Kenneth M. Briggs v. Suzanne Winters (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE # 110

FACTS

The plaintiff, Kenneth Briggs, is the administrator of Reuben Perrin's estate and filed a three-count complaint against Suzanne L. Winters and Louise Winters on January 10, 2013.   The complaint alleges the following facts.   On July 9, 2012, at approximately 6:30 in the morning, Reuben Perrin was driving westbound on Route 6 in Brooklyn, Connecticut.   At the same time, Suzanne Winters was driving eastbound in a car owned by Louise Winters.   As the two cars neared, the vehicle operated by Suzanne Winters crossed over the yellow line into the lane occupied by Perrin, collided with Perrin's car, and killed him.   The plaintiff further alleges that the accident was caused by (among other things) Winters driving at excessive speeds and operating under the influence of methadone.   Count one alleges negligence, count two alleges statutory recklessness, and count three alleges common-law recklessness.

On March 19, 2013, the defendants answered the complaint and admitted that the vehicle was operated by Suzanne Winters and owned by Louise Winters.   The answer further admitted that Suzanne Winters was under the influence of methadone at the time of the accident.   On June 10, the defendants filed a one-count apportionment complaint against the Hartford Dispensary, Willimantic Clinic (clinic) alleging that the accident was caused by the clinic's negligently increasing Winters' methadone dosage, negligently permitting her to drive after providing her with the dosage, and failing to warn Suzanne Winters of the side effects of methadone.   On July 26, 2013, the clinic moved to strike the apportionment complaint and filed a memorandum of law in support of its motion.   On August 16, the Winters filed a memorandum in opposition, and the clinic replied on August 28.   The plaintiff (Briggs) also filed a memorandum in opposition to the clinic's motion to strike, and the matter was heard at short calendar on September 3, 2013.¹

DISCUSSION

“[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike.”  Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). “[l]t 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 ․” (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”   Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   Finally, “[i]n ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion.”  Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).

The clinic's motion to strike the Winters' apportionment complaint first argues that the complaint is legally insufficient given that it lacks a “certificate of good faith” and an opinion letter by a similar health care provider as required under General Statues § 52–190a.   Second, the clinic contends that pursuant to the Connecticut Supreme Court's decision in Jarmie v. Troncale, 306 Conn. 578, 50 A.3d 802 (2012), the clinic owed no duty to prevent its patient, Suzanne Winters, from causing harm to Reuben Perrin, an unidentifiable third party.

The clinic's first argument, asserting that the complaint is legally insufficient for want of a § 52–190a opinion letter, is not properly before the court on a motion to strike.   In Morgan v. Hartford Hospital, 301 Conn. 388, 402, 21 A.3d 451 (2011) our state's Supreme Court clarified that “because the written opinion letter of a similar health care provider must be attached to the complaint in proper form, the failure to attach a proper written opinion letter pursuant to § 52–190a constitutes insufficient service of process and, therefore, Practice Book § 10–32 and its corresponding time and waiver rule applies by its very terms.   Because we conclude that the absence of a proper written opinion letter is a matter of form, it implicates personal jurisdiction.”  (Footnote omitted.)  Id. Accordingly, the issue of an insufficient (or, in this case, absent) § 52–190a opinion letter must be raised on a motion to dismiss filed within thirty days of the defendant's appearance.²  Wightman v. Sposato, 132 Conn.App. 102, 109–10, 30 A.3d 18 (2011).   The clinic filed this motion on July 26, forty-three days after filing its appearance on June 13, 2013.³  Pursuant to the court's decision in Morgan, the clinic's § 52–190a argument was waived on the thirty-first day after the appearance was filed.

The clinic's second argument is that it owed no duty of care to the plaintiff's decedent given that he was an unidentifiable third party.   In support of this contention, the clinic cites the Connecticut Supreme Court's recent decision in Jarmie v. Troncale, supra, 306 Conn. 578.   In Jarmie, the court determined that a physician did not owe a duty of care to prevent his patient from causing injury to an unidentifiable third party.  Id., 624–25.   The Winters argue that numerous opinions of other jurisdictions including California, Indiana, and Michigan (as well as the dissent in Jarmie ) have “concluded under similar facts that harm to [a] non-patient victim [was] foreseeable to the physician.”   If, however, Jarmie does in fact compel the conclusion that there was no duty of care owed to the plaintiff's decedent as an unidentifiable third party, this court is bound by that conclusion.   Thus, a thorough explication of Jarmie is necessary.

