Diane M. Buchanan et al. v. Greenwich Hospital (2011)

MEMORANDUM OF DECISION ON DEFENANT'S MOTION TO STRIKE (# 219)

Before the court is a motion to strike counts seven through ten ¹ of the plaintiffs' third revised complaint dated May 10, 2011 (# 199), alleging CUTPA claims and corresponding loss of consortium.   The defendant moves to strike these counts on the grounds that the CUTPA claims do not present cognizable claims because the actions taken by the defendant were consistent with public policy, and, therefore, could not have violated CUTPA as a matter of law.   Moreover, according to the defendant, the allegations involve delivery of medical care and not the entrepreneurial aspects related to the practice of medicine, and therefore these allegations cannot state a CUTPA claim under Haynes v. Yale New Haven Hospital, 243 Conn. 17, 35, 699 A.2d 964 (1997).   The plaintiffs have objected to the motion to strike (# 249) and the defendant has filed a reply memorandum in support of its motion to strike (# 251).   The court heard oral argument on the motion to strike on October 17, 2011.

PROCEDURAL HISTORY AND FACTS

According to the complaint, Dr. Ian M. Rubins was a plastic surgeon who was granted privileges to perform surgeries at Greenwich Hospital and the Greenwich Hospital Breast Center (collectively the defendants or the hospital).   Since 1997, the hospital was aware of Dr. Rubins' chronic drug and alcohol addiction and abuse.   The plaintiffs Diane M. Buchanan and Scott J. Buchanan (referred to individually as plaintiff or Mrs. Buchanan or collectively as plaintiffs or Buchanans) allege that the hospital engaged in unfair and deceptive trade practices by promoting the surgical services of Dr. Rubins while concealing from the public its knowledge about his history of drug and alcohol addiction.

The amended complaint ² contains ten counts alleging medical malpractice, negligent credentialing, intentional misrepresentation, as well as violations of the Connecticut Unfair Trade Practices Act (CUTPA) (counts seven and nine), along with corresponding loss of consortium claims on behalf of Mr. Buchanan.   In their complaint, the Buchanans include the following allegations.   Greenwich Hospital is a 174–bed hospital located in Greenwich, Connecticut.   The Greenwich Hospital Breast Center is a satellite facility operated by Greenwich Hospital.   Dr. Rubins was a plastic surgeon granted privileges by Greenwich Hospital to perform surgeries at both Greenwich Hospital and its Breast Center.   Dr. Rubins engaged in a joint venture with the hospital;  for each breast surgery that occurred, the participants in the joint venture provided services and shared in the resulting profits.   Greenwich Hospital promoted the services of Dr. Rubins and the Breast Center to patients in need of treatment for breast cancer and reconstructive or cosmetic plastic surgery of the breast.   Between January 24, 2006, and December 12, 2006, Mrs. Buchanan underwent surgeries performed by Dr. Rubins at Greenwich Hospital and/or the Breast Center.   While a patient at the hospital, Mrs. Buchanan suffered severe and permanent injuries.   On January 23, 2008, Dr. Rubins was found dead of a heroin overdose.   The Buchanans subsequently learned that the hospital had knowledge of Dr. Rubins' chronic substance abuse since 1997.   The hospital had concealed its knowledge of Dr. Rubins' substance abuse history from patients, and made affirmative representations in its promotional marketing materials regarding Dr. Rubins that were untrue and inconsistent with its knowledge.   Further factual allegations pertinent to the motion to strike will be set forth as necessary.

DISCUSSION

A motion to strike challenges the legal sufficiency of a pleading.   Practice Book § 10–39;  Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985).   In ruling on a motion to strike, the trial court is limited to considering only those facts alleged in the pleading challenged.  King v. Board of Education, 195 Conn. 90, 93, 486 A.2d 1111 (1985).   The motion admits all well-pleaded facts, but does not admit any legal conclusions or the truth or accuracy of any opinions.  Doe v. Yale University, 252 Conn. 641, 694, 748 A.2d 834 (1980).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”   Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).   The burden of alleging a recognizable cause of action rests upon the plaintiff.  McAnerney v. McAnerney, 165 Conn. 277, 282, 334 A.2d 437 (1973).  “If the pleading fails to establish a valid cause of action, a court shall grant a motion to strike the offending claims.”  (Citation omitted.)  Keane v. Fischetti, 300 Conn. 395, 402, 13 A.3d 1089 (2011).

