Thomas Trimm, Administrator et al. v. Laith Kasir et al. (2011)

MEMORANDUM OF DECISION ON MOTIONS TO STRIKE

Thomas Trimm seeks damages for the death of his wife, Debi–Lynn.   In a twelve-count complaint he claims that Mrs. Trimm lost her life due to the negligence of three physicians, Laith Kasir, Bryan Goldberg and Mark Wipfler, as well as Ingraham Professional Group (IPG), Connecticut Emergency Medicine Specialists (CTEMS) and Bristol Hospital (hospital).   In the odd-numbered counts Mr. Trimm sues as the administrator of Mrs. Trimm's estate;  in the even-numbered counts he claims damages for his loss of consortium.   Briefly stated, the complaint alleges that, between September 2006 and her death on January 31, 2009, the physicians and the other defendants failed adequately to diagnose and treat Mrs. Trimm's cardiac condition, leading to a heart attack and death.

In each count Mr. Trimm alleges that not only was the named defendant negligent but so were that defendant's mostly unnamed “servants, agents, apparent agents and/or employees.”   In counts eleven and twelve, directed at the hospital, he alleges that IPG, Dr. Goldberg and Dr. Wipfler were negligent while acting as “servants, agents, apparent agents and/or employees” of the hospital.

Each defendant has moved to strike the counts of the complaint directed at that defendant because they fail to set forth facts sufficient to prove that the unnamed “servants, agents, apparent agents and/or employees” were, in fact, agents of the defendant.   The hospital has also moved to strike counts eleven and twelve because they fail to allege facts sufficient to prove that IPG, Dr. Goldberg and Dr. Wipfler were its “servants, agents, apparent agents and/or employees.”

I

“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).   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.”  (Internal quotation marks omitted.)  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).

“[T]he complaint is required only to fairly put the defendant on notice of the claims against him.”  (Internal quotation marks omitted.)  Montanaro v. Gorelick, 73 Conn.App. 319, 323, 807 A.2d 1083 (2002).  “[T]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically ․ As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery ․” (Citations omitted;  internal quotation marks omitted.)  Normand Josef Enterprises, Inc. v. Connecticut National Rank, 230 Conn. 486, 496, 646 A.2d 1289 (1994).  “[W]hat is necessarily implied [in an allegation] need not be expressly alleged.”   (Internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).

“[U]nder the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment.”  Matthiessen v. Vanech, 266 Conn. 822, 839, 836 A.2d 394 (2003).  “[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].   Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another.”  (Internal quotation marks omitted.)  Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692, n.16, 849 A.2d 813 (2004).   In the medical malpractice area the Supreme Court has recognized that a corporate entity can be held liable for the medical malpractice of its employees.  Ali v. Community Health Care Plan, Inc., 261 Conn. 143 (2002).  “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).

The defendants do not challenge these well-established principles.   They argue that in counts one through twelve of the complaint Mr. Trimm has failed to allege facts sufficient to prove that the defendants are vicariously liable for the allegedly negligent acts of their “servants, agents, apparent agents and/or employees,” both those who are named and those who are as yet unidentified.

Mr. Trimm counters that he is not required to identify in the complaint every servant, agent or employee who may have committed medical malpractice, that the facts alleged in the complaint are sufficient to put the defendants on notice of the claims, and that the defendants are in the best position to identify who treated Mrs. Trimm.   In his supplemental memorandum, he contends that requiring a more specific pleading, in addition to the opinion letter required by General Statutes § 52–190a,¹ would add an unfair barrier to litigation.   He cites the court to Superior Court decisions that have recognized the difficulty for malpractice plaintiffs in identifying every defendant and every agent of a defendant before discovery is conducted.

