Dawn Bates, Administratrix of the Estate of Ashley B. Bates v. Sarah Jane De Asis et al. (2016)

MEMORANDUM (Motion to Strike # 113, Short Calendar, February 1, 2016)

The defendants move to strike the parts of count one and count two of the amended complaint that contain allegations of apparent agency on the grounds that Connecticut does not provide for liability under a theory of apparent agency in the medical malpractice context.¹

FACTS

On November 19, 2015, the plaintiff, Dawn Bates, Administratrix of the Estate of Ashley B. Bates, filed an amended complaint against the defendants, Sarah Jane De Asis and Day Kimball Hospital (Day Kimball).  This is the operative complaint in this matter.²  Count one, brought against De Asis, alleges wrongful death pursuant to General Statutes § 52–555.³  The complaint alleges that De Asis was a servant, agent, apparent agent, and/or employee of the co-defendant, Day Kimball, and was therefore granted hospital privileges.  On or about July 9, 2013, continuous to on or about July 15, 2013, De Asis and/or her servants, agents, apparent agents and/or employees, undertook the care, treatment, monitoring, diagnosing, and supervision of the plaintiff's decedent, Ashley B. Bates.

While under the care, treatment, monitoring, diagnosing, and supervision of De Asis, Ashley B. Bates suffered the following injuries that led to her death on July 25, 2013:  bipolar depression and social anxiety, asking for help, mental instability, previous suicide attempts, heroin and oxycodone intoxication, death by suicide, inability to experience quality family moments, inability to continue her life, and psychological, physiological, and neurological sequelae.  The complaint further alleges that the injuries and death of Ashley B. Bates were caused by the failure of De Asis and/or her servants, agents, apparent agents and/or employees to exercise the degree of care and skill ordinarily and customarily used by psychiatrists under the facts of the particular circumstances.⁴

Count two of the complaint, brought against Day Kimball, also alleges wrongful death pursuant to § 52–555.  It alleges that Day Kimball, located in Putnam, Connecticut, was a specially chartered corporation organized and existing under the laws of the State of Connecticut which provided psychiatric services, counseling, psychiatrists and other healthcare professionals to the general public, and specifically to Ashley B. Bates.  The complaint alleges that De Asis was a servant, agent, apparent agent and/or employee of Day Kimball and that Day Kimball extended hospital privileges to De Asis. On or about July 9, 2013, through on or about July 15, 2013, Day Kimball and/or its servants, agents, apparent agents and/or employees, undertook the care, treatment, monitoring, diagnosing and supervision of Ashley B. Bates.  Count two further alleges that the injuries and death of Ashley B. Bates were caused by the failure of Day Kimball and/or its servant, agents, apparent agents and/or employees, to exercise reasonable care under all facts and circumstances and that as a result of Day Kimball's and/or its servants, agents, apparent agents and/or employee's carelessness and negligence, Ashley B. Bates suffered severe, painful, and permanent injuries.

On December 18, 2015, the defendants filed a motion to strike the claims of apparent agency set forth in count one and count two of the complaint.  The defendants also submitted a memorandum of law in support of their motion.  The plaintiff filed an objection to the defendants' motion to strike on December 29, 2015.  This matter was heard at short calendar on February 1, 2016.

DISCUSSION

“A motion to strike shall be used whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted ․” Practice Book § 10–39(a).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)  Id., 588.

“[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ․ [The court] construe[s] 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 ․” Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).

Moreover, “[a]lthough there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense ․ Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count ․ However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action ․ [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense.”  (Internal quotation marks omitted.)  Weingarden v. Milford Anesthesia Associates, P.C., Superior Court, judicial district of New Haven, Docket No. CV–11–6016353–S (May 30, 2013, Wilson, J.).

The defendants move to strike the claims of apparent agency set forth in count one and count two of the complaint on the ground that Connecticut does not provide for liability under a theory of apparent agency in the medical malpractice context.  As a threshold matter, this court generally sides with the majority of Superior Court decisions in that, “it is rarely appropriate to strike only part of a count.”  Rose v. Cuadro, Superior Court, judicial district of New London, Docket No. CV–11–6011627–S (October 21, 2013, Cole–Chu, J.);  see Sheehy v. Big Y Foods, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06–CV–12–6014260–S (October 31, 2012, Agati, J.) (54 Conn. L. Rptr. 887, 888) (“[A]lthough there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense ․”).  However, the circumstances of the instant matter allow the motion to strike to be considered.

On September 17, 2015, the defendants filed a request to revise the complaint dated July 6, 2015.  The request to revise, in relevant part, sought to have the apparent agency language removed to separate counts as it related to each defendant.  The plaintiff objected to the request to revise on October 13, 2015, claiming that apparent agency need not be expressly pleaded and that it is merely one method for agency to be proved.  The court, Calmar, J., issued an order on November 16, 2015, indicating that the parties had reached an agreement as to Requests 1, 2, and 7, but the objection was sustained in regard to Requests 3, 4, 5, and 6. In the present motion, the plaintiff now argues that the motion to strike should be denied because it is inappropriate to strike only the portion of the count that relates to the apparent authority language.  The plaintiff is essentially advancing an argument that the defendants sought to resolve with their request to revise.  For such reason, the instant matter requires an exception to the majority rule that it is generally inappropriate to strike only a portion of a count.  The court will, therefore, decide the motion to strike on the merits.