In Jarmie, the plaintiff was injured after being struck by a car driven by the defendant's patient who had blacked out while operating her vehicle.   Id., 580.   The plaintiff alleged that the defendant (a gastroenterology specialist) had negligently failed to advise his patient that the condition for which the patient was receiving treatment could cause “latent driving impairment.”  Id. The trial court granted the defendants' motion to strike after rejecting the plaintiff's medical malpractice theory and further concluding that the defendant owed no common-law duty to prevent a patient from causing injuries to an unidentifiable third party.  Id., 582.   On appeal, the Supreme Court quickly agreed that, to the extent that the plaintiff's claim sounded in medical malpractice, the complaint was legally insufficient given that it contained “no allegations that the plaintiff and [the defendant] had a physician-patient relationship as required under Connecticut's medical malpractice law.”  Id., 589.   However, insofar as the complaint sounded in ordinary negligence, the court engaged in a detailed analysis of Connecticut's common law duty to unidentifiable third parties.  Id., 589–624.

“Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action ․ 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 ․ A simple conclusion that the harm to the plaintiff was forseeable, however, cannot by itself mandate a determination that a legal duty exists.   Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed ․ The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.”  (Internal quotation marks omitted.)  Id., 590.   In examining this fundamental policy, the court in Jarmie first looked to its own precedent and found that “[c]onsistent with the purpose of the medical malpractice statute and the limited duty of health care providers under the common law, this court has exercised restraint when presented with opportunities to extend the duty of health care providers to persons who are not their patients.”  Id., 592.   As support, the court cited four cases in which it had rejected third-party duty of care claims brought against a wide variety of health care providers including nurses, psychiatrists, and emergency medical technicians.  Id., 592–93.

The court further stated that “[r]elated areas of Connecticut negligence law [also] provide support for the proposition that proof that the victim was an identifiable target is ordinarily an essential element of an action in negligence.”  (Internal quotation marks omitted.)  Id., 597.   With this precedent in mind, the court concluded that “even if it was foreseeable that [the patient] might have caused a motor vehicle accident due to her impaired condition, the plaintiff was not an identifiable victim, nor does he belong to an identifiable class of victims, because the potential victims of [the defendant's] alleged negligence included any random pedestrian, driver, vehicular passenger or other person who happened to come in close proximity to a motor vehicle operated by [the patient] following her diagnosis ․ Accordingly, if we decide to abandon this court's former approach and to extend a health care provider's duty to possibly foreseeable victims who are not identifiable, we must do so for reasons of public policy.”  Id., 597–98.

“We have articulated four specific factors to be considered in determining the extent of a legal duty as a matter of public policy.   These are:  “(1) the normal expectations of the participants in the activity under review;  (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants;  (3) the avoidance of increased litigation;  and (4) the decisions of other jurisdictions.”  Id., 603, quoting Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 480, 823 A.2d 1202 (2003).   With regard to the expectations of the parties, the court determined that “it is unlikely that a person injured in a motor vehicle accident caused by another driver would expect to be compensated by the driver's health care provider ․ The normal expectations of the parties thus weigh heavily against extending the duty of health care providers to victims of their patients' unsafe driving.”   Id., 605.   Next, the court reasoned that extending the duty would unreasonably interfere with the physician-patient relationship by complicating the physician's concern for the patient with a generalized concern for others as well as potentially jeopardizing confidentiality.  Id., 606–08.

