Robert Pease v. The Charlotte Hungerford Hospital et al. (2013)

MEMORANDUM OF DECISION

This is a medical malpractice action.   Before the court is the defendant's motion to strike the plaintiff's informed consent count on the grounds that (1) the plaintiff did not assert that he would not have undergone the procedure had he been informed of the risks and (2) the defendant did not owe a duty to the plaintiff.   For the reasons given, the motion to strike must be denied.

I

FACTS

On January 30, 2013, the plaintiff, Robert Pease, filed a three-count revised complaint against the defendant, The Charlotte Hungerford Hospital, alleging negligence, lack of informed consent and corporate negligence.   The complaint alleges the following relevant facts.   On February 2, 2010, at approximately 12:34 p.m., the plaintiff, who had a history of urethra strictures and an enlarged prostate, went to the defendant's emergency room complaining of difficulty voiding.   At approximately 1:36 p.m., Kateri Veillette, a registered nurse employed by the defendant, inserted a # 16 French Coude catheter into the plaintiff.   Thereafter, at approximately 3:24 p.m., Veillette removed the catheter and inserted a different 3–way Foley catheter, causing the plaintiff immediate pain and discomfort.   Upon being discharged from the defendant that same day, the plaintiff continued to have increased pain and discomfort in his urethra and surrounding areas.

On February 3, 2010,¹ the plaintiff reported to the V.A. Hospital in West Haven, Connecticut with continued pain and discomfort in his urethra and surrounding area.   The plaintiff continued to treat with the V.A. Hospital for the injury to his urethra.

On February 13, 2013, the defendant filed the present motion to strike count two, alleging lack of informed consent, on the grounds that (1) the plaintiff did not assert that he would not have undergone the procedure had he been informed of the risks and (2) the defendant did not owe a duty to the plaintiff.   The plaintiff filed an objection on March 6, 2013, to which the defendant filed a reply on March 26, 2013.   This matter was heard on the April 22, 2013 short calendar.

II

DISCUSSIONAMotion to Strike Standard

“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 takes] the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ 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).

B

Parties' Arguments

The defendant moves to strike the second count of the plaintiff's complaint, sounding in informed consent, on the grounds that (1) the plaintiff failed to state a cause of action for informed consent because the complaint does not allege that the plaintiff would not have undergone the procedure had he been informed of the risks, alternatives and benefits;  and (2) the defendant did not owe a duty to the plaintiff to ensure informed consent.   According to the defendant, Connecticut courts have consistently held that hospitals do not have a duty to obtain a patient's informed consent to surgical procedures and treatment.   Rather, that disclosure is uniquely a physician's duty.   In support of its position, the defendant primarily relies on Petriello v. Kalman, 215 Conn. 377, 576 A.2d 474 (1990), and Sherwood v. Danbury Hospital, 278 Conn. 163, 896 A.2d 777 (2006).

In contrast, the plaintiff asserts that the defendant has mischaracterized Petriello and Sherwood, contending, instead, that these cases make it abundantly clear that a hospital is absolved of the duty to obtain informed consent only when the offending treater is a nonemployee of the defendant facility.   According to the plaintiff, in the present case, the nurse and the supervising emergency physician were both employees of the defendant, not outside third parties with mere privileges with the defendant.

In reply, the defendant argues that nurses do not owe a duty to obtain informed consent and, therefore, the defendant's liability cannot be based on any alleged failure by Veillette to obtain informed consent.   The defendant notes that count two names Veillette, only, and does not name any other agent of the defendant.   The defendant further argues that the plaintiff misreads Petriello and Sherwood, asserting that, in those cases, our Supreme Court did not “absolve” the hospital of any duty because it never had one in the first place and the court never made a distinction between employee and nonemployee physicians because that was not the basis for the decisions.   According to the defendant, in Petriello, our Supreme Court explicitly stated that it is the duty of the physician, not the hospital, to obtain informed consent by virtue of the physician's relationship with the patient.   The defendant argues that the Supreme Court could have narrowed its opinions to nonemployee physicians, but chose not to do so.   Rather, according to the defendant, our Supreme Court has held that nurses and hospitals never owe a duty to provide informed consent.

Alternatively, the defendant argues that, if this court agrees with the plaintiff that Petriello and Sherwood apply only to nonemployees, count two should still be stricken as the plaintiff does not allege that his treating physician was an agent of the hospital, and, in fact, the complaint is devoid of any mention of a physician.

