Juliann Hill v. Ihsan Jabbour et al. (2011)

MEMORANDUM OF DECISION Re MOTION TO STRIKE

The issue before the court is defendant Hartford Hospital's motion to strike the fourth count of the plaintiff's revised complaint on the ground that she has failed to support her claim of vicarious liability against Hartford Hospital for acts of MidState Medical Center employees.   The court also must consider whether to grant defendant Hartford Health Care Corporation's motion to strike the fifth count of the plaintiff's revised complaint on the ground that the plaintiff has failed to state a legally viable cause of action.   Furthermore, both Hartford Health Care Corporation and Hartford Hospital argue that the plaintiff has failed allege that co-defendant Dr. Jabbour was their agent which would hold them vicariously liable for Dr. Jabbour's actions.   Based upon the following facts and legal analysis, the court grants each motion to strike.

FACTS

On July 16, 2010, the plaintiff, Lillian Hill, as guardian and parent on behalf of minor, Juliann Hill, filed a revised eight-count complaint against the following defendants:  Ihsan I. Jabbour, M.D., Medical Office of Ihsan I. Jabbour, M.D., MidState Medical Center, Hartford Healthcare Corporation (“the corporation”), Hartford Hospital (“the hospital”), Dennis Laird, M.D. and Connecticut Children's Medical Center.   In the revised complaint, the plaintiff alleges the following facts.   On September 26, 2007, the plaintiff took her minor child to MidState Medical Center Emergency Department complaining of her child's increased respiratory rate and vomiting.   The minor was evaluated by the MidState Medical Center's medical staff, including Jabbour, who determined that the minor was seriously ill and contacted Connecticut Children's Medical Center to transfer her for care and treatment.   Laird and/or another emergency physician, who was an agent or employee of Connecticut Children's Medical Center, agreed to accept transfer of the minor and informed Jabbour that he would send a transport team for the transfer.   While waiting for the transport team to arrive, however, the minor's respiratory problems worsened and her medical conditions continued to deteriorate.   Over an hour later, when the transport team arrived, the minor went into respiratory arrest and cardiac arrest.   As a result, she was intubated and resuscitation measures were performed.   Subsequently, the minor was transported to Connecticut Children's Medical Center where she was determined to have suffered an anoxic brain injury and cardiomyopathy.

At issue are motions to strike counts four and five of the revised complaint that the plaintiff has brought against the hospital and the corporation, respectively.   More specifically, in the fourth count, the plaintiff alleges that the hospital was negligent through the acts of Jabbour, MidState Medical Center staff and its agents, servants and/or employees because her minor child suffered severe injuries at MidState Medical Center.   In the fifth count, the plaintiff alleges that the corporation's negligence, through acts of Jabbour, MidState Medical Center staff and its agents, servants and/or employees, caused her minor child's injuries.

On September 20, 2010, the hospital and the corporation filed motions to strike the fourth and fifth counts of the revised complaint, respectively, on the grounds that the plaintiff has failed to allege sufficient facts to support her claims of vicarious liability.   The motions are supported by memoranda of law.   The plaintiff filed memoranda of law in opposition to the motions to strike on November 12, 2010.   The matter was heard at the short calendar on December 13, 2010.

LEGAL ANALYSIS

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   Because “[a] motion to strike challenges the legal sufficiency of a pleading ․ [it] requires no factual findings by the trial court.”  (Internal quotation marks omitted.)   Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004).  “Although essential allegations may not be supplied by conjecture or remote implication ․ the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties.”  (Citation omitted;  internal quotation marks omitted.)  Collins v. Anthem Health Plans, Inc., 266 Conn. 12, 24, 836 A.2d 1124 (2003).

The court construes “the complaint in the manner most favorable to sustaining its legal sufficiency ․ 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).   However, “[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.

In support of its motion to strike the fourth count of the plaintiff's revised complaint, the hospital argues that the plaintiff has failed to state any facts to support the alleged relationship between the hospital and MidState Medical Center and/or Jabbour to hold the hospital vicariously liable for actions of the MidState Medical Center employees.   Additionally, the hospital argues that the plaintiff has failed to set forth facts to provide a basis to pierce the corporate veil or hold the hospital directly liable for actions of MidState Medical Center employees.   Lastly, it argues that the plaintiff has failed to allege facts to support its conclusion that Jabbour was acting for the hospital when he performed medical evaluations on the premises of MidState Medical Center, or that the hospital was in control of his evaluation of patients in the MidState Medical Center Emergency Department.

In support of its motion to strike the fifth count, the corporation argues that the plaintiff has failed to allege any facts for her legal conclusion regarding vicarious liability.   It also argues that it is a separate entity from MidState Medical Center and because the plaintiff has failed to allege any factual basis for the court to pierce the corporate veil, absent any direct claims against it, the fifth count should be stricken.   Additionally, it argues that the plaintiff has set forth no facts to support that Jabbour was an employee, agent or owner of the corporation, or that the corporation agreed to control Jabbour's evaluation of patients in the MidState Medical Center Emergency Department.

