the first count, the plaintiff has alleged, among other things, that the Health Center “violated C. Kenneth Theroux's right to humane and dignified treatment in violation of Connecticut General Statutes § 19a-550;” “failed to provide proper treatment so as to properly protect and care for C. Kenneth Theroux in violation of Connecticut General Statutes § 19a-550;” and “failed to monitor C. Kenneth Theroux in accordance with a treatment plan in violation of Connecticut General Statutes § 19a-550.”   In ¶ 6 of the second count, the plaintiff has alleged that:  “The deficiencies in care alleged in Paragraph Four and the damages to the plaintiff stated herein were done with reckless disregard of the rights of the plaintiff in violation of C.G.S. § 19a-550(e).”.  FN2. In ¶ 7 of the first count, the plaintiff has alleged, among other things, that the Health Center “violated C. Kenneth Theroux's right to humane and dignified treatment in violation of Connecticut General Statutes § 19a-550;” “failed to provide proper treatment so as to properly protect and care for C. Kenneth Theroux in violation of Connecticut General Statutes § 19a-550;” and “failed to monitor C. Kenneth Theroux in accordance with a treatment plan in violation of Connecticut General Statutes § 19a-550.”   In ¶ 6 of the second count, the plaintiff has alleged that:  “The deficiencies in care alleged in Paragraph Four and the damages to the plaintiff stated herein were done with reckless disregard of the rights of the plaintiff in violation of C.G.S. § 19a-550(e).”

FN3. Plaintiff's counsel made this concession at oral argument.   General Statutes § 19a-550(b)(10) provides the following right to each patient of a nursing home facility:  “[each such patient] receives quality care and services with reasonable accommodation of individual needs and preferences, except where the health or safety of the individual would be endangered, and is treated with consideration, respect, and full recognition of the patient's dignity and individuality, including privacy in treatment and in care for the patient's personal needs.”.  FN3. Plaintiff's counsel made this concession at oral argument.   General Statutes § 19a-550(b)(10) provides the following right to each patient of a nursing home facility:  “[each such patient] receives quality care and services with reasonable accommodation of individual needs and preferences, except where the health or safety of the individual would be endangered, and is treated with consideration, respect, and full recognition of the patient's dignity and individuality, including privacy in treatment and in care for the patient's personal needs.”

FN4. Although the Health Center filed a request to revise, it was limited to ¶¶ 4.c and 4.g of the second count..  FN4. Although the Health Center filed a request to revise, it was limited to ¶¶ 4.c and 4.g of the second count.

FN5. According to the Health Center's memorandum, there is no section numbered “483.15.9” in the C.F.R., although there is a section numbered “483.15.”.  FN5. According to the Health Center's memorandum, there is no section numbered “483.15.9” in the C.F.R., although there is a section numbered “483.15.”

Lager, Linda K., J.