Louise Manginello v. Church Hones, Inc. dba Avery Heights et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 119)

The plaintiff, Louise Manginello, brought this action in four counts.   Counts one and two allege medical malpractice against Church Homes, Inc., d/b/a Avery Heights (“Avery Heights”), and against Joseph Anquillare, respectively.   Counts three and four allege breach of contract claims against Avery Heights and Anquillare, respectively.   Pending before the court is defendant Anquillare's motion to strike counts two (medical malpractice) and four (breach of contract).   For the reasons stated below, Anquillare's motion to strike count two is denied and his motion to strike count four is granted.

In count two, which incorporates by reference the first sixteen paragraphs of count one against Avery Heights, the plaintiff alleges that Avery Heights is a duly licensed health care provider that holds itself out as a specialist in the field of rehabilitation.   She alleges that Anquillare is a physician who was an agent or employee of Avery Heights and was acting in that capacity at all times relevant to this action.   She further alleges that she was a patient at Avery Heights, under the care of Anquillare, in the fall of 2009 for postoperative care.   She alleges that Anquillare was negligent in a number of ways, including but not limited to failing to conduct a proper examination of the plaintiff, failing properly to monitor the plaintiff's nutrition and hydration, and failing to accurately diagnose and treat her malnutrition in a timely manner.   The plaintiff alleges that Anquillare's negligence caused her to suffer a permanent inability to walk, fear, anguish, anxiety, and emotional distress, and loss of the opportunity to carry on and enjoy her usual life's activities.

The plaintiff alleges that Avery Heights provided care to her “through the fall of 2009” (count one, paragraphs 5, 7, 8) and that Anquillare was acting as its agent or employee at all times alleged in the complaint.  (Count two, paragraph 17.)   On October 11, 2011, the plaintiff requested and was granted a 90–day extension of the statute of limitations as permitted by General Statutes § 52–190a.   The plaintiff delivered the complaint to a state marshal on March 29, 2013, and it was served by abode service on Anquillare on April 1, 2013.  (Return of service.)

Anquillare moved to strike count two, the medical malpractice claim against him, on the ground that it is barred by the two-year statute of limitations in General Statutes § 52–584, on September 3, 2013.   The plaintiff filed an objection to the motion on September 27, 2013, and filed a second revised complaint on September 30, 2013, the day counsel for the parties appeared for oral argument on Anquillare's motion to strike.

General Statutes § 52–584 provides in relevant part as follows:  “No action to recover damages for injury to the person ․ caused by ․ malpractice of a physician ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of ․” Both the two-year limitation period and the three-year repose period in § 52–584 may be extended by 90 days in medical malpractice cases pursuant to General Statutes § 52–190a(b).  Barrett v. Montesano, 269 Conn. 787, 794–96, 849 A.2d 839 (2004).

Anquillare argues that the plaintiff's claim is barred because it was not filed within two years of the date when the plaintiff discovered her injury.   Relying on the allegation that the plaintiff was under Anquillare's care “through the fall of 2009,” and construing the “fall of 2009” to include all dates up to and including December 31, 2009, Anquillare argues that the plaintiff knew or should have known that she had sustained an injury no later than December 31, 2009, and that, even with the 90–day extension, the two-year statute of limitations expired on March 30, 2012, but this action was not commenced until April 1, 2013.

“A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)  Fidelity Bank v. Krenisky, 72 Conn.App. 700, 720, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002).   The facts alleged must be construed in the manner most favorable to the pleader.  Id. “For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted.”  (Internal quotation marks omitted.)  Bridgeport Harbour Place I v. Ganim, 111 Conn.App. 197, 203, 958 A.2d 210 (2008), aff'd, 303 Conn. 205, 32 A.3d 296 (2011).

As a general rule, a defense based on a statute of limitation must be pleaded as a special defense under Practice Book § 10–50, not raised by a motion to strike.  Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993).   A motion to strike might deprive the plaintiff of an opportunity to plead matters in avoidance of the statute of limitations defense.  Id.

