Angela Picard et al. v. LLC (2013)

MEMORANDUM OF DECISION ON MOTIONS TO STRIKE

This is an action brought against a nursing facility and related corporate interests (herein after referred to as the “Guilford Defendants”) and its supervising physician, Victor Sawicki, M.D. (hereinafter referred to as “Dr. Sawicki”), for the allegedly negligent and harmful treatment of the decedent, Salvatore Ruotolo.   The action is brought by Mr. Ruotolo's surviving daughters, the plaintiffs Angela Picard and Celia Johnson, both in their representative ¹ and individual capacities.   The revised amended complaint, dated May 2, 2012, has ten counts, nine of which are relevant to the motions before the court.²

Count Two:  (Negligence)

The Second Count incorporates by reference all of the allegations of negligence contained in the First Count, which is a medical malpractice claim brought on behalf of Mr. Ruotolo's estate.   In Paragraph 69, the plaintiffs allege that they “suffered injuries including the loss of the enjoyment and companionship of their father and other emotional and physical injuries.”

Paragraph 69, when read along with the rest of this count, appears to be a claim for loss of parental consortium, or a claim for negligent infliction of emotional distress, or both.   Neither claim is permitted under Connecticut law.

In Mendillo v. Board of Education, 246 Conn. 456, 484–85 (1998), our Supreme Court refused to recognize a cause of action for loss of parental consortium.   No appellate decision has overruled Mendillo.   As the Appellate Court held in Mahoney v. Lensink, 17 Conn.App. 130, 141 (1988), rev'd in part on other grounds, 213 Conn. 548 (1990), “[t]he right to consortium is said to arise out of the civil contract of marriage and as such, does not extend to the parent-child relationship.”

In their opposition briefs, the plaintiffs claim that they are not making a claim for loss of consortium.  “They merely allege loss and enjoyment of the companionship of their father, which is the nature of an emotional injury, but does not rise to the level of a ‘loss of parental consortium’ claim ․” The court disagrees.   Loss of companionship is one of the elements of every loss of consortium claim.   In Hopson v. St. Mary's Hospital, 176 Conn. 485, 487 (1979), the case in which Connecticut first recognized the right to bring an action for loss of consortium, the Court held that loss of companionship is an element of loss of consortium:

The term “consortium” is usually defined as encompassing the services of the wife, the financial support of the husband, and the variety of intangible relations which exist between spouses living together in marriage.  [Citations omitted.]   These intangible elements are generally described in terms of “affection, society, companionship and sexual relations.” [citation omitted These intangibles have also been defined as the “constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage.”  [Citations omitted.]

The court therefore strikes Paragraph 69 of the Second Count as to both defendants.³  The court is well aware that ordinarily, it is improper to move to strike individual paragraphs within a count, except where, as here, the paragraph in question “attempts to state a cause of action.”   MacLean v. Perry, No. CV11–6009597 (New London J.D., February 16, 2012) (Martin, J.) [53 Conn. L. Rptr. 497].

Paragraph 69 of the Second Count might also be construed as an effort to state a cause of action for “bystander emotional distress.”   While this cause of action is generally recognized in Connecticut, such claims are not permitted in medical malpractice actions.   As discussed below, this court finds that plaintiffs have no right to seek recovery for alleged “bystander emotional distress” in this action, and Paragraph 69 of the Second Count is also stricken insofar as it attempts to state such a claim.

Count Three (Negligent Misrepresentation)

The Guilford defendants move to strike the Third Count of the operative complaint on the grounds that (1) the plaintiffs have failed to allege that misrepresentations were made by the Guilford defendants in connection with the plaintiffs' or decedent's business, and (2) the plaintiffs have failed to allege that they suffered a pecuniary loss.   Essentially, the Guilford defendants argue that a claim for negligent misrepresentation is available only to recover economic losses in a business context and that such a claim is not viable when it seeks to recover damages for personal injuries.

Dr. Sawicki also moves to strike the Third Count of the complaint because it is legally insufficient.   Specifically, Sawicki argues that the plaintiffs failed to allege that he supplied false information or that they suffered a pecuniary loss.