The plaintiff has filed separate memoranda of law in opposition to the hospital's motion to strike the fourth count and the corporation's motion to strike the fifth count of the plaintiff's revised complaint.   In her memoranda, she objects to the defendants' motions by relying on the same argument that:  a broad and realistic construction of the fourth and fifth counts would reveal that the plaintiff has alleged sufficient facts to establish vicarious liability of the hospital and the corporation.

“[V]icarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of public policy that one person should be liable for the act of [another].”  (Internal quotation marks omitted.)  Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692 n.16, 849 A.2d 813 (2004).  “When vicarious liability is alleged, the injured plaintiff may look for reparation from either the agent or the principal.”  Colon v. Board of Education, 60 Conn.App. 178, 188 n.4, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000).  “[A]gency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act ․ Thus, the three elements required to show the existence of an agency relationship include:  (1) a manifestation by the principal that the agent will act for him;  (2) acceptance by the agent of the undertaking;  and (3) an understanding between the parties that the principal will be in control of the undertaking.”   (Internal quotation marks omitted.)  Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543, 892 A.2d 389 (2006).  “Some of the factors listed by the Second Restatement of Agency in assessing whether such a relationship exists include:  whether the alleged principal has the right to direct and control the work of the agent;  whether the agent is engaged in a distinct occupation;  whether the principal or the agent supplies the instrumentalities, tools, and the place of work;  and the method of paying the agent ․ In addition, [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal ․ Finally, the labels used by the parties in referring to their relationship are not determinative;  rather, a court must look to the operative terms of their agreement or understanding.”  (Emphasis added;  internal quotation marks omitted.)  Hollister v. Thomas, 110 Conn.App. 692, 706, 955 A.2d 1212 (2008).

In the instant case, the revised complaint alleges that Jabbour was “a physician granted privileges, partner, agent, servant, employee, shareholder and/or owner” of the hospital and the corporation.   Although the plaintiff alleges that Jabbour acted as an agent and/or an employee of the hospital and/or the corporation, the plaintiff has failed to allege the facts necessary to prove the existence of such a relationship.   For example, there was no allegation that the hospital or the corporation had the right to control the work of Jabbour.   Rather, the revised complaint alleges that “[b]ased upon information and belief,” the hospital and/or the corporation “owned, operated, managed and/or controlled directly or indirectly, through its agents, servants, employees and/or physicians granted privileges, MidState Medical Center, which was an affiliate and/or associated facility and treated and cared for the plaintiff, Juliann Hill.”

Therefore, the present case is similar to Hollister v. Thomas, in which the Appellate Court held that the trial court properly struck the counts at issue on the ground that the plaintiff failed to allege sufficient facts to establish an agency relationship.¹  Additionally, because mere labels, such as agents or employees, used by the parties in referring to their relationship are not determinative, the court finds in favor of the hospital's motion to strike the fourth count in the revised complaint.   The court similarly finds in favor of the corporation's motion to strike the fifth count of the revised complaint.²

CONCLUSION

For the foregoing reasons, the court grants the hospital's motion to strike count four of the revised complaint and grants the corporation's motion to strike the fifth count of the revised complaint.

BY THE COURT

Alexander, J.

FOOTNOTES

FN1. Although a Superior Court found that there was a sufficient basis for pleading vicarious liability when the plaintiff alleged that “[a]t all times mentioned herein, the co-defendant, Peter Bull, was a servant, agent, apparent agent and/or employee of the defendant hospital and/or the defendant NW CT Emergency Medicine, PC and/or the joint venture formed by the Hospital and NW CT,” it is submitted that the court is not bound by Superior Court decisions.   Pierzga v. Charlotte Hungerford Hospital, Superior Court, Judicial District of Litchfield, Docket No. CV–09–5006121 (October 6, 2010, Roche, J.)..  FN1. Although a Superior Court found that there was a sufficient basis for pleading vicarious liability when the plaintiff alleged that “[a]t all times mentioned herein, the co-defendant, Peter Bull, was a servant, agent, apparent agent and/or employee of the defendant hospital and/or the defendant NW CT Emergency Medicine, PC and/or the joint venture formed by the Hospital and NW CT,” it is submitted that the court is not bound by Superior Court decisions.   Pierzga v. Charlotte Hungerford Hospital, Superior Court, Judicial District of Litchfield, Docket No. CV–09–5006121 (October 6, 2010, Roche, J.).

FN2. Because the defendants' motions to strike are granted on the grounds that the plaintiff has failed to allege sufficient facts to establish an agency relationship, other grounds in support of their motions are not addressed..  FN2. Because the defendants' motions to strike are granted on the grounds that the plaintiff has failed to allege sufficient facts to establish an agency relationship, other grounds in support of their motions are not addressed.

Alexander, Joan K., J.