II

Practice Book § 10–2 provides an exception to the rule that plaintiffs must plead facts demonstrating an agency relationship between a defendant and its agents.  “At Section 10–2, the Practice Book furnishes illustrations of the difference between pleading a doctrine or conclusion or liability and pleading fact.   The first example provided in § 10–2 is as follows:  ‘Thus an act or promise by a principal, [other than a corporation,] if in fact proceeding from an agent known to the pleader, should be so stated.’   In other words, a plaintiff may not plead that the principal contracted with the plaintiff and is liable for breach of contract but must plead that the person who entered into the contract was an agent of the principal.   The principal's liability for the acts of the agent is the legal effect of the agent's act in contracting ․” Lavoie v. Bayer Corp., Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV01 0168392 (January 23, 2002) (31 Conn. L. Rptr. 391, 393).   But, “[c]orporations always act through agents.   They are excepted from the rule requiring that the fact that a contract was made through an agent be stated.”  Vincent v. S. Alexander's Sons Co., 85 Conn. 512, 516, 84 A. 84 (1912).  “Therefore, when the defendant is a corporation ․ it is not even necessary to allege that the act charged to have been performed by the defendant was in fact performed by an agent acting for it, much less is it necessary to allege that this agent had authority to act.   This is so by virtue of an express provision of our rule.”  (Internal quotation marks omitted.)   Fontaine v. Clement, Superior Court, judicial district of Waterbury, Docket No. CV 07 5005261 (April 13, 2009);  see also Figueroa v. Donahue, Superior Court, judicial district of New Britain, Docket No. 08 5006789 (October 27, 2009);  Centreal Co. v. Industrial Bank of Hartford, Inc., 9 Conn.Sup. 208 (1941).

The court therefore rejects the claim of the corporate defendants, IPG, CTEMS and the hospital, that Mr. Trimm has failed to allege facts sufficient to support an agency relationship between them and their alleged servants, agents, apparent agents and employees.   By alleging medical malpractice against the corporate defendants, the plaintiff has sufficiently stated a claim for the corporate defendants' vicarious liability for the actions of both named and unnamed persons.

IV

There are no decisions of the Supreme Court or the Appellate Court addressing the defendants' claim that an allegation that they are liable for the alleged malpractice of named and unnamed “servants, agents, apparent agents and/or employees” without a statement of facts evidencing the alleged agency relationship is insufficient to state a cause of action.   Several Superior Court cases have done so, however.

There are two decisions which adopt the defendants' position.   In Strickland v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV 09 5014599 (March 23, 2011) (51 Conn. L. Rptr. 592), the court granted a motion to strike two counts.   One count alleged a hospital's vicarious liability for actions of an agent, servant and/or employee, who was named in the complaint.   The other alleged the hospital's vicarious liability for the malpractice of various unnamed agents, servants and/or employees.   Regarding both counts, the court held that the plaintiff failed to state a claim on which relief could be granted because the plaintiff failed to allege facts sufficient to support a cause of action of respondeat superior based upon agency.   Specifically, the court granted the motion to strike because the plaintiff failed to allege the three elements of agency described in Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543, 892 A.2d 389 (2006), and Hollister v. Thomas, 110 Conn.App. 692, 706, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008).²

In Hill v. Jabbour, Superior Court, judicial district of New Haven, Docket No. CV 09 6006300 (April 4, 2011), the plaintiff alleged that an individual defendant was “a physician granted privileges, partner, agent, servant, employee, shareholder and/or owner” of a hospital and a corporation.   The court granted motions to strike brought by the hospital and the corporation because the plaintiff failed to allege facts sufficient to prove agency, citing Hollister v. Thomas, supra, 110 Conn.App. 706.

This court finds the reasoning of those decisions unpersuasive.   In effect, they recognize the difficult, if not impossible burden on a plaintiff at the commencement of the lawsuit of knowing the facts giving rise to the alleged agency relationship when they allow the plaintiff simply to plead the three elements of the agency relationship.  “(T)he plaintiff merely has to allege the three elements of agency.   He does not have to plead evidence, nor would that be proper under our rules of practice, § 10–1.   There is nothing to prevent the plaintiff from making such allegations, for which specific knowledge of names or contract terms is not required.”  Strickland v. Bristol, supra, Superior Court, Docket No. CV 09 5014599 supra.   These elements are hardly more “factual” than the allegation that an agent of the named defendant was negligent.   In other words, just to allege that the named defendant manifested that the agent will act for him or that the agent accepted the undertaking or that the parties had an understanding that the principal will be in control of the undertaking does no more to put the defendant on notice of the claim against him than to allege that he is liable to the plaintiff for the acts of his alleged agent.³