The defendants rely heavily on language from 3 Restatement (Second), Torts § 552, p. 126–27 (1977), which provides in relevant part:

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered

(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it;  and

(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.

(3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.

In relying on § 552, the defendants overlook a number of Superior Court cases that have applied 2 Restatement (Second), Torts § 311, p. 106 (1965), to support the proposition that a negligent misrepresentation claim properly may seek to recover damages for personal injuries, including emotional harm.   That section of the Restatement provides:

(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results

(a) to the other, or

(b) to such third persons as the actor should expect to be put in peril by the action taken.

(2) Such negligence may consist of failure to exercise reasonable care

(a) in ascertaining the accuracy of the information, or

(b) in the manner in which it is communicated.

In Schlierf v. Abercrombie, Docket No. X02–CV05–5003467 (Complex Litigation Docket at Waterbury, July 2, 2012) (54 Conn. L. Rptr. 291).   Judge Dooley rejected the defendants' claim that Connecticut law does not recognize negligent misrepresentation claims based on emotional or physical harm, Judge Dooley summarized the other trial court decisions recognizing such claims, including Reed v. Comen, Docket No. CV 94 311292 (Fairfield J.D, November 9, 1994) (Thim, J.), and Craine v. Trinity College, Docket No. CV 95 0555013 (Hartford J.D., December 27, 1999) (Peck, J.), affirmed in part and rev'd in part on other grounds, 259 Conn. 625 (2002).

The court further noted that “our Supreme Court [has] recognized the propriety of awarding damages for emotional distress for fraudulent misrepresentations in Kilduff v. Adams, Inc., [219 Conn. 314 (1991),]” and concluded that “an action for damages resulting from physical harm and emotional distress due to negligent misrepresentations is properly brought.”

This court finds that the third count states a cause of action for negligent misrepresentation against the Guilford defendants.   Specifically, paragraph 67 of the Third Count states that “Guilford House provided false or concealed information,” and goes on to list a series of alleged misrepresentations.   The third count also provides that the “[d]efendants failed to exercise reasonable care in communicating the ․ representations,” that those representations induced Ruotolo and the plaintiffs “to act or not, accordingly,” that Ruotolo and the plaintiffs relied on those representations to their detriment, and that they were injured as a result of the representations.   The motion to strike the Third Count is denied as to the Guilford Defendants.

The Guilford Defendants argue in the alternative that Paragraph 74 of the Third Count should be stricken since it appears to state a claim for bystander emotional distress.

The court agrees with these defendants, and Paragraph 74 is stricken from the Third Count.   As discussed further below, Connecticut does not recognize claims for emotional distress arising from alleged medical malpractice.

Dr. Sawicki correctly notes that the third count does not allege that he, individually, supplied false information to the decedent or the individual plaintiffs.   His motion to strike the Third Count is therefore granted.

Fourth Count (Reckless Misrepresentation)

All of the defendants have moved to strike the Fourth Count.   Dr. Sawicki's motion to strike this count is granted, because the complaint does not allege that he made any misrepresentation to the plaintiffs.⁴

“A claim of reckless or intentional misrepresentation requires the same elements as negligent misrepresentation except that the claimant must prove that the party made the misrepresentation ‘to induce the other party to act upon it.’  Weisman v. Kaspar, 233 Conn. 531, 539, 661 A.2d 530 (1995).   Reckless misrepresentation requires ‘[t]he intent to defraud.’  DeLuca v. C.W. Blakeslee & Sons, Inc., 174 Conn. 535, 546, 391 A.2d 170 (1978).”   Studio Zee, LLC v. The Edge Tattoo Co., Docket No. CV 01–0449758 (New Haven J.D., March 15, 2002) (Zoarski, J.T.R.) [31 Conn. L. Rptr. 701].

