PPA v. Peter H. O'Meara, Commissioner Department of Developmental Services et al. (2011)

MEMORANDUM OF DECISION

MOTION TO STRIKE

The plaintiff, Tylon Armstrong, by and through his mother, Anne Atmore, brings this lawsuit in nine counts against the defendants, Peter O'Meara, the Commissioner of the Department of Developmental Services (DDS), two DDS employees, the town of Windsor, Connecticut and two Windsor police officers.   The complaint, dated July 15, 2008, alleges the following causes of action:  negligence and violations of the patients' bill of rights against O'Meara (counts one and two);  violations of the plaintiff's civil rights under 42 U.S.C. §§ 1983 and 1988 against the two DDS employees (counts three and four); ¹  negligence claims against the two Windsor police officers (counts five and seven);  claims for indemnification from the town of Windsor pursuant to General Statutes § 7–465 (counts six and eight);  and claims against the town of Windsor and its officers for violations of the plaintiff's civil rights under 42 U.S.C. §§ 1983 and 1988 (count nine).

In support of his claims, the plaintiff alleges the following facts.   On or about October 4, 2007, the plaintiff, a minor child who suffers from autism, was placed in a respite home in Windsor that was operated by DDS. The following day, while the plaintiff was a passenger in a van owned by the State of Connecticut, employees and/or staff of DDS assaulted, restrained, tasered and medicated the plaintiff, or, by their omissions, allowed others to do so, for the purpose of controlling his behavior.   The staff was improperly trained in autistic care and failed to adequately supervise the plaintiff to prevent him from injuring himself or others.   As a result of this incident, the plaintiff sustained physical injuries, emotional harm and a setback of his educational progress.   In addition, his parents incurred substantial costs for his medical care and may face future costs for his institutional or in-patient care.   The conduct of O'Meara and/or his employees deprived the plaintiff of his personal and civil rights in violation of General Statutes § 17a–541, which is a provision of the psychiatric patients' bill of rights.

Pending before the court is O'Meara's motion to strike count two of the complaint on the ground that the plaintiff's allegations are legally insufficient to support a cause of action against him under the patients' bill of rights.   The issue has been fully briefed by the parties and was orally argued at short calendar on December 13, 2010.

In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action.”   (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).

In his memorandum of law in support of his motion to strike, O'Meara argues that the plaintiff's cause of action under the patients' bill of rights is legally insufficient because the plaintiff fails to allege facts that would qualify for the protection of the bill.   Specifically, O'Meara contends that the plaintiff does not allege that he was a patient who suffered from a psychiatric disability;  that he was hospitalized or received treatment;  or that he was at a facility for the treatment of persons with psychiatric disabilities.   The plaintiff counters that his claim is legally sufficient in that psychiatric disabilities, as referenced in the bill, are disorders that are listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders–IV, and that autism is a disorder listed therein.   The plaintiff also argues that a respite home is a facility, as that term is used in the bill, because the definition of the term includes facilities for the diagnosis, observation or treatment of people with psychiatric disabilities and the purpose of respite homes is to provide for the observation of people with psychiatric disabilities.   At oral argument, O'Meara conceded that the plaintiff suffers from a psychiatric disability and that a respite home is a facility as those terms are used in the bill.   O'Meara does not concede that the plaintiff has alleged sufficient facts that he was a patient or that he was hospitalized or received treatment from the respite home.

The patients' bill of rights, which was enacted in 1971, as codified in General Statutes §§ 17a–540 through 17a–550, “represents the breadth of the legislative concern for the fair treatment of mental patients.”  (Internal quotation marks omitted.)  Wiseman v. Armstrong, 269 Conn. 802, 821–22, 850 A.2d 114 (2004).  “Because the patients' bill of rights is remedial in nature, its provisions should be liberally construed in favor of the class sought to be benefitted.”  Mahoney v. Lensink, 213 Conn. 548, 556, 569 A.2d 518 (1990).