Thirdly, the Court lamented, echoing the concerns of Chief Justice Marshall of the Massachusetts Supreme Judicial Court, that “[o]ne need not be clairvoyant to understand the inevitable result of today's enlargement of liability;  a significant increase in third party litigation against doctors and an attendant increase in expenses at a time when our health care system is already overwhelmed with collateral costs ․ [Imposing such a duty] impedes not only the work of doctors.   It impedes the work of [the] courts.”  (Internal quotation marks omitted.)  Id., 615, quoting Coombes v. Florio, 450 Mass. 182, 205–06, 877 N.E.2d 567 (2007) (Marshall, C.J., dissenting).   The court further opined that expanding the duty would lead to “time-consuming fishing expeditions” and plaintiffs “bringing claims against health care providers to supplement the coverage provided under their own insurance policies.”   Jarmie v. Troncale, supra, 306 Conn. 615.   Finally, as to the fourth consideration, the court analyzed numerous extra jurisdictional opinions, determined that “there is no clear trend in the law of other jurisdictions” and found “no convincing support from our sister states for either party's view ․” ⁴ Id., 622.

Before concluding, the court discussed Connecticut's Dram Shop Act as an example of the legislature departing from the common law's traditional limitation on liability to unidentifiable third parties.  Id., 623.  “The legislature expanded the liability of the purveyors of alcoholic beverages because of the inability of the common-law rule to address a matter of general public concern, namely, the consequences to persons and property flowing from the objectionable behavior of intoxicated customers to whom liquor had been sold.   In contrast, the plaintiff and the defendants in the present case agree that motor vehicle accidents caused by drivers whose health care providers have failed to advise or warn them of a latent driving impairment are rare.  Id., 623–24.   With that, the court concluded “as a matter of law that Troncale owed no duty to the plaintiff in this case because Connecticut precedent does not support it, the plaintiff was an unidentifiable victim, public policy considerations counsel against it, and there is no consensus among courts in other jurisdictions, which have considered the issue only rarely.”  Id., 590–91.   The court affirmed the trial court's granting the defendants' motion to strike.  Id., 625.

While distinctions can be made between the facts of Jarmie and those underlying the present case, the inescapable principle enunciated in Jarmie is that health care providers do not owe a duty to prevent their patients from causing injuries to unidentifiable third-party members of the public.  “The established rule is that, absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another.”   (Internal quotation marks omitted.)  Id., 592.   The Winters have provided no statutory authority that would counsel this court to depart from these settled principles.   The General Assembly has enacted laws permitting outpatient methadone treatment facilities, General Statutes § 21a–252(a), and designating the Department of Mental Health and Addiction Services to oversee methadone treatment.  General Statutes § 17a–450(d).  If our legislature intended to abrogate the common-law limitation on duties owed to unidentifiable third parties (as it did with the Dram Shop Act) it was certainly capable of doing so.

The Winters' memorandum in opposition cites Merhi v. Becker, 164 Conn. 516, 325 A.2d 270 (1973), arguing that the case stands for the proposition that there is a duty of care with respect to all harms which a reasonably prudent person in the defendant's position, knowing what the defendant knew at the time, would have anticipated.   In Merhi, the Supreme Court affirmed a denial of the defendant's motion to set aside the plaintiff's verdict after the jury found the defendant, a labor union, liable for injuries sustained at a picnic organized by the union.  Id., 523.   During the picnic—which the defendant organized, sponsored, and charged an admission fee—one attendee became drunk and struck the plaintiff, a fellow attendee, with his car.  Id., 518.   The court stated (as the Winters emphasize) that the fact that the defendant “neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.”  (Internal quotation marks omitted.)  Id., 521.   There is, however, a critical distinction between the facts in Merhi and the facts in both the present case and in Jarmie.   In Merhi, the plaintiff was a clearly identifiable victim.   The defendant organized an event, invited the plaintiff, and charged the plaintiff a fee to attend the event.  Id., 519.   In fact, the court adorned the plaintiff with the legal status of invitee.  Id. Conversely, in the present case, as the clinic's memorandum correctly emphasizes, “[t]he possible victim of [Suzanne Winters'] accident could have been a pedestrian, driver, vehicular passenger, or any other random individual who crossed [Winters'] path.”   This crucial distinction is fatal to the legal sufficiency of the apportionment complaint.   The clinic's duty to treat its patients in a reasonable and competent manner cannot, as a matter of law, extend to every member of the public who could possibly be injured by its failure to do so.