The Fourth Count of the complaint incorporates Paragraphs 1 through 67 of the third count, which alleges negligent misrepresentation.   In Paragraph 72, the plaintiffs allege the additional element of inducement, stating that the misrepresentations made by Guilford House were “meant to induce [p]laintiffs into believing [d]ecedent was receiving competent nursing home care in accordance with the law.”   Moreover, Paragraph 73 alleges that the plaintiffs were “induced to act, or not act, accordingly, to their detriment and the detriment of the [d]ecedent ․”

Taking all of the allegations of the Fourth Count as true, for purposes of this motion, the Guilford Defendants' motion to strike it is denied, except for defendants' claim that Paragraph 74 of the Fourth Count should be stricken because it is a bystander emotional distress claim, which is not recognized in Connecticut when it arises from a claim of medical malpractice.

Fifth Count (Patient's Bill of Rights)

The Guilford Defendants have not moved to strike the Fifth Count of the Complaint, which alleges that they violated various provisions of Conn. Gen.Stat. § 19a–550, the “Patient's Bill of Rights.”

Defendant Sawicki has moved to strike the Fifth Count, claiming that the statute does not provide for a private right of action against an individual health care practitioner.  Section 19a–550(e) states, in pertinent part, that

Any facility that negligently deprives a patient of any right or benefit created or established for the well-being of the patient by the provisions of this section shall be liable to such patient in a private cause of action for injuries suffered as a result of such deprivation.

In Woodruff v. Dychiao, Docket No. CV 08 5009435 (New London J.D., September 25, 2009), Judge Martin held that § 19a–550(e) did not create a private right of action against individual health care practitioners and granted a motion to strike by three individual defendants.

The plaintiffs argue that they have no right to bring a 19a–550(e) claim against Dr. Sawicki as an “attending physician,” but that they can bring such an action against him in his capacity as the medical director of the facility.   Plaintiffs have cited no authority which supports their position.   The court finds that § 19a–550(e) does not authorize plaintiffs to sue individual defendants regardless of their relationship to the health care facility in question.   As Judge Martin observed in Woodruff, supra, the General Assembly could have authorized “Patient's Bill of Rights” suits against individual defendants and chose not to.   The legislature could also have permitted such suits against individual defendants with management positions within health care facilities, and did not do so.

Dr. Sawicki's motion to strike the fifth count is granted.

Sixth Count (Unfair Trade Practices)

The defendants move to strike the sixth count of the complaint, alleging a violation of CUTPA, on the ground that the plaintiffs have failed to allege that the defendants' conduct occurred during the course of the entrepreneurial, commercial or business aspects of the practice of medicine.   The plaintiffs object, arguing that a “fair reading” of this count proves otherwise.

The plaintiffs contend that the complaint alleges each of the defendants operates as a “for profit” enterprise.   Such an allegation, viewed in isolation, is insufficient to create an actionable CUTPA claim.   See Vincent v. Essent Healthcare of Connecticut, Inc., 368 F.Sup.2d 181, 184 (D.Conn.2005) (Arterton, U.S.D.J.) (“[t]he allegation of a profit motive for making certain medical decisions does not, in itself, turn a medical decision into an entrepreneurial one”).   In Janusauskas v. Fichman, 264 Conn. 796, 808–09 (2003) our Supreme Court held that “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.”   Plaintiff's efforts to turn allegedly negligent treatment decisions into entrepreneurial, business decisions which could be the basis of a viable CUTPA claim are unavailing.

This extends to plaintiffs' claim, set forth in Paragraph 73(a) of the Sixth ⁵ Count, that the defendants “provid[ed] [Mr. Ruotolo] with unequal treatment in the provision of services on account of his source of payment or reimbursement.”   The court finds that even though there would be a financial motivation for providing less care to a Medicaid recipient than to a patient who paid more for his or her care, carrying out such a plan would inevitably involve treatment decisions, and this claim cannot be the basis of a CUTPA claim.   See Vincent v. Essent Healthcare of Connecticut, Inc., supra, 368 F.Sup.2d at 184.

Both motions to strike the Sixth Count are granted.