Anquillare relies on an exception to this general rule that permits a statute of limitation defense to be asserted in a motion to strike if the “ ‘parties agree that the complaint sets forth all the facts pertinent to the question whether the action is barred by the Statute of Limitations and that, therefore, it is proper to raise that question by a [motion to strike] instead of by answer.’  “ Id., quoting Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 171–72, 127 A.2d 814 (1956).

In this case, the parties do not agree that the complaint sets forth all the relevant facts.   Indeed, as stated above, the plaintiff has filed a second revised complaint that alleges that she did not discover that she had sustained an “actionable harm” until January of 2012.   Anquillare counters that she knew she was unable to walk throughout December of 2009 and therefore knew or should have known that she had suffered an actionable harm by that time.   As he points out, “Actionable harm occurs when the plaintiff discovers ․ that he or she has been injured and that the defendant's conduct caused such injury ․ The statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof ․ The focus is on the plaintiff's knowledge of facts, rather than on discovery of applicable legal theories.”   (Internal quotation marks omitted;  citation omitted.)  Mollica v. Toohey, 134 Conn.App. 607, 613, 39 A.3d 1202 (2012).

The complaint that was operative in this case when the motion to strike was filed alleges that the plaintiff was a patient at Avery Heights, and under Anquillare's treatment, in the fall of 2009 for post-surgical rehabilitative care.   Because she was in a post-surgical condition, in need of rehabilitation, it is by no means clear from the complaint that she knew or should have known, in December of 2009, that she had suffered an injury caused by the defendants.   Although she was aware of her condition, it may have been reasonable for her to attribute that condition to her pre-existing medical or surgical situation.   In the second revised complaint, filed on September 30, 2013, she alleges that she did not discover that she had suffered an injury caused by the defendants until January of 2012, when she was told that her condition was now permanent and that it was likely caused by the defendants' failure to provide proper care.   Even without this new allegation, however, the court cannot conclude that the complaint in effect on September 3, 2013, contained all facts necessary to determine whether the plaintiff should have known she had sustained an actionable harm more than two years before she filed the action.   Accordingly, the general rule precluding the use of a motion to strike to assert a statute of limitations defense applies in this case, and the motion to strike count two is denied.

Anquillare has also moved to strike count four, which incorporates all the allegations of the medical malpractice claim against Anquillare and then asserts that Anquillare breached a contract with the plaintiff by failing to provide “safe medical care that conformed to the standard of care.”   The question presented is whether the breach of contract claim is merely a medical malpractice claim cloaked in contractual language.   The court concludes that it is.

“The interpretation of pleadings is always a question of law for the court.”   Boone v. William W. Backus Hosp., 272 Conn. 551, 559, 864 A.2d 1 (2005).   “Whether the plaintiff's cause of action is one for malpractice depends upon the definition of that word and the allegations of the complaint ․ Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services ․” (Citations omitted;  internal quotation marks omitted.)  Barnes v. Schlein, 192 Conn. 732, 735, 473 A.2d 1221 (1984).   The elements of a breach of contract action are “the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  Bouchard v. Sundberg, 80 Conn.App. 180, 189, 834 A.2d 744 (2003).

It is not the label a plaintiff places on her claims that matters, but the nature of the legal inquiry at issue.  Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 580, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).   An allegation of medical malpractice does not give rise to a breach of contract claim unless “the physician and patient contract for a specific result.”  Rumbin v. Baez, 52 Conn.App. 487, 491, 727 A.2d 744 (1999).  “[A] claim that a defendant promised to work diligently or in accordance with professional standards is not made a contract claim simply because it is couched in contract language of promise and breach.”  Caffery v. Stillman, 79 Conn.App. 192, 197, 829 A.2d 881 (2003).

In this case, the plaintiff has merely incorporated the allegations of her malpractice claim and has alleged that Anquillare breached his contractual duty to provide safe care in conformity with the relevant standard of care.   This is insufficient as a matter of law to state a claim for breach of contract in relation to the provision of medical care.   Accordingly, the motion to strike count four is granted.

BY THE COURT,

Sheila A. Huddleston, Judge

Huddleston, Sheila A., J.