General Statutes § 17a–550 provides in relevant part:  “Any person aggrieved by a violation of sections 17a–540 to 17a–549, inclusive ․ may bring a civil action for damages.”  General Statutes § 17a–541 provides in relevant part:  “No patient hospitalized or treated in any public or private facility for the treatment of persons with psychiatric disabilities shall be deprived of any personal, property or civil rights ․” (Emphasis added).   In this context, the word “patient” is defined as “any person being treated in a facility ․” General Statutes § 17a–540(2) (Emphasis added).   The term “facility” is defined as “any inpatient or outpatient hospital, clinic or other facility for the diagnosis, observation or treatment of persons with psychiatric disabilities ․” (Emphasis added.)  General Statutes § 17a–540(1).²

Although the bill does not define the term “hospitalized,” the term “hospital for persons with psychiatric disabilities,” as used therein, is defined as “any public or private hospital, retreat, institution, house or place in which any person with psychiatric disabilities is received or detained as a patient, but shall not include any correctional institution of this state ․” General Statutes § 17a–495(b).  The statute does not define the term “treatment.”   “When a statute does not provide a definition, words and phrases in a particular statute are to be construed according to their common usage ․ To ascertain that usage, we look to the dictionary definition of the term.”   (Internal quotation marks omitted.)  Potvin v. Lincoln Service and Equipment Co., 298 Conn. 620, 633, 6 A.3d 60 (2010).   One dictionary defines the term “treatment” as “the act or manner or an instance of treating someone or something ․” Merriam–Webster Online Dictionary, http://www.merriam-webster.com/dictionary (last visited January 6, 2011).   The term “treat” is defined as “to care for or deal with medically or surgically ․” Id. The term “medical” is defined as “of, relating to, or concerned with physicians or the practice of medicine ․” Id. Another dictionary more succinctly defines the term “treatment” as “the application of remedies with the object of effecting a cure;  therapy.”   The American Heritage Dictionary (2d College Ed.1991).   As recently as 2009, the judges of the Superior Court, have used this latter, more succinct definition.   See Crossland v. Anthem Health Plans, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 06 5007647 (March 24, 2009, Eveleigh, J.) (47 Conn. L. Rptr. 404, 406);  see also Main v. Roth, Superior Court, judicial district of Hartford/New Britain, Docket No. CV 93 0458686 (May 16, 1995, Handy, J.).

The plaintiff has alleged in count two that he was placed in the “care of' DDS and that DDS employees “restrained” and “tasered” him.   These allegations are insufficient to constitute treatment.³  For this primary reason, even a broad reading of the complaint does cannot support an inference that the plaintiff was a patient, and, by extension, that he was hospitalized.

In addition, the allegation that the plaintiff was placed in a respite home is insufficient to allege that he received treatment.  General Statutes § 17a–218(d) authorizes DDS to provide respite care services for individuals with mental retardation;  this includes children suffering from autism who also meet the standards for mental retardation outlined in General Statutes § 1–1g.   While the statute does not define respite care, the dictionary defines “respite” as “providing or being temporary care in relief of a primary caregiver ․” Merriam–Webster Online Dictionary, http://www.merriam-webster.com/dictionary/respite (last visited January 6, 2011).   Thus, by its very definition, respite homes provide care for the purpose of relieving a primary caregiver of his or her responsibilities, not for the purpose of treating individuals with psychiatric disabilities.

Further, while neither the Supreme Court nor the Appellate Court have determined whether a respite home's purpose is for the treatment of individuals, two cases are instructive.   First, in Wiseman v. Armstrong, supra, 269 Conn. 802, the Supreme Court held that the patients' bill of rights does not apply to individuals receiving mental health treatment in correctional institutions because their primary purpose is confinement, not treatment.   Id., 812.   The court acknowledged that the correctional institution at issue operated an intensive mental health program for mentally ill inmates, but found that such a program was incidental to the true purpose of such facilities.   Id. The court found that the patients' bill of rights does not cover such incidental programs because the task force that advocated for the bill was specifically interested in facilities whose “primary function ․ is to diagnose, treat and restore mentally disturbed persons to an optimal level of functioning ․” (Internal quotation marks omitted.)  Id.

In the present case, a respite home's primary function, as defined, is to provide temporary relief for caregivers.   While there is some evidence in the regulations that respite homes may provide a minimal level of medical care for individuals;  see Regs., Conn. State Agencies § 17a–210–2 (outlining guidelines for the administration of medicine at respite facilities);  § 17a–210–3 (requiring that respite employees receive training in medical terminology, drug classifications, and safe techniques of medicine administration);  § 17a–210–6 (requiring respite employees to keep records of the administration of medicine);  § 17a–218–16 (requiring respite providers to have training in basic first aid, infection control, and positive behavior management);  such care appears to be incidental to the main purpose of respite homes.   Furthermore, the purpose of such medical care appears to be to maintain an individual's health during his stay, not to cure or restore his health.