C

Analysis1Proximate Cause

The defendant's first argument is that the plaintiff failed to state a claim of informed consent because the complaint does not allege that the plaintiff would not have undergone the procedure had he been informed of the risks.   This amounts to an argument that the plaintiff failed to allege that the failure to adequately advise him was the proximate cause of his injuries.

“In order to prevail on a cause of action for lack of informed consent, a plaintiff must prove both that there was a failure to disclose a known material risk of a proposed procedure and that such failure was a proximate cause of his injury.”  Shortell v. Cavanagh, 300 Conn. 383, 388, 15 A.3d 1042 (2011).

Count two alleges that, as a result of the defendant's negligence and that of its agents, servants and employees, the plaintiff suffered injury to his urethra as well as extreme pain and discomfort.   This allegation sufficiently alleges that the failure to obtain his informed consent was the proximate result of his injuries.   See Lombardi v. J.A. Bergren Dairy Farms, Inc., 153 Conn. 19, 22–23, 213 A.2d 449 (1965) (although complaint did not contain express allegation of proximate cause, it did allege specific acts of negligence followed by an express allegation that the plaintiff was injured as a result of the negligence of the defendant);  Torres v. Carrese, Superior Court, judicial district of Fairfield, Docket No. CV 06 5011368 (January 3, 2012, Levin, J.) (denying motion to strike informed consent count where count listed specifications of medical negligence followed by allegations that injuries were caused by the defendant's negligence).

2

Duty of Care

The defendant's second argument is that it did not owe a duty to the plaintiff to ensure informed consent as that is uniquely a physician's duty.

In Petriello v. Kalman, supra, 215 Conn. 385, our Supreme Court held that a hospital has no duty with respect to obtaining a patient's informed consent for a surgical procedure to be performed by a nonemployee physician.   In that case, the physician was an independent physician with attending privileges at the hospital.   Id., 379 n.1. In finding no duty, the court explained that “there was no evidence of any involvement by a physician employed by the hospital prior to the start of the surgical procedure and [because the plaintiff did] not claim it was the duty of the nurse actually to obtain [the plaintiff's] informed consent ․ the duty to obtain such consent, prior to beginning the surgical procedure, rested wholly upon ․ the plaintiff's attending physician.”  Id., 384–85.  “Under Petriello, therefore, it is solely the responsibility of the nonemployee treating physician, and not the duty of the hospital, to inform the patient of the risks and benefits of, and alternatives to, a proposed medical procedure, and to obtain the patient's informed consent before performing any such procedure.”  (Emphasis added.)  Sherwood v. Danbury Hospital, supra, 278 Conn. 185–86.   Our Supreme Court has recognized the limitation of its holding in Petriello, noting that “our inquiry in Petriello into the involvement of hospital employees in the patient's preoperative care simply was for the purpose of ruling out [the hospital's] vicarious liability for any failure by an employee to obtain informed consent ․ [I]n Petriello, we left open the possibility that extensive involvement of a hospital-employed nurse or physician in the patient's preoperative care might give rise to a vicarious duty on the part of the hospital to obtain informed consent ․” (Citation omitted.)  Sherwood v. Danbury Hospital, supra, 184–85 n.19.

Thus, contrary to the defendant's assertions, whether a physician is an employee or nonemployee of a hospital is a relevant consideration.   In fact, this distinction has been noted by our Superior Courts.   Jacobs ex rel. Jacobs v. Kirshenbaum, Superior Court, judicial district of Hartford, Docket No. CV 02 0818386 (February 2, 2004, Hennessey, J.) (“Connecticut courts generally hold that a hospital does not owe a patient a duty to inform when the patient is treated by a physician who is neither an employee nor agent of the hospital”);  McCord v. Salib, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 98 0167783 (February 24, 1999, D'Andrea, J.) (24 Conn. L. Rptr. 86);  Smith v. Gaynor, 41 Conn.Sup. 540, 591 A.2d 834 [3 Conn. L. Rptr. 264] (1991);  see also Rice v. Fotovat, Superior Court, judicial district of Fairfield, Docket No. CV 97 0345122 (January 16, 2003, Doherty, J.) (34 Conn. L. Rptr. 8) (hospital's motion for summary judgment on informed consent count denied because there was a genuine issue of material fact as to whether surgical resident was an employee of the hospital).