In counts seven and nine, Mrs. Buchanan alleges that the conduct of the hospital violated CUTPA, General Statutes § 42–110a et seq.   In count seven, the plaintiff alleges that the conduct of the hospital “constitutes unfair acts and practices.”   In count nine, she alleges that the conduct “constitutes deceptive acts and practices.”   Counts eight and ten allege corresponding loss of consortium claims on behalf of Mr. Buchanan.

I

CUTPA

CUTPA provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.   It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers ․ All three criteria do not need to be satisfied to support a finding of unfairness.”  (Internal quotation marks omitted.)  Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350, 994 A.2d 153 (2010).

A

Unfair Acts and Practices Offending Public Policy

Count seven alleges ³ that the hospital violated CUTPA because its conduct:

(1) offends the public policy of Connecticut as established by statutes, the common law, statutory or other established concepts of unfairness, specifically, in that:

a) the public policy of this state as embodied in the common law prohibits a hospital to knowingly allow a drug and/or alcohol impaired physician to provide unsupervised care and/or treatment to a patient;

b) the public policy of this state as embodied in the common law prohibits a hospital to fail to report a drug and/or alcohol impaired physician to the state of Connecticut;

c) the public policy of this state as embodied in the common law prohibits a hospital to charge for services provided by a drug and/or alcohol impaired physician;

d) the public policy of this state as embodied in the common law prohibits a hospital to promote the services of a drug and/or alcohol impaired physician;

e) the public policy of this state as embodied in the Connecticut General Statutes §§ 20–13a et seq. requires a hospital to timely file a petition with the department of public health when the hospital has information which appears to show that a physician, in this case Dr. Rubins, is or may be unable to practice medicine with reasonable skill or safety for any of the reasons listed in § 20–13c;

(2) is immoral, unethical, oppressive or unscrupulous;  and or

(3) causes substantial injury to consumers.

The hospital moves to strike count seven on the ground that “the alleged actions by the Hospital were consistent with public policy, and therefore, could not have violated CUTPA as a matter of law.”   The hospital argues that “the State's public policy did not impose a duty on the Hospital to disclose Dr. Rubins' substance abuse history and treatment to his patients under the circumstances of this case.   To the contrary, the State's public policy required the hospital to maintain the confidentiality of Dr. Rubins' substance abuse treatment.”   The plaintiffs contend, on the other hand, that their allegations are sufficient to state a CUTPA claim because public policy required the hospital to report an impaired physician to the state of Connecticut as well as file a petition with the state department of public health (supra, count seven, ¶ 26, 1(b) and (e)) when the hospital had information about Dr. Rubins' substance abuse.   They argue that “[t]his public policy—to protect the public by investigating and taking necessary disciplinary action against a physician—does not rely on any duty to disclose a physician's misconduct to patients.”   They allege in their complaint that they would have found information regarding Dr. Rubins' drug addiction relevant in assessing the hospital's marketing claims and the decision to undergo surgery performed by Dr. Rubins at the hospital.

