Opinion
No. CV 03 0519859 S
October 7, 2003
MEMORANDUM OF DECISION RE MOTION #120 — MOTION TO STRIKE
The instant action is a wrongful death/medical malpractice action brought by way of an eleven-count complaint on behalf of the Estate of Debbora Bogazis.
The First Count is entitled " Negligence — Estate of Debbora Bogazis v. The Bristol Hospital Incorporated." This Count of the complaint alleges that the plaintiffs' decedent, Debbora Bogazis, was brought to Bristol Hospital by way of an ambulance. She had been placed in handcuffs before she was transported to Bristol Hospital. Upon her arrival the defendant Lawrence P. Levine, M.D., ordered that Mrs. Bogazis be restrained in a prone position by means of a 4-point restraint. From approximately 1:30 to 2:00 p.m. Mrs. Bogazis was continuously restrained as aforementioned. She was screaming and thrashing and at 1:40p.m. was given an injection of Ativan. At 2:03 p.m., she was given a second injection of Ativan. At approximately 2:06 p.m., four members of the hospital's staff attempted to hold Mrs. Bogazis down. At that same time two other hospital staff members put their weight on her thighs and buttocks. At 2:08 it was noted that Mrs. Bogazis was holding her breath. The hospital, through its agents administered CPR, but despite these efforts she was declared dead at 2:55 p.m., one (1) hour and thirty (30) minutes after her arrival.
The First Count of the complaint provides that the plaintiff's decedent's injuries, damages and death were caused by the "wrongful conduct of the defendant." This count contains thirty-one subparagraphs listing the different ways that the plaintiffs allege that the defendants were negligent.
This count lists the different allegations of wrongful conduct in the form of thirty-one paragraphs lettered "a" through "ee."
The Fifth and Sixth Counts of the complaint re-allege all of the allegations of the First Count. However these Counts additionally allege that the defendant acted "recklessly." The Court notes that many of the subparagraphs setting out the allegations of reckless conduct are very similar to the alleged conduct cited in the First Count. The Court notes however that there are some differences also. For example, subparagraph 17a of this count is the first time in the complaint that the plaintiff alleges the defendant ". . . put Mrs. Bogazis in a restraint that it had been advised had lethal potential."
On June 27, 2003, the defendant Bristol Hospital, Inc. moved to strike the Fifth, Sixth and Eleventh Counts of the plaintiffs' complaint on the grounds that said counts do not state claims for which relief may be granted. The defendant specifically argues that the Fifth and Sixth counts of the complaint fail to allege any facts that if proven, would allow a trier of fact to infer a reckless intent. The defendant further argues that the Eleventh Count fails to allege facts necessary to meet the Connecticut Unfair Trade Practices Act's requirement that he alleged conduct occurred within the context of "trade or commerce."
Whereas the defendant has filed a motion to strike, a brief review of recent case law concerning the motions to strike is warranted.
A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary . . . We take 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. (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002). Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly, rather than narrowly. Parsons v. United Technologies Corp., 243 Conn. 66, 83, 700 A.2d 655 (1997).
Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 629 (2002).
The Fifth and Sixth Counts
The defendant Bristol Hospital asserts that the Fifth and Sixth Counts should be stricken for reason that the plaintiffs rely upon the same factual allegations contained in the negligent medical malpractice count and "[n]o additional facts are alleged in support of the recklessness count." (See defendant's memorandum in support of motion to strike at page 4.)
Our appellate courts have recently addressed the issue of what must be proven in order to prevail in an action sounding in recklessness.
To determine whether the plaintiffs' amended complaint states a cause of action sounding in recklessness, we look first to the definitions of wilful, wanton and reckless behavior. Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . .
While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention. (Citations omitted; internal quotation marks omitted.) Craig v. Driscoll, supra, 64 Conn. App. 720-21.
Craig v. Driscoll, 262 Conn. 312, 342 (2003).
Upon completing its review this court comes to the conclusion that some of the allegations of the Fifth Count sufficiently state a cause of action sounding in recklessness.
"[W]here the allegations of a count of a contested pleading support a cause of action of recklessness, the count sounding in recklessness may well be sufficient to withstand a motion to strike even though the allegations of reckless conduct are also alleged as a basis of negligent conduct in a count sounding in negligence." (Internal quotation marks omitted.) Colon v. Southern New England Telephone Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 01 0385673 (May 21, 2002, Gallagher, J.); see also Drennan v. Geist, supra, Superior Court, Docket No. CV 99 0089114. "A cause of action in recklessness may be sufficiently alleged upon the same facts that would support a cause of action in negligence provided the allegations are independently sufficient to support a cause of action in recklessness." (Internal quotation marks omitted.) Wattman v. New Hartford Volunteer Fire Dept. Ambulance Service, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 00 0156795 (October 10, 2001, Rogers, J.) ( 30 Conn. L. Rptr. 554, 556).