In several other recent medical malpractice actions, Superior Courts have held that allegations very similar to those brought by Mr. Trimm were sufficient to plead vicarious liability.   The court in Pierzga v. Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV 09 5006121 (October 6, 2010), denied a motion to strike and wrote:  “In count one of the complaint, the plaintiff alleges:  ‘At 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.’ Several courts have held or implied that such allegations are a sufficient basis for pleading vicarious liability in medical malpractice actions.   See, e.g., Burnette v. Boland, Superior Court, judicial district of New London, Docket No. CV 08 5009111 (April 23, 2010, Martin, J.);   Ribeiro v. Elfenbein, Superior Court, judicial district of Danbury, Docket No. CV 09 5006155 (October 16, 2009, Shaban, J.);   Ryan v. Litchfield Hills Orthopedic Associates, LLP, Superior Court, judicial district of Litchfield, Docket No. CV 08 5003164 (May 26, 2009, Ginocchio, J.).”

Notably, the court in Pierzga rejected the defendant's argument that the plaintiff failed to state a claim for vicarious liability because it failed to plead sufficiently the elements of agency liability described in Wesley v. Schaller Subaru, Inc., supra, and Hollister v. Thomas, supra.   The court wrote that, “unlike the plaintiff's allegations in Hollister, the plaintiff's allegations in the present matter are not based on agency alone, which is just one theory of vicarious liability.   Rather, the plaintiff alleges that Bull was a servant, agent, apparent agent and/or employee of the hospital and NW CT. Given these allegations, specifically the allegation that Bull was an employee of the hospital, and the line of cases that finds these and similar allegations sufficient to put the hospital on notice of vicarious liability in medical malpractice actions, the court concludes that the plaintiff has sufficiently pleaded vicarious liability in count one.”  Pierzga v. Charlotte Hungerford Hospital, supra, Superior Court, Docket No. CV 09 5006121.

In Odei v. Saint Mary's Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 10 6004320 (March 9, 2011), the court followed Pierzga and held that a similar allegation was sufficient to plead a hospital's vicarious liability for medical malpractice.

In Ryan v. Litchfield Hills Orthopedic Associates, LLP, supra, Superior Court, Docket No. CV 08 5003164, the plaintiff alleged that an individual defendant, named in the complaint, was a “servant, agent, apparent agent and/or employee, of the defendant [hospital] ․” In the same count, the plaintiff alleged that the defendant hospital “and its servants, agents, apparent agents and/or employees, undertook the care, treatment, monitoring, diagnosing and supervision of the plaintiff ․ for the interpretation, reading and reporting of an MRI,” and that the defendant hospital “and its servants, agents, apparent agents and/or employees” failed to exercise reasonable care.  Id. Denying the motion to strike, the court reasoned:  “Although some of the allegations in the plaintiff's complaint are somewhat conclusory, this is not necessarily fatal to [the relevant] count ․ Reading [the] count ․ broadly and construing it in a manner most favorable to sustaining its legal sufficiency, the allegations are sufficient to put the defendant on notice of the facts claimed and issues to be tried.   The plaintiff alleges that the defendant undertook the care of the plaintiff and during this course of care, one of the defendant's agents or employees negligently failed to identify items of concern on the plaintiff's MRI. Unlike the cases relied on by the defendant, that the unnamed agent or agents acted within the scope of their agency and in furtherance of the defendant's business is necessarily implied from [the] count ․ because the negligence directly relates to the care for which the plaintiff originally presented.”

Similarly, in Figueroa v. Donahue, supra, Superior Court, Docket No. 08 5006789, the court denied a motion to strike two counts sounding in vicarious liability for medical malpractice against a hospital.   Regarding liability for a named physician's malpractice, the court held that the plaintiff sufficiently pleaded the hospital's vicarious liability by alleging that the defendant physician was granted privileges at the hospital, that he was an agent, servant and employee of the hospital, and that the hospital was vicariously liable for his negligence.  Id. Regarding liability for unnamed agents, servants and/or employees, the court noted that “[t]here is no requirement that a theory of vicarious liability needs to be expressly pleaded in the complaint for a claim to be addressed under that theory, nor is the complaint insufficient if it does not specifically identify the class of agents, servants and employees of an institutional defendant.”  Id.;  see also Fontaine v. Clement, supra, Superior Court, Docket No. CV 07 5005261 (“Connecticut courts do not require a theory of vicarious liability to be expressly pleaded in the complaint for a claim to be addressed under that theory”).