Seventh and Eighth Counts (Bystander Emotional Distress)

The defendants move to strike the seventh and eighth counts of the complaint on the ground that Connecticut bars claims for bystander emotional distress in the medical malpractice context.⁶

The leading case on this issue is.  Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988).

In Maloney, the plaintiff initiated a medical malpractice action against two physicians and a hospital seeking to recover damages for severe emotional distress she alleged to have suffered as a result of the defendants' negligent medical treatment of her mother ․ The trial court granted the defendants' motions to strike the plaintiff's complaint and subsequently rendered a partial judgment against the plaintiff ․ On appeal, our Supreme Court held “that a bystander to medical malpractice may not recover for emotional distress ․” (Citations omitted;  internal quotation marks omitted.)

Milton v. Robinson, 131 Conn.App. 760, 784–85 (2011), cert. denied, 304 Conn. 906 (2012).   Our Supreme Court has recognized the continuing validity of Maloney as recently as last year, in Jarmie v. Troncale, 306 Conn. 578, 593 (2012) in which it cited Maloney 's holding that “a physician owed no duty of care to his patient's daughter, who suffered emotional distress as a result of observing the patient's health deteriorate because of the physician's malpractice.”

In support of their argument that a claim for bystander emotional distress may lie in an action based on alleged medical malpractice, the plaintiffs cite no post-Milton appellate authority.   Instead, they argue that Clohessy v. Bachelor, 237 Conn. 31 (1996), provides the proper framework to analyze a claim for bystander emotional distress, even if brought in the context of a medical malpractice action.   The court disagrees with plaintiffs' suggestion that it ignore the cases decided since Maloney which have held that it is still the law of this state.   See Potvin v. Lincoln Service & Equipment Co., 298 Conn. 620, 650 (2010) (“[a] trial court is required to follow the prior decisions of an appellate court to the extent that they are applicable to facts and issues in the case before it, and the trial court may not overturn or disregard binding precedent”).

The motions to strike the Seventh and Eighth Counts are granted.

Ninth Count:  Negligent Hiring

The defendants move to strike count nine of the complaint on the ground that it is legally insufficient.   Specifically, the defendants argue that the plaintiffs fail to allege the defendants knew or should have known that Guilford House employees had a propensity to engage in harmful conduct.   Moreover, Sawicki argues that the Ninth Count fails to allege that he was an employer, that he hired Guilford House employees or that the plaintiffs suffered actual damages.

This court has previously addressed the foreseeability element in cases involving allegedly negligent employment practices in Lara v. Legionaries of Christ, Docket No. X03 CV 106016974 (Complex Litigation Docket at Hartford, August 30, 2011 (Miller, J.):

Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of [foreseeability].   The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised ․ It is well settled that defendants cannot be held liable for their alleged negligent hiring, training, supervision or retention of an employee accused of wrongful conduct unless they had notice of said employee's propensity for the type of behavior causing the plaintiff's harm ․ By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result ․ (Citations omitted;  internal quotation marks omitted.).

The plaintiffs argue that paragraphs 91 through 93 of the ninth count “reflect that the [d]efendants were properly on notice that their agent, employee or independent contractor had the propensity to harm Guilford House residents.”   [P's Obj. Memo # 174, p. 25.]

Paragraph 91 alleges:  “[t]he [d]efendant Guilford House and/or its predecessors have a history of various complaints related to its operation, and upon information and [belief], the competent care of its residents.”   Paragraph 92 states that:  “[t]he [d]efendants 109, Holding Company and Guilford House knew, or in the exercise of reasonable due diligence, should have known that Guilford House and its employees have been subject to inspections by the State of Connecticut as a result of complaints concerning the oversight and care of residents.”   Paragraph 93 states that:  “[d]espite knowing of past problems [d]efendants breached their duty of care to the [p]laintiff's decedent by hiring and/or retaining such professional staff and/or independent contractors performing professional services and, as such, placed the employee or agent in a position where others could be injured.”