Second, in Mahoney v. Lensink, supra, 213 Conn. 548, the court made a distinction between custody and treatment.   In that case, the plaintiff's brought an action against the commissioners of mental health, state police and mental retardation after their son committed suicide while he was a patient at Norwich Hospital.  Id., 551–52.   The plaintiffs claimed that the defendants' failure “to provide proper counseling, medication, supervision or suicide precautions” for their son resulted in his suicide and that this failure constituted a violation of General Statutes § 17–206b (now § 17a–541) of the patients' bill of rights.  Id., 552.   The Supreme Court held that § 17–206b “intended to secure for mental hospital patients a state statutory remedy for the violation of substantive liberty interests similar to that provided by federal law ․ [such as] a right to treatment and personal security.”  Id., 568.   In discussing another provision of the patients' bill of rights, the court further held that “meaningful treatment requires not only basic custodial care but also an individualized effort to help each patient by formulating, administrating and monitoring a specialized treatment plan.”   (Internal quotation marks omitted.)  Id., 665.⁴

While respite centers provide custodial care and supervision, neither the statutes nor the regulations require a specialized treatment plan for individuals in respite care.⁵  The absence of a required specialized treatment plan lends further support to the conclusion that it cannot be inferred from the plaintiff's pleadings that he received treatment at the respite home.

For the foregoing reasons, the court concludes that count two of the plaintiff's complaint fails to state a legally sufficient claim under the patients' bill of rights.   The plaintiff has failed to properly allege that he was a patient who was hospitalized or treated at a facility for the treatment of persons with psychiatric disabilities.   These facts cannot be inferred from the plaintiff's allegation that he was placed in a respite home.   Accordingly, the motion to strike count two is hereby granted.

Peck, J.

FOOTNOTES

FN1. The plaintiff later withdrew his causes of action against these individuals on February 17, 2010..  FN1. The plaintiff later withdrew his causes of action against these individuals on February 17, 2010.

FN2. The Supreme Court has further limited the definition of facility to “one for which the main purpose is ‘diagnosis, observation or treatment.’   “ (Emphasis added;  internal quotation marks omitted.)  Wiseman v. Armstrong, supra, 269 Conn. 810..  FN2. The Supreme Court has further limited the definition of facility to “one for which the main purpose is ‘diagnosis, observation or treatment.’   “ (Emphasis added;  internal quotation marks omitted.)  Wiseman v. Armstrong, supra, 269 Conn. 810.

FN3. A thorough review of case law found nothing to indicate that allegations of tasering or restraint amount to treatment.   See, e.g., Anghel v. Saint Francis Hospital & Medical Center, United States District Court, Docket No. 00864 (D.Conn.2005) (finding the plaintiff could not state a claim under the psychiatric patients' bill of rights based on allegations that emergency room staff restrained him)..  FN3. A thorough review of case law found nothing to indicate that allegations of tasering or restraint amount to treatment.   See, e.g., Anghel v. Saint Francis Hospital & Medical Center, United States District Court, Docket No. 00864 (D.Conn.2005) (finding the plaintiff could not state a claim under the psychiatric patients' bill of rights based on allegations that emergency room staff restrained him).

FN4. The superior court has also distinguished custodial supervision from treatment in another context.   In Doe v. Institute of Living, the court found that allegations of negligent supervision of a patient at a mental health facility did not constitute allegations of negligent treatment as required to state a claim of medical malpractice.   See also Doe v. The Institute of Living, Superior Court, judicial district of Hartford, Docket No. CV 07 5007981 (August 10, 2007, Wiese, J.) (44 Conn. L. Rptr. 5, 7)..  FN4. The superior court has also distinguished custodial supervision from treatment in another context.   In Doe v. Institute of Living, the court found that allegations of negligent supervision of a patient at a mental health facility did not constitute allegations of negligent treatment as required to state a claim of medical malpractice.   See also Doe v. The Institute of Living, Superior Court, judicial district of Hartford, Docket No. CV 07 5007981 (August 10, 2007, Wiese, J.) (44 Conn. L. Rptr. 5, 7).

FN5. Respite providers may, where applicable, follow an overall plan of services, follow along plan, or other specific service plan.   See Regs., Conn. State Agencies § 17a–218–17(f).  Generally, these plans specify a strategy to guide the delivery of service to an individual.   See Regs., Conn. State Agencies § 17a–218–8.   Nowhere is treatment mentioned in the plans..  FN5. Respite providers may, where applicable, follow an overall plan of services, follow along plan, or other specific service plan.   See Regs., Conn. State Agencies § 17a–218–17(f).  Generally, these plans specify a strategy to guide the delivery of service to an individual.   See Regs., Conn. State Agencies § 17a–218–8.   Nowhere is treatment mentioned in the plans.

Peck, A. Susan, J.