The defendants rely on the Appellate Court's decision in Cefaratti v. Aranow, 154 Conn.App. 1, 105 A.3d 265 (2014), cert. granted, 315 Conn. 919, 107 A.3d 960 (2015), in asserting that Connecticut does not allow for liability under a theory of apparent agency in the medical malpractice context.  Specifically, in Cefaratti, the Appellate Court clarified previous rulings in both Fireman's Fund Indemnity Co. v. Longshore Beach and Country Club, Inc., 127 Conn. 493, 18 A.2d 347 (1941) (leaving open possibility that the doctrine of apparent authority can be used to impose tort liability on an alleged principle) and L & V Contractors, LLC v. Heritage Warranty Insurance Risk Retention Group, Inc., 136 Conn.App. 662, 670, 47 A.3d 887 (2012) (holding that, “the doctrine of apparent authority cannot be used to hold a principal liable for the tortious actions of its alleged agent”).  This court finds that that the Appellate Court's decision in Cefaratti is controlling.

“We cannot overlook the clear language in our decision in L & V Contractors, LLC, which states:  the doctrine of apparent authority cannot be used to hold a principal liable for the tortious actions of its alleged agent ․ It is settled policy ․ that one panel of this court, on its own, cannot overrule the precedent established by a previous panel's holding ․ Because we are bound by our decision in L & V Contractors, LLC, we conclude that the trial court correctly determined that the hospital could not be held vicariously liable for [the doctor's] alleged negligence based on a theory of apparent agency and conclude that, therefore, the court's rendering of summary judgment as to the hospital was proper.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Cefaratti v. Aranow, supra, 154 Conn.App. 45.

The plaintiff argues that because Cefaratti has recently been argued before the Supreme Court, the motion to strike should be denied and refiled if the Supreme Court upholds the Appellate Court's ruling.  The court disagrees, and will rule consistent with the Appellate Court's decision in Cefaratti, that the doctrine of apparent authority cannot be used to hold the hospital vicariously liable in tort for the actions of their alleged agent.

CONCLUSION

For the foregoing reasons, the court grants the defendant's motion to strike the claims of apparent agency set forth in count one and count two of the operative complaint.

THE COURT

CALMAR, J.

FOOTNOTES

FN1. On or about March 31, 2015, Dawn Bates was appointed Administratrix for the Estate of Ashley B. Bates by the Court of Probate, District No. PD 26.  The defendants in this matter include:  Sarah Jane De Asis and Day Kimball Hospital.  The motion to strike has been brought on behalf of both of the aforementioned parties, who will be referred to collectively as the defendants.  The operative complaint alleges that on or about June 22, 2015, pursuant to General Statutes § 52–190(a)(b), an automatic ninety-day extension of the statute of limitations was filed with the Superior Court..  FN1. On or about March 31, 2015, Dawn Bates was appointed Administratrix for the Estate of Ashley B. Bates by the Court of Probate, District No. PD 26.  The defendants in this matter include:  Sarah Jane De Asis and Day Kimball Hospital.  The motion to strike has been brought on behalf of both of the aforementioned parties, who will be referred to collectively as the defendants.  The operative complaint alleges that on or about June 22, 2015, pursuant to General Statutes § 52–190(a)(b), an automatic ninety-day extension of the statute of limitations was filed with the Superior Court.

FN2. The complaint alleges that De Asis held herself out to the general public as a physician duly licensed to practice medicine in the State of Connecticut specializing in psychiatry..  FN2. The complaint alleges that De Asis held herself out to the general public as a physician duly licensed to practice medicine in the State of Connecticut specializing in psychiatry.

FN3. Section 52–555, entitled, “Actions for injuries resulting in death,” provides in relevant part:  “(a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of.”.  FN3. Section 52–555, entitled, “Actions for injuries resulting in death,” provides in relevant part:  “(a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of.”

FN4. The operative complaint alleges that De Asis failed to:  adequately and properly care for, treat, diagnose, monitor and supervise, advocate for, provide adequate care and treatment, follow guidelines for the referral process and continuity of care, adequately collect data to provide a full clinical picture, participate in a multi-disciplinary team approach, implement a more aggressive and comprehensive safety plan, recognize multiple risk factors, initiate a period of intensive stabilization, collect accurate data, medicate properly, provide therapeutic intervention, corroborate information from family and friends, provide safety during the discharge process, have a comprehensive picture of Ashely B. Bates, and failed to promulgate and/or enforce rules, regulations, standards and protocols for the treatment of Ashley B. Bates..  FN4. The operative complaint alleges that De Asis failed to:  adequately and properly care for, treat, diagnose, monitor and supervise, advocate for, provide adequate care and treatment, follow guidelines for the referral process and continuity of care, adequately collect data to provide a full clinical picture, participate in a multi-disciplinary team approach, implement a more aggressive and comprehensive safety plan, recognize multiple risk factors, initiate a period of intensive stabilization, collect accurate data, medicate properly, provide therapeutic intervention, corroborate information from family and friends, provide safety during the discharge process, have a comprehensive picture of Ashely B. Bates, and failed to promulgate and/or enforce rules, regulations, standards and protocols for the treatment of Ashley B. Bates.

Calmar, Harry E., J.