The parties' arguments whether the public policy encompassed by General Statutes §§ 20–13a et seq. allows count seven to withstand a motion to strike are equally unpersuasive.   The defendant's motion relies on a duty of confidentiality prohibiting the hospital from disclosing Dr. Rubins' substance abuse history, when such an argument has no place in a motion to strike.   The hospital's argument on its face relies on facts outside of the complaint and is better pleaded as a special defense.   The plaintiffs on the other hand have not informed the court about any direct relationship between the mandates of §§ 20–13a et seq., or any other alleged reporting requirement, and the harm allegedly suffered by them.   Stated another way, there is no allegation in the complaint that the hospital did not report Dr. Rubins to a state agency, and that such reporting would have obviated plaintiffs' injuries.   Moreover, the other public policy offenses alleged in count seven all assume that the doctor was “impaired” at the time of the wrongful act which caused harm, and there is no allegation in the complaint that Dr. Rubins was ever “impaired” when he performed surgery or otherwise provided treatment to Mrs. Buchanan.⁴  The defendant obfuscates these points by shielding itself behind its confidentiality defense;  it does note that after several attempts, “the third revised complaint [# 199] still does not set forth a valid state public policy for this [CUTPA] claim, [and] the Hospital has opted to file this motion to strike.   Plaintiffs' inability to identify the alleged public policy supporting their claim after four tries is solid evidence that the claimed public policy simply does not exist.”   Memorandum in Support of Motion to Strike, n.2. The public policy offenses alleged in the complaint lack any causal connection between the hospital's alleged wrongdoing and any resulting harm,⁵ beyond pure speculation.   Although CUTPA is a remedial statute due broad interpretation by the court, “[t]he plain language of 42–110g(a) provides one limitation by requiring that the plaintiff suffer an ascertainable loss that was caused by the alleged unfair trade practice.”  (Emphasis added.)   Haesche v. Kissner, 229 Conn. 213, 223–24, 640 A.2d 89 (1994).  “The language ‘as a result of’ [in General Statutes § 42–110g(a) ] requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff.”  (Citations omitted.)  Scrivani v. Vallombroso, 99 Conn.App. 645, 651–52, 916 A.2d 827, cert. denied, 82 Conn. 904, 920 A.2d 309 (2007).   Where the pleadings fail to allege a link between a claimed violation of public policy and the harm allegedly suffered by the plaintiff, as in the present case, then a CUTPA cause of action cannot stand in a fact pleading state such as Connecticut.   See Practice Book § 10–1.   Even though pleadings should be read broadly and realistically, “essential allegations may not be supplied by conjecture or remote implication ․” (Internal quotation marks omitted.)   Forte v. Citicorp Mortgage, Inc., 66 Conn.App. 475, 484–85, 784 A.2d 1024 (2001).   Accordingly, the motion to strike is granted as to count seven and its corresponding loss of consortium claim at count eight.

B

Entrepreneurial/Business Aspects of Medical Practice

In addition to claiming that its alleged actions were not unfair or deceptive under any established public policy or common law, the hospital moves to strike both of the CUTPA claims on the grounds that the complaint fails to set forth a sufficient claim under CUTPA because the hospital's conduct involved the delivery of medical care at the hospital, rather than any entrepreneurial or business activity.   The Buchanans counter that the hospital's conduct in affirmatively advertising and promoting the surgical services of Dr. Rubin as a top breast specialist, despite knowing that he was a chronic drug addict, constitutes an unfair or deceptive practice.   The Buchanans claim that their allegations are related to the entrepreneurial or business aspect of the hospital's medical practice, rendering them sufficient to state a cognizable CUTPA claim.

Count nine of the complaint presents the second CUTPA claim by the Buchanans.   Count nine incorporates the entirety of count seven, which again incorporates paragraphs 1 through 24 of the medical malpractice claim in count one.   The Buchanans allege in count nine that the provisions of CUTPA apply to them because the conduct of the hospital involves misrepresentations and omissions likely to mislead.

The “touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services is implicated, aside from medical competence or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel.”  Haynes v. Yale–New Haven Hospital, 243 Conn. 17, 38, 994 A.2d 153 (1997) (appeal from a summary judgment).   Thus, the Supreme Court has recognized that the practice of medicine may give rise to a consumer protection claim under CUTPA, but “only when the actions at issue are chiefly concerned with entrepreneurial aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the competence and strategy employed ․” (Internal quotations omitted;  emphasis added.)   Id., 35–36.   In Haynes, the plaintiff's decedent died while undergoing emergency surgery following a car accident.   The basis for the CUTPA claim brought along with a medical malpractice claim against the hospital was that the hospital had committed an unfair trade practice in deceptively holding itself out as a major trauma center.   In an emergency situation following a car crash, did the plaintiff's decedent really consider whether this hospital (Yale–New Haven) marketed itself in any manner?   What was the connection between the hospital's marketing strategy and the decedent's death?   There was none.   The Haynes court does not specifically address this point in its decision, but the conclusion is obvious.   Allegations of a CUTPA violation against a healthcare provider must be viewed in the bright light of proximate cause because it is unfair to view the practice of medicine as interchangeable with consumer protection against unscrupulous commercial endeavors.  Id., 36.  “Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation.   To hold otherwise would transform every claim for medical malpractice into a CUTPA claim.”  Id., 38.