Accordingly, a more accurate statement of the law relevant to the present case is that “[a] hospital [is] not ․ liable for failure to obtain informed consent unless the attending physician [is] an employee or agent of the hospital.”  (Emphasis added.)  Smith v. Gaynor, supra, 41 Conn.Sup. 544;  see Petriello v. Kalman, supra, 215 Conn. 385;  Shenefield v. Greenwich Hospital Association, 10 Conn.App. 239, 242, 522 A.2d 829 (1987) (a hospital through its agents is required to obtain consent prior to surgery);  Jacobs ex rel. Jacobs v. Kirshenbaum, supra, Superior Court, Docket No. CV 02 0818386 (motion to strike lack of informed consent count granted where plaintiff did not allege that physician was an agent or employee of hospital);  Cole v. Angeluzzi, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 01 0185027 (June 27, 2002, Rogers, J.) (32 Conn. L. Rptr. 435, 436) (rejecting hospital's argument that it had no duty to the plaintiff because “it is a physician's responsibility to obtain informed consent,” noting that it was “not persuaded ․ that the plaintiff [could] [not] bring a direct claim against the hospital” where agency was alleged);  Harrison v. Hamzi, Superior Court, judicial district of Waterbury, Docket No. CV 99 0152424 (November 17, 1999, Pellegrino, J.);  McCord v. Salib, supra, 24 Conn. L. Rptr. 86.

The defendant argues that, even if this court determines that Petriello and Sherwood apply only to nonemployees, count two should be stricken because the plaintiff does not allege that any provider who treated him was an agent of the hospital and, therefore, the defendant cannot be held vicariously liable for the unidentified agent who allegedly failed to provide informed consent.²

In the present case, count two alleges that Veillette, a registered nurse employed by the defendant, catheterized the plaintiff twice, causing the plaintiff immediate pain and discomfort.   The count further alleges that, as a result of the defendant's negligence and that of its agents, servants and employees, the plaintiff suffered injury to his urethra as well as extreme pain and discomfort.   The complaint is devoid of any allegations concerning the treating physician, including his or her name and whether he or she was a nonemployee of the defendant.   The first mention of the treating physician comes in the plaintiff's memorandum of law in opposition to the motion to strike where the plaintiff identifies Dr. Schmidt as the supervising emergency physician.   The plaintiff's memorandum of law asserts that both Dr. Schmidt and Nurse Veillette were employees of the defendant.

In support of its position, the defendant primarily relies on Hill v. Jabbour, Superior Court, judicial district of New Haven, Docket No. CV 09 6006300 (April 4, 2011, Alexander, J.), and Strickland v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV 09 5014599 (March 23, 2011, Young, J.) (51 Conn. L. Rptr. 592), in which the courts, relying on Hollister v. Thomas, 110 Conn.App. 692, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008), granted motions to strike medical negligence claims against a hospital on the ground that the plaintiff failed to allege the facts necessary to prove the existence of an agency relationship between the hospital and the treating physician.

“Neither our Supreme Court nor the Appellate Court has yet to specifically address the issue of whether an allegation for the malpractice of unnamed agents, representatives and employees of a hospital is sufficient to state a cause of action sounding in vicarious liability absent a statement of facts evidencing an agency relationship.   Nevertheless, various judges of the Superior Court have addressed the issue, although inconsistently, resulting in a split of nonbinding authority.   In two of those cases, the trial court granted motions to strike because the plaintiff failed to allege the elements of agency:  Hill v. Jabbour, Superior Court, judicial district of New Haven, Docket No. CV 09 6006300 (April 4, 2011), and 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).   On the other hand, the majority of trial court decisions have denied motions to strike based on this issue ․” (Citations omitted;  internal quotation marks omitted.)   Gagnon v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV 11 6012982 (February 19, 2013, Swienton, J.) [55 Conn. L. Rptr. 576];  see Newburry v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV 11 6010996 (April 5, 2012, Swienton, J.) (53 Conn. L. Rptr. 690);  Trimm v. Kasir, Superior Court, judicial district of New Britain, Docket No. CV 11 6009059 (November 30, 2011, Shortall, J.T.R.) (53 Conn. L. Rptr. 35);  Ryan v. Litchfield Hills Orthopedic Associates, LLP, Superior Court, judicial district of Litchfield, Docket No. CV 08 5003164 (May 26, 2009, Ginocchio, J.).