Following what it believes is the more persuasive authority, the court rejects the defendants' argument that Mr. Trimm has not pled facts sufficient to prove that the unnamed “servants, agents, apparent agents and/or employees” were agents of the defendants or that Drs. Golberg and Wipfler and IPG were agents of the hospital.   Because he makes allegations very similar to those made by the plaintiffs in the cases denying motions to strike, the reasoning from those cases applies here.   Like the plaintiff in Pierzga, and unlike the plaintiff in Hollister, Mr. Trimm has sufficiently alleged grounds for vicarious liability other than agency, including employment.   Reading the complaint broadly and construing it in a manner most favorable to sustaining its legal sufficiency, the allegations sufficiently put the defendants on notice of the facts claimed and the issues to be tried.

Furthermore, “[t]he defendant[s] will not suffer any prejudice or surprise, especially because [they are] in the best position to know, at this point, which of [their] employees or agents were involved in the plaintiff's [decedent's] care during the relevant time period.”  Ryan v. Litchfield Hills Orthopedic Assoc., supra, Superior Court, Docket No. 08 5006789;  see Normand Josef Enterprises, Inc. v. Connecticut National Bank, supra, 230 Conn. 496.⁴

V

For the reasons stated in this memorandum of decision the motions to strike are DENIED.

BY THE COURT

Joseph M. Shortall

Judge Trial Referee

FOOTNOTES

FN1. Section 52–190a(a) provides in relevant part:  “To show the existence of ․ good faith [in a medical malpractice action], the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar healthcare provider, as defined in section 52–184c, which similar healthcare provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.”.  FN1. Section 52–190a(a) provides in relevant part:  “To show the existence of ․ good faith [in a medical malpractice action], the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar healthcare provider, as defined in section 52–184c, which similar healthcare provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion.”

FN2. “[T]he 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 ․ Wesley v. Schaller Subaru, Inc., supra, 543–44.”  (Internal quotation marks omitted.)  Hollister v. Thomas, supra, 706..  FN2. “[T]he 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 ․ Wesley v. Schaller Subaru, Inc., supra, 543–44.”  (Internal quotation marks omitted.)  Hollister v. Thomas, supra, 706.

FN3. There is an implication in the defendants' arguments that Mr. Trimm should be required to identify the persons alleged to have been their agents.   After all, how can he allege the facts giving rise to the agency relationship if he cannot identify the agents?   But, in requests to revise the defendants had requested, inter alia, that Mr. Trimm (1) identify by name or class of health care provider each allegedly negligent servant, agent, apparent agent or employee, and (2) place the paragraphs alleging apparent agency into separate counts.   Drs. Goldberg and Wipfler further requested that the plaintiff delete the phrase “and/or his servants, agents, apparent agents and/or employees” in counts five and seven.   On May 31, 2011, the court (Young, J.) sustained the plaintiffs' objections to all of the requests to revise, and this court considers that to be the law of the case on the issue of identifying the as yet unnamed agents..  FN3. There is an implication in the defendants' arguments that Mr. Trimm should be required to identify the persons alleged to have been their agents.   After all, how can he allege the facts giving rise to the agency relationship if he cannot identify the agents?   But, in requests to revise the defendants had requested, inter alia, that Mr. Trimm (1) identify by name or class of health care provider each allegedly negligent servant, agent, apparent agent or employee, and (2) place the paragraphs alleging apparent agency into separate counts.   Drs. Goldberg and Wipfler further requested that the plaintiff delete the phrase “and/or his servants, agents, apparent agents and/or employees” in counts five and seven.   On May 31, 2011, the court (Young, J.) sustained the plaintiffs' objections to all of the requests to revise, and this court considers that to be the law of the case on the issue of identifying the as yet unnamed agents.

FN4. Indeed, the memorandum filed in support of its motion to strike demonstrates the hospital's knowledge of the relationship between it and IPG and Drs. Goldberg and Wipfler.   See Memorandum in Support of Amended Motion to Strike (# 121), 2 (June 15, 2011)..  FN4. Indeed, the memorandum filed in support of its motion to strike demonstrates the hospital's knowledge of the relationship between it and IPG and Drs. Goldberg and Wipfler.   See Memorandum in Support of Amended Motion to Strike (# 121), 2 (June 15, 2011).

Shortall, Joseph M., J.T.R.