Scott Sandler, Executor of the Estate of Lorene Jane Wakeman v. Mercy Community Health, Inc. (2010)

MEMORANDUM OF DECISION ON MOTION TO STRIKE

This is a three-count complaint in which the plaintiff, Scott Sandler, executor of the estate of Lorene Jane Wakeman seeks damages from Mercy Community Health, Inc., arising out of defendant's alleged negligence and deprivation of a patient's rights, in violation of General Statutes § 19a-550(b)(10).   The complaint alleges the following:  On November 13, 2007, Jane Wakeman was admitted to Hartford Hospital for surgery.   She fell during her stay at the hospital, and was subsequently identified as being an increased fall risk, requiring the use of restraints.   On November 17, 2007, she was discharged to the defendant's health care facility for short-term rehabilitation services.   Upon admission, the defendant's staff also identified her as having a high risk of falling.   On November 22, 2007, Ms. Wakeman fell from her wheelchair and, as a result, suffered a fractured left wrist.   The following day, a physician ordered that a tabs alarm be used to monitor her while she was in her wheelchair.   There was no such order in place for the periods that she was in her bed.   On January 8, 2008, Ms. Wakeman fell on the floor of her room, next to her bed, and suffered a hip fracture.

Count one sounds in negligence and violations of § 19-13-D8t(g) of the Regulations of Connecticut State Agencies and General Statutes § 19a-550(b)(10);  supervision in violation of 42 C.F.R. § 483.25(h)(2) (2005).   Count one further alleges that a result of the defendant's carelessness, Ms. Wakeman suffered personal injuries, and had to spend money on treatment.

Count two alleges violation of General Statutes § 19a-550(b)(10) and such deprivation of the patient's rights may be found to have been willful or in reckless disregard for [her rights].

Count three alleges violation of [§ ]19a-550(b)(10) and the deprivation of the patient's rights which “may be found to have been willful or in reckless disregard for the rights of Ms. Wakeman.”

On May 12, 2010, the defendant filed this motion to strike counts two and three of the complaint on the ground they do not allege intentional conduct, and therefore, are insufficient to constitute wilful and reckless disregard for Ms. Wakeman's rights.   Specifically, the defendant argues that the plaintiff merely realleges the negligence allegations set forth in count one, and then adds the legal conclusion that defendant's conduct was reckless.

I

Counts two and three allege violations of § 19a-550(b)(10).  Section 19a-550(b)(1) provides in relevant part:  “There is established a patients' bill of rights for any person admitted as a patient to any nursing home facility or chronic disease hospital ․ The patients' bill of rights shall provide that 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 ․”

Furthermore, § 19a-550(e) provides in relevant part:  “Any 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 shall be liable to such patient in a private cause of action for injuries suffered as a result of such deprivation.   Upon a finding that a patient has been deprived of such a right or benefit, and that the patient has been injured as a result of such deprivation, damages shall be assessed in the amount sufficient to compensate such patient for such injury.   In addition, 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.”

In this case the plaintiff has alleged that the defendant operates a post-acute rehabilitation facility and that Ms. Wakeman was a patient at that facility and she did not receive proper care, and was not protected from falls and injury;  that the staff did not report Ms. Wakeman's pain, and that the defendant failed to employ qualified staff in sufficient numbers to meet her needs;  that such failures violated the patients' bill of rights because she was deprived of quality care and services, and she was not treated with consideration and respect;  it appears that she has sufficiently alleged violations of the statute because under § 19a-550(e), recklessness is only necessary to recover punitive damages, and therefore, is not essential to a statutory claim.

II

Whether [the] defendant's conduct constituted heedless and reckless disregard of the plaintiffs' rights (is) a question of fact.  Frillici v. Westport, 264 Conn. 266, 277, 823 A.2d 1172 (2003).  “Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ․ than that which is necessary to make his conduct negligent.”  Matthiessen v. Vanech, 266 Conn. 822, 832, 836 A.2d 394 (2003).   The state of mind amounting to recklessness may be inferred from conduct.

“[W]ilful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent ․ It is at least clear ․ that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.”  Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003).

The plaintiff alleges that, upon admission, the defendant assessed Ms. Wakeman as having a high risk of falling.   Notwithstanding the defendant's knowledge regarding this risk, the defendant failed to take the appropriate procedures to protect Ms. Wakeman from falling and sustaining injury.   Five days after her admission, Ms. Wakeman fell from her wheelchair, and fractured her wrist.   As a result of this fall, a tabs alarm was ordered to monitor her while she was seated in her wheelchair, but none was ordered or used while she was in her bed.   Thereafter, Ms. Wakeman fell from her bed and fractured her hip.

The plaintiff claims that the defendant knew of the high risk of harm and failed to implement appropriate protocols to avoid such harm, even after Ms. Wakeman first fell from her wheelchair.   The defendant's alleged knowledge, coupled with the failure to implement appropriate protocols, could rise to more than a mere mistake resulting from inexperience, thoughtlessness or inattention.   Instead, it might demonstrate a “conscious choice of a course of action” with knowledge of facts which would disclose this danger to any reasonable man.”   Considering the defendant's alleged knowledge of Ms. Wakeman's high fall risk, a jury could find that a reasonable person should have been aware that she was at risk of falling from the bed again resulting in a serious injury.

The plaintiff has adequately set forth a cause of action for recklessness.

Other Superior Court decisions have come to a similar conclusion on similar facts.   In Clemente v. Cedar Lane Rehabilitation and Health Care Center, LLC, Superior Court, judicial district of New Haven, Docket No., CV 09-5027120 (February 11, 2010, Corradino, J.), the court held that the plaintiff's complaint stated an action for the reckless violation of § 19a-550(b)(10) because it alleged that, knowing of the plaintiff's particular condition and fall risk, the defendants failed to take appropriate measure to prevent his fall and injuries.   In Stromberg v. Hamilton Rehabilitation and Health Care Center, Superior Court, judicial district of Hartford, Docket No., CV 04-0833616 (March 13, 2006, Shortall, J.)., the court found that the plaintiff properly alleged a reckless violation of § 19a-550 when the complaint asserted that the defendants knew that the patient had difficulty maintaining in his wheelchair, but failed to institute appropriate measures to ensure a safe environment for her.   See also Iannotti v. Milford North Health Center, Superior Court, Docket No., CV 05-5000866 (October 23, 2008, Lager, J.).   Motion to strike count two and three is denied.

Wagner, J., J.T.R.

Wagner, Jerry, J.T.R.