In the present case, the Buchanans claim that the hospital's “promotion of its Breast Center and Dr. Rubins was entrepreneurial and business activity designed to increase the Hospital's business and profits” and that the conduct was unfair and/or deceptive.   In support, the Buchanans make the following allegations.   Greenwich Hospital advertised the Breast Center and Dr. Rubins to patients in need of treatment for breast surgery.   Greenwich Hospital promoted the Breast Center and Dr. Rubins in various ways, including, inter alia, publishing a newsletter describing the Breast Center as a top facility for treatment, maintaining a website describing the Breast Center as having combined the “newest technology and a team of top breast specialists into one comprehensive Breast Center,” and sponsoring a radio program and public open houses.   The hospital undertook these promotional activities “because the Breast Center was a lucrative part of the Hospital's operations” and the hospital “directly profited from its unfair acts and practices by directing additional business to itself and/or its profitable Breast Center.”   Further, the hospital promoted Dr. Rubins despite knowing that “Dr. Rubins was not a ‘top breast specialist’ but rather a chronic drug addict.”   The hospital concealed its knowledge of Dr. Rubins' drug addiction from patients, and made untrue statements in marketing the Breast Center, despite knowing that Dr. Rubins' drug addiction would have been relevant in patients' decisions as to whether to undergo surgery by Dr. Rubins at the hospital.

In Janusauskas v. Fichman, 264 Conn. 796, 811, 826 A.2d 1066 (2003), the Supreme Court acknowledged that “advertising, independent of treatment, clearly can be an entrepreneurial aspect of the practice of medicine ․ In Janusauskas, which is an appeal of a directed verdict, a patient unsatisfied after eye surgery claimed that advertisements describing his ophthalmologist as “one of the country's leading doctors in his field” was an entrepreneurial aspect of medical practice and constituted unfair and deceptive trade under CUTPA.  Id., 810.   Thus in Janusaukas there is an element of reliance on advertising that drew the plaintiff patient to the doctor.   However, the court found that the representation did not fit within the definition of an unfair or deceptive act in medical practice under CUTPA because the “statement simply represents to the public that the defendant will meet the standard of care applicable to a ‘leading doctor.’  ․ If the defendant fails to meet this standard of care and harm results, the remedy would be based upon malpractice, and not upon CUTPA.”  Id. Stated another way, a willing patient's disappointment with the outcome of a medical procedure permits a claim for medical malpractice but not CUTPA, unless there is something more.

In the CUTPA claims before this court we are presented with the dichotomy of a willing patient and an allegedly bad result which is being blamed on deceptive advertising.   The plaintiffs fail to allege how the advertising in and of itself encouraged or persuaded them to avail themselves of the services offered by the defendant.   They fail to allege how they came to use the defendant's services versus some other facility.   There is a void in the pleading where the proximate cause should be.   That the hospital chose to promote Dr. Rubins as part of a “team of top breast specialists,” despite its knowledge of his substance abuse history, only speaks to the hospital's determination about the medical competence of Dr. Rubins and his ability to meet a standard of care applicable to a “top breast specialist.”   This type of subjective professional judgment by a hospital about the medical competence of a doctor is not actionable under CUTPA;  it is more appropriately tested as a malpractice claim.   See Janusauskas v. Fichman, supra, 264 Conn. 810.

Further, the allegations that the hospital “directly profited from its unfair acts and practices by directing additional business to itself and/or its profitable Breast Center,” without more, does not make this activity chiefly entrepreneurial.   The Supreme Court has made clear that profit considerations do not automatically work to transform medical judgment into entrepreneurial activity, as profit motives may encompass innumerable activities.   See Suffield Development Associates, L.P. v. National Loan Investors, L.P., 260 Conn. 766, 782–83, 802 A.2d 44 (2002) (rejecting interpretation of entrepreneurial activity under CUTPA to include any decision which includes financial considerations or profit motive).   Furthermore, the Buchanans' allegations that the hospital concealed its knowledge of Dr. Rubins' drug addiction from patients, despite knowing it would have been relevant to patient decisions-making about the risks and hazards in undergoing surgery at its Breast Center, are, as currently pleaded, more properly considered as an issue of informed consent, not a CUTPA claim.   See Janusauskas v. Fichman, supra, 264 Conn. 810–11 (Citations omitted;  internal quotations marks omitted.)   (“Informed consent requires a physician to provide the patient with the information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy ․ [If] these representations fail to satisfy the requirement of informed consent, and harm results, the remedy would be based upon malpractice, and not CUTPA”).