The motions to strike the Ninth Count are granted because the plaintiffs have failed to allege facts supporting the element of foreseeability.   Although paragraph 91 states that “Guilford House and/or its predecessors have a history of various complaints related to its operation ․ [and] the competent care of its residents,” that paragraph makes no express allegation concerning complaints lodged against specific employees hired by the defendants.   Paragraph 92 alleges that Guilford House and its employees have been subject to inspections as a result of those complaints, but there is no allegation that those complaints were substantiated.   Prior complaints against the nursing facility and subsequent inspections of the facility and unspecified employees do not, without more, support the element of foreseeability.   The allegations of the Ninth Count could not establish actual or imputed knowledge of the employer of a particular employee's propensity for the type of behavior alleged to have caused the plaintiffs' injuries.

Tenth Count (Respondeat Superior)

The Guilford defendants have not moved to strike the Tenth Count.   Defendant Sawicki moves to strike count ten on the ground that the plaintiffs have not alleged facts that would make him vicariously liable for the acts or omissions of Guilford House employees.   The plaintiffs have since determined that Dr. Sawicki's “role in this matter was not as an owner or investor,” and they are not pursuing any claim against him in the Tenth Count.

Conclusion

The Guilford defendants' motion to strike is denied as to the Third and Fourth Counts.   It is granted as to the Sixth, Seventh, Eighth and Ninth Counts.

Defendant Sawicki's motion to strike is granted as to the Third through Ninth Counts.

All claims, wherever they appear in the operative complaint, regarding causes of action for loss of parental consortium and/or bystander emotional distress are stricken from the complaint.   It is so ordered.

/S/ Miller, J. (401926)

FOOTNOTES

FN1. The plaintiffs serve as co-administrators of Ruotolo's estate..  FN1. The plaintiffs serve as co-administrators of Ruotolo's estate.

FN2. The only count that is not challenged in either motion to strike is the first count, sounding in medical malpractice..  FN2. The only count that is not challenged in either motion to strike is the first count, sounding in medical malpractice.

FN3. Defendants have also moved to strike Paragraph 95(a) of the Seventh Count and Paragraph 95(a) of the Eighth Count.   Each of these paragraphs also seeks to state a claim for loss of parental consortium.   The court has stricken the Seventh and Eighth Counts in their entirety, as discussed below, so it does not need to strike individual paragraphs therein.   It should be clear to all parties that all claims for loss of parental consortium have been stricken from the complaint..  FN3. Defendants have also moved to strike Paragraph 95(a) of the Seventh Count and Paragraph 95(a) of the Eighth Count.   Each of these paragraphs also seeks to state a claim for loss of parental consortium.   The court has stricken the Seventh and Eighth Counts in their entirety, as discussed below, so it does not need to strike individual paragraphs therein.   It should be clear to all parties that all claims for loss of parental consortium have been stricken from the complaint.

FN4. The court therefore does not reach defendant Sawicki's alternative claims that the plaintiffs' bystander emotional distress claims (as to him) should be stricken nor does it reach his claim that plaintiffs fail to allege that he owed them a duty..  FN4. The court therefore does not reach defendant Sawicki's alternative claims that the plaintiffs' bystander emotional distress claims (as to him) should be stricken nor does it reach his claim that plaintiffs fail to allege that he owed them a duty.

FN5. Plaintiff incorporated the first 75 paragraphs of the Fifth Count into the Sixth Count..  FN5. Plaintiff incorporated the first 75 paragraphs of the Fifth Count into the Sixth Count.

FN6. The Guilford defendants move to strike, in the alternative, paragraph 95(a) of count seven and paragraph 95(a) of count eight, on the ground that both paragraphs seek recovery for loss of parental consortium, which is not a recognized cause of action in Connecticut Because the court has granted defendants' motion to strike these counts in their entirety, it does not address these additional claims..  FN6. The Guilford defendants move to strike, in the alternative, paragraph 95(a) of count seven and paragraph 95(a) of count eight, on the ground that both paragraphs seek recovery for loss of parental consortium, which is not a recognized cause of action in Connecticut Because the court has granted defendants' motion to strike these counts in their entirety, it does not address these additional claims.

Miller, Grant H., J.