CONCLUSION

The defendant clinic's first argument, regarding the absence of the § 52–190a opinion letter, is rejected as improperly raised on a motion to strike.   However, the motion to strike is granted on the clinic's second argument that it owed no duty to prevent its patient from causing harm to the plaintiff as an unidentifiable third party.

THE COURT

CALMAR, J.

FOOTNOTES

FN1. On August 15, 2013, Briggs filed a request to amend his complaint to add a fourth count against the clinic alleging negligent overdosing of Suzanne Winters as a proximate cause of Reuben Perrin's death.   Neither the Winters nor the clinic have filed an objection..  FN1. On August 15, 2013, Briggs filed a request to amend his complaint to add a fourth count against the clinic alleging negligent overdosing of Suzanne Winters as a proximate cause of Reuben Perrin's death.   Neither the Winters nor the clinic have filed an objection.

FN2. Furthermore, although not directly at issue in Morgan, the failure to attach a certificate of good faith likewise presents an issue of insufficiency of service of process waivable pursuant to Practice Book § 10–32.   In reaching its conclusion in Morgan, the Supreme Court specifically equated the opinion letter and good faith certificate:  “the written opinion letter ․ like the good faith certificate, is akin to a pleading that must be attached to the complaint in order to commence properly the action.”  Morgan v. Hartford Hospital, supra, 301 Conn. 398..  FN2. Furthermore, although not directly at issue in Morgan, the failure to attach a certificate of good faith likewise presents an issue of insufficiency of service of process waivable pursuant to Practice Book § 10–32.   In reaching its conclusion in Morgan, the Supreme Court specifically equated the opinion letter and good faith certificate:  “the written opinion letter ․ like the good faith certificate, is akin to a pleading that must be attached to the complaint in order to commence properly the action.”  Morgan v. Hartford Hospital, supra, 301 Conn. 398.

FN3. The clinic did, in fact, file a timely motion to dismiss on June 26, 2013.   However, that motion was based solely on the ground that the 120–day statute of limitations for an apportionment complaint had expired..  FN3. The clinic did, in fact, file a timely motion to dismiss on June 26, 2013.   However, that motion was based solely on the ground that the 120–day statute of limitations for an apportionment complaint had expired.

FN4. The court in Jarmie discussed a Texas appellate court decision with particular relevance to the present facts.   In Flynn v. Houston Emergicare, Inc., 869 S.W.2d 403 (Tex.App.1993), a patient was admitted to the emergency room after experiencing chest pains following his ingestion of cocaine.   The doctors released the patient who, while driving home, had a seizure related to his cocaine use and crashed his car into the plaintiff.  Jarmie v. Troncale, supra, 306 Conn. 621.   The court in Flynn determined that the doctors “owed no duty to the public to warn [the patient] not to drive following his ingestion of cocaine.”  Flynn v. Houston Emergicare, Inc., supra, 869 S.W.2d 406.   To the extent that the Winters' apportionment complaint alleges a duty to warn Suzanne not to drive after ingesting methadone, the Jarmie court's reliance on the Flynn decision is certainly detrimental..  FN4. The court in Jarmie discussed a Texas appellate court decision with particular relevance to the present facts.   In Flynn v. Houston Emergicare, Inc., 869 S.W.2d 403 (Tex.App.1993), a patient was admitted to the emergency room after experiencing chest pains following his ingestion of cocaine.   The doctors released the patient who, while driving home, had a seizure related to his cocaine use and crashed his car into the plaintiff.  Jarmie v. Troncale, supra, 306 Conn. 621.   The court in Flynn determined that the doctors “owed no duty to the public to warn [the patient] not to drive following his ingestion of cocaine.”  Flynn v. Houston Emergicare, Inc., supra, 869 S.W.2d 406.   To the extent that the Winters' apportionment complaint alleges a duty to warn Suzanne not to drive after ingesting methadone, the Jarmie court's reliance on the Flynn decision is certainly detrimental.

Calmar, Harry E., J.