A court must “review the plaintiff's allegations of CUTPA violations and look to the underlying nature of the claim to determine whether it is really a medical malpractice claim recast as a CUTPA claim.”  Haynes v. Yale–New Haven Hospital, supra, 243 Conn. 38.   In reviewing the complaint in the light most favorable to the Buchanans, the allegations about the hospital's misconduct raised in the CUTPA counts are in substance claims of poor judgment, i.e., medical malpractice.   The allegations as they currently are pleaded are not sufficient to support a CUTPA cause of action because they are chiefly concerned with the hospital's determinations regarding the medical competence and capability of Dr. Rubins, not any entrepreneurial or business aspects of the hospital's medical practice proximately causing the plaintiffs' harm.

CONCLUSION

The motion to strike counts seven and nine is granted.   Counts eight and ten also are stricken as derivative consortium claims.

AGATI, J.

FOOTNOTES

FN1. This decision analyzes only the motion to strike counts seven through ten alleging violations of CUTPA and corresponding loss of consortium claims.   The defendant hospital also moved to strike counts five and six alleging intentional misrepresentation and corresponding loss of consortium;  however, the motion to strike as to those counts was withdrawn on December 14, 2011 (# 219.10)..  FN1. This decision analyzes only the motion to strike counts seven through ten alleging violations of CUTPA and corresponding loss of consortium claims.   The defendant hospital also moved to strike counts five and six alleging intentional misrepresentation and corresponding loss of consortium;  however, the motion to strike as to those counts was withdrawn on December 14, 2011 (# 219.10).

FN2. The third revised complaint dated May 10, 2011 (# 199), was subsequently revised by the plaintiffs on September 22, 2011.   The only modification made to the complaint (# 199) was in one sentence in paragraph 26(1)(e) of count seven which was changed to reflect the word “prohibits” in place of “requires.”   There was no objection to the amendment.   The change was merely to correct a scrivener's error.   Accordingly, this decision analyzes paragraph 26(1)(e) of count seven as it appears in the September 22, 2011 amended complaint (# 248), which is the operative complaint..  FN2. The third revised complaint dated May 10, 2011 (# 199), was subsequently revised by the plaintiffs on September 22, 2011.   The only modification made to the complaint (# 199) was in one sentence in paragraph 26(1)(e) of count seven which was changed to reflect the word “prohibits” in place of “requires.”   There was no objection to the amendment.   The change was merely to correct a scrivener's error.   Accordingly, this decision analyzes paragraph 26(1)(e) of count seven as it appears in the September 22, 2011 amended complaint (# 248), which is the operative complaint.

FN3. Count seven incorporates paragraphs 1 through 24 of count one which claims medical malpractice..  FN3. Count seven incorporates paragraphs 1 through 24 of count one which claims medical malpractice.

FN4. The allegations in count seven that the hospital “knowingly allowed a drug/or alcohol impaired physician to provide unsupervised care and/or treatment to a patient,” “promoted the services of a drug and/or alcohol impaired physician,” and “charged for services provided by a drug and/or alcohol impaired physician” also concern decisions by the hospital about the medical competence of Dr. Rubins—decisions that “do not fall within the ambit of CUTPA.”  Harris v. Bradley Memorial Hospital and Health Center, supra, 296 Conn. 351.   The defendant does not directly attack these allegations in its motion;  however, the defendant does address, generally, the CUTPA exemption for professional services, which the court will discuss below..  FN4. The allegations in count seven that the hospital “knowingly allowed a drug/or alcohol impaired physician to provide unsupervised care and/or treatment to a patient,” “promoted the services of a drug and/or alcohol impaired physician,” and “charged for services provided by a drug and/or alcohol impaired physician” also concern decisions by the hospital about the medical competence of Dr. Rubins—decisions that “do not fall within the ambit of CUTPA.”  Harris v. Bradley Memorial Hospital and Health Center, supra, 296 Conn. 351.   The defendant does not directly attack these allegations in its motion;  however, the defendant does address, generally, the CUTPA exemption for professional services, which the court will discuss below.

FN5. The plaintiff incorporates into her CUTPA counts the damages alleged in her medical malpractice claim in count one alleging injuries and damages “as a result of the carelessness and negligence of Greenwich Hospital.”.  FN5. The plaintiff incorporates into her CUTPA counts the damages alleged in her medical malpractice claim in count one alleging injuries and damages “as a result of the carelessness and negligence of Greenwich Hospital.”

Agati, Salvatore C., J.