In Gagnon, the court rejected the reasoning of Hill and Strickland as those cases erroneously relied on the Appellate Court's ruling in Hollister v. Thomas, supra, 110 Conn.App. 692 in that “Hollister focused on individuals, not corporations.   Specifically, the issue before the Appellate Court was whether an individual was liable for the actions of another individual under a theory of vicarious liability.”  Gagnon v. Bristol Hospital, Inc., supra, Superior Court, Docket No. CV 11 6012982.   The Gagnon court concluded “that an allegation for the alleged malpractice of unnamed agents, representatives, and employees of a hospital is sufficient to state a cause of action sounding in vicarious liability without a statement of facts evidencing the agency relationship.”  (Internal quotation marks omitted.)  Gagnon v. Bristol Hospital, Inc., supra.   The court explained that “the plaintiff is suing a corporate entity, not an individual.   It is not necessary to allege in a complaint that an act performed by a corporate defendant was performed by an agent, nor is it necessary to allege in the complaint that the agent had authority to act.”  Id.;  see Centreal Co v. Industrial Bank of Hartford, 9 Conn.Sup. 208, 208–09 (1941) citing Vincent v. Alexander's Sons Co., 85 Conn. 512, 516, 84 A. 84 (1912) (“[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”);  see also Newburry v. Bristol Hospital, Inc., supra, 53 Conn. L. Rptr. 691–92;  Trimm v. Kasir, supra, 53 Conn. L. Rptr. 37 (“[b]y 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”);  Odei v. Saint Mary's Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 10 6004320 (March 9, 2011, Trombley, J.) (allegations sufficiently provide notice to hospital of agency claim);  McRoberts v. Mortman, Superior Court, judicial district of Litchfield, Docket No. CV96 0072497 (October 2, 1997, Pickett, J.) (although count did not explicitly allege an agency relationship, it did allege that “[s]aid injuries were caused by the failure of [the hospital] and its servants, agents and/or employees to obtain the plaintiff's informed consent” which “sufficiently alleged that on the basis of an employee or agency relationship the hospital may be liable for failure to obtain informed consent”).

In Trimm v. Kasir, supra, 53 Conn. L. Rptr. 37, the court explained why it found the reasoning of Hill v. Jabbour, supra, Superior Court, Docket No. CV 09 6006300 and Strickland v. Bristol Hospital, Inc., supra, 51 Conn. L. Rptr. 592 to be unpersuasive:  “In effect, [these cases] 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.’   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.”   (Citation omitted;  emphasis in original.)

Furthermore, “[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.”   Figueroa v. Donahue, Superior Court, judicial district of New Britain, Docket No. 08 5006789 (October 27, 2009, Swienton, J.);   see Fontaine v. Clement, Superior Court, judicial district of Waterbury, Docket No. CV 07 5005261 (April 13, 2009, Brunetti, J.) (“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”).

This court, following what it believes to be the more persuasive authority, rejects the defendant's argument that the allegations for lack of informed consent by unnamed agents, representatives, and employees is insufficient to state a cause of action sounding in vicarious liability without a statement of facts evidencing the agency relationship.³  Reading count two 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 ⁴ failed to provide the plaintiff with sufficient information regarding risks, benefits and alternatives to the course of care and treatment to be provided so as to allow the plaintiff to make an informed decision as to whether he consented to such care and treatment.   “[T]hat 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.”  Ryan v. Litchfield Hills Orthopedic Associates, LLP, supra, Superior Court, Docket No. CV 08 5003164.   Finally, “[t]he [defendant] will not suffer any prejudice or surprise, especially because [it][is] in the best position to know, at this point, which of [its] employees or agents were involved in the plaintiff's ․ care during the relevant time period.”  (Internal quotation marks omitted.)  Trimm v. Kasir, supra, 53 Conn. L. Rptr. 38.

III

CONCLUSION

This court must construe the allegations in the complaint in a light most favorable to sustaining the complaint's legal sufficiency.   Therefore, this court finds that count two sufficiently alleges that the defendant may be liable for the failure to obtain informed consent on the basis of an employee or agency relationship.   For the foregoing reasons, the motion to strike count two of the plaintiff's revised complaint is denied.

BY THE COURT,

John W. Pickard

FOOTNOTES

FN1. The complaint alleges the date to be “February 3, 2011,” but it is the court's understanding that this is a typographical error and the accurate date is “February 3, 2010.”.  FN1. The complaint alleges the date to be “February 3, 2011,” but it is the court's understanding that this is a typographical error and the accurate date is “February 3, 2010.”