Polanco v. Kitchens, No. 560492 (Oct. 4, 2002, Hurley, J.T.R.), 2002 Ct. Sup. 12665.
This Court has reviewed the allegations of wrongful conduct cited by the plaintiffs in the First and Fifth Counts of the operative complaint. Although the language of these counts is strikingly similar, the issue is not whether the language in the reckless count is similar to that of the negligence count, but whether the subject language supports an action sounding in recklessness and whether the language in the allegations is sufficient to inform the Court and defendant as to the nature of all of the allegations against the defendant.
Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . .
While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention. (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003).
Frillici v. Westport, 264 Conn. 266, 277 (2003).
As was previously stated herein, the defendant asserts that the Fifth and Sixth Counts should be stricken for reason that the plaintiffs rely upon the same factual allegations contained in the negligent medical malpractice count and "[n]o additional facts are alleged in support of the recklessness count."
The defendants [should not become] mired in the fact that, aside from the addition of the words "willful, wanton and/or reckless actions," the plaintiffs' allegations in their reckless counts mirror their assertions in the counts charging the defendants with negligence. Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted. See Brock v. Waldron, 127 Conn. 79, 81, 14 A.2d 713 (1940).
Craig v. Driscoll, 262 Conn. 312, 343 (2003).
Upon completing its review of the complaint this court finds that subparagraphs 17a through 17h; 17j through 17o; 17t through 17aa, of the Fifth and Sixth Counts are insufficient as a matter of law and are ordered stricken. Subparagraphs 17i and 17p through 17s, inclusive, are legally sufficient and may remain.
The Eleventh Count
As to the Eleventh Count, the Eleventh Count of the plaintiffs' complaint sounds in a violation of the Connecticut Unfair Trade Practices Act.
Section 42-110b of the Connecticut General Statutes concerns the Connecticut Unfair Trade Practices Act. Subsection 42-110b(a) provides that:
(a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.
Although CUTPA claims may be successfully brought against individuals in the medical field, recent case law indicates that said claims may only be brought under narrow circumstances.
Our Supreme Court has made clear, in Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 699 A.2d 964 (1997), that a CUTPA claim can be successfully brought against a physician. In that case, our Supreme Court stated: "[O]nly allegations of unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of the entrepreneurial, commercial, or business aspect of a physician's practice may be brought under the [consumer protection act]. Allegations that concern misconduct in the actual performance of medical services or the actual practice of medicine would be improper." (Internal quotation marks omitted.) Id., 37, quoting Nelson v. Ho, 222 Mich. App. 74, 83-84, 564 N.W.2d 482 (1997).
Janusauskas v. Fichman, 68 Conn. App. 672, 679 (2002).
The plaintiffs assert in the Eleventh Count of their complaint that:
The defendant, Bristol Hospital, performed certain acts that are set forth in detail in this Eleventh Count which fit CUTPA's definition of trade or commerce and which therefore state a cause CUTPA cause of action and said violations of CUTPA were done as a business or entrepreneurial practice designed with the intent of maintaining an Emergency Room with fewer staff, and a less well-trained staff, in order to increase revenue, reduce expenses and increase profitability of the defendant Bristol Hospital.
The allegations of the plaintiffs' complaint that allege a cause of action against the defendant concern the actual performance of medical services or the actual practice of medicine. The plaintiffs essentially assert that the business or entrepreneurial decisions that allegedly led up to the performance of medical services rendered to the plaintiffs' decedent makes this matter actionable pursuant to CUTPA. However to interpret the Supreme Court's holding to include such indirect business decisions without a more direct connection would cause the exception to entirely swallow the rule and render the Supreme Court's holding meaningless. The motion to strike the Eleventh Count is therefore granted.
In conclusion, the Motion to Strike is granted in part: Subparagraphs 17a through 17h and; 17j through 17o; 17t through 17aa, of the Fifth and Sixth Counts are ordered stricken. Subparagraphs 17i and 17p through 17s, inclusive may remain. The Eleventh Count is ordered stricken.
Richard A. Robinson, J.
October 7, 2003