FN2. The defendant contends that a nurse owes no duty to obtain informed consent and cites a multitude of cases in support of that position.   This court need not address this issue as the plaintiff's complaint alleges only that an unnamed employee or agent of the hospital failed to obtain informed consent..  FN2. The defendant contends that a nurse owes no duty to obtain informed consent and cites a multitude of cases in support of that position.   This court need not address this issue as the plaintiff's complaint alleges only that an unnamed employee or agent of the hospital failed to obtain informed consent.

FN3. The defendant offers an alternative argument that, even if a physician is employed by a hospital, there is no agency relationship between a hospital and physician when it comes to the physician's provision of informed consent because physicians have traditionally been viewed as independent contractors.   This inquiry is more appropriate for summary judgment as “[t]he existence of an agency relationship is a question of fact.”  Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543, 893 A.2d 389 (2006).  “[T]he fact that the hospital and the corporation call ․ its physicians ‘independent contractors' [does not] preclude an agency relationship.”   Young Mi Joh v. Schmidt, Superior Court, complex litigation docket at Hartford, Docket No. X09 CV 06 5006361 (December 19, 2007, Shortall, J.) (44 Conn. L. Rptr. 760, 762);  see Custer v. Kurowski, Superior Court, judicial district of New London, Docket No. CV 543040 (January 29, 1999, Hurley, J.) (23 Conn. L. Rptr. 695) (“[c]ourts have concluded that despite the fact that a physician holds independent contractor status with respect to a hospital, he may nevertheless be an agent with respect to the patient” (emphasis in original)).   Moreover, “Connecticut courts have recognized the concept of apparent agency as an appropriate theory for plaintiffs to allege vicarious liability of hospitals for the acts of independent contractors.”   Center v. Kost, Superior Court, judicial district of New Haven Docket No. CV 08 5021444 (August 4, 2011, Wilson, J.) (52 Conn. L. Rptr. 426, 431) (holding that there was “a question of fact as to whether the defendant held out the doctors as employees or agents and whether it was reasonable for the plaintiff to believe that the doctors were agents or employees of the defendant”)..  FN3. The defendant offers an alternative argument that, even if a physician is employed by a hospital, there is no agency relationship between a hospital and physician when it comes to the physician's provision of informed consent because physicians have traditionally been viewed as independent contractors.   This inquiry is more appropriate for summary judgment as “[t]he existence of an agency relationship is a question of fact.”  Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543, 893 A.2d 389 (2006).  “[T]he fact that the hospital and the corporation call ․ its physicians ‘independent contractors' [does not] preclude an agency relationship.”   Young Mi Joh v. Schmidt, Superior Court, complex litigation docket at Hartford, Docket No. X09 CV 06 5006361 (December 19, 2007, Shortall, J.) (44 Conn. L. Rptr. 760, 762);  see Custer v. Kurowski, Superior Court, judicial district of New London, Docket No. CV 543040 (January 29, 1999, Hurley, J.) (23 Conn. L. Rptr. 695) (“[c]ourts have concluded that despite the fact that a physician holds independent contractor status with respect to a hospital, he may nevertheless be an agent with respect to the patient” (emphasis in original)).   Moreover, “Connecticut courts have recognized the concept of apparent agency as an appropriate theory for plaintiffs to allege vicarious liability of hospitals for the acts of independent contractors.”   Center v. Kost, Superior Court, judicial district of New Haven Docket No. CV 08 5021444 (August 4, 2011, Wilson, J.) (52 Conn. L. Rptr. 426, 431) (holding that there was “a question of fact as to whether the defendant held out the doctors as employees or agents and whether it was reasonable for the plaintiff to believe that the doctors were agents or employees of the defendant”).

FN4. The defendant also argues that the plaintiff failed to allege the name, position, title or occupation of the supposed agent responsible for obtaining informed consent.   These omissions, however, do not render count two legally insufficient as the defendant is in the best position to know which of its agents or employees were involved in the patient's care.   See Trimm v. Kasir, supra, 53 Conn. L. Rptr. 38..  FN4. The defendant also argues that the plaintiff failed to allege the name, position, title or occupation of the supposed agent responsible for obtaining informed consent.   These omissions, however, do not render count two legally insufficient as the defendant is in the best position to know which of its agents or employees were involved in the patient's care.   See Trimm v. Kasir, supra, 53 Conn. L. Rptr. 38.

Pickard, John W., J.