Opinion
No. CV 09-5027120S
February 11, 2010
MEMORANDUM OF DECISION, ON DEFENDANTS' MOTION TO STRIKE
A Motion to Strike has been filed by the defendants against the first count which claims the standard of care was breached and the second count in which the allegations of the first count are incorporated but wherein it is alleged the defendants' actions "were done with reckless disregard of the rights of the decedent" in violation of section 19a-550(e) of the General Statutes.
Basically the complaint alleges the decedent Mr. Casanova was a patient at the defendant's health care facility. Paragraph 5 of the first count alleges it was the responsibility of the defendant Cedar Lane to provide proper care to Mr. Casanova and ensure his safety "including medicating, feeding, treating, and following a care plan implementing doctor's orders, restraining and overseeing Louis Casanova's medical needs." Paragraph 6 alleges that "on or about December 2, 2006 Louis Casanova fell sustaining injuries and damages." Paragraph 8 lists various allegations claimed to be violative of the standard of care. Paragraph 9 lists the alleged "severe and painful injuries and/or illness including fracture and dislocation of the left shoulder, aspiration pneumonia, weight loss, pain and suffering, anemia and in paragraph 9g, "Death."
1
The plaintiff moves to strike the first count arguing that the first count fails to set forth a viable claim. The first count does not reference the wrongful death statute, section 52-555. The defendants' argument is straight forward. It is no doubt true that: "Death at common law, is not a recoverable element of damage . . . The same rule applies to any element of damage directly flowing from death . . . In other words, death and its direct consequences, can constitute recoverable elements of damage only if, and to the extent that they are made so by statute, Furan v. Carangelo, 153 Conn. 356, 359 (1966). The defendant in support of its motion cites also Lynn v. Haybuster Manufacturing Inc., 226 Conn. 282, 295 (1993), which states that "The wrongful death statute, General Statute § 52-555, is the sole basis upon which an action that includes as an element of damages a person's death or its consequences can be brought." The defendants conclude their argument by saying "Further, Practice Book Section 10-3(a) requires citation of statutory authority for claims, as the plaintiff has not brought the first count pursuant to the wrongful death statute, it should be stricken."
However, the Court has held that the provisions of Practice Book § 10-3a are "directory rather than in mandatory" Michalski v. Hinz, 100 Conn.App. 389 (2007), followed this law. It said at page 394; "although our courts repeatedly have recognized that the rule embodied in Practice Book § 10-3 is directory not mandatory . . .; notice is the critical consideration in such instances. As this Court has observed, as long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery." Here it is apparent that the plaintiff had to rely on section 52-55s to make a claim based on the death of Mr. Casanova and the plaintiff made that clear in the response to the motion to strike, cf. Spears v. Garcia, 66 Conn.App. 669, 776 (2001). The motion to strike on this ground is denied as to the first count.
2
The second count repeats the allegations of paragraphs one through eleven of the first count. Paragraph 12 alleges that "the deficiencies in care alleged in paragraph 8 and the damages to the plaintiff stated herein were done with reckless disregard of the rights of the plaintiff's decedent in violation of Connecticut General Statutes § 19a-550(e). That statute sets forth what is called a "patient's bill of rights."
The Motion to Strike this count succinctly sets forth the defendants' argument, relying in the main on two cases;
As cited above, the wrongful death statute, C.G.S. § 52-555, provides the sole basis to bring a claim for wrongful death. Lynn v. Haybuster Manufacturing, Inc., 226 Conn. 282, 295 (1993). The Supreme Court has long held that where damages for death itself are claimed in an action based on wrongful death statute, ". . . recovery of any ante-mortem damages flowing from the same tort must be had, if at all, in one and the same action." Floyd v. Fruit Industries, Inc., 144 Conn. 659, 669 (1957). In Torres v. AMR of Connecticut, Inc., 2005 WL 1187155 (Conn.Super.) (Peck, J.) (copy attached), the court followed the exclusivity rule. "Clearly, however, the [wrongful death] statute was intended to bar plaintiffs from seeking recovery for death as damages under the wrongful death statute in one count and under an alternative theory of liability in a separate count that relies on the same conduct. Any other result would defy the rule that death is not recoverable as damages at common law." Id. at p. 6. Associated Herbert v. Fronter of NE Conn., 2004 WL 304, 277.
The Court of course accepts the legal argument made but has difficulty in applying it here given the nature of motion to strike practice which has long ago evolved from 18th century rigidity. Quoting from earlier cases, which will not be specifically mentioned, the court in Commissioner of Labor v. VJM Services, Inc., 268 Conn. 283, 292, 293 (2004) said:
We begin by setting out the well established standard of review in an appeal from the granting of a motion to strike. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling on the [defendants' motion] 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 . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It 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 . . . Indeed, pleadings must be construded broadly and realistically, rather than narrowly and technically . . .
As noted in the previous discussion of the motion as it was directed at the first count, paragraph 9g refers to "Death" as an element of damages. The court for the reasons stated did not strike that count for failure to allege the claim was made pursuant to the wrongful death statute. Paragraph 9 is incorporated in this count and the court concludes it is viable insofar as it claims damages under § 19a-550 as an element of a wrongful death claim under § 52-555 as an element of permissible damages. Plaintiff's counsel appeared to make that very argument when the motion was heard.
The court denies the motion to strike the second count on this ground. But the complaint is somewhat confusingly drawn so that pursuant to Practice Book § 10-1 the court instructs the plaintiff to explicitly refer to and incorporate its negligence claims pursuant to § 19a-550 by explicit reference to § 52-555.
3
The motion to strike also argues that the second count must be stricken because if "fails to set forth facts required to sustain a claim for reckless disregard of the decedent's rights pursuant to § 19a-550 of the General Statutes. The basic point made is by way of reference to the commonly accepted observation by the court in Dunnon v. Denehy, 145 Conn. 88, 91 (1958), which states that "there is a wide difference between negligence and reckless disregard of the rights or safety of others . . . simply using the word `reckless' or `recklessness' in the complaint is not enough." Numerous cases are cited for this proposition. Dubay v. Irish, 207 Conn. 518, 532 (1988), quoted from other cases to the effect that recklessness "is more than negligence." It can be inferred from conduct but to do so "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."
From the foregoing, the argument made by the defendants really comes down to this; at the end of this section of the brief it is said that "the plaintiff has failed to sufficiently allege that the defendants actions rose to the level of reckless disregard. Specifically he has merely incorporated the allegations of the negligence count in the second count and labeled the actions `reckless.'"
However, there is no analysis of the allegations made in paragraph 8 of the first count lying in negligence in that count nor is there any discussion as to whether any of those allegations fall within the ambit of § 19a-550. That will not support a motion to strike.
The Court will partly quote and paraphrase from a decision it wrote in 1998, Adams v. Champagne, 22 Conn. L. Rptr. 241. There is no reason why a plaintiff, relying on the same set of facts in a negligence count cannot set forth in a separate count a cause of action arising out of those same facts alleging recklessness, cf. Knapp v. Walker, 73 Conn. 459, 461 (1900). As our Supreme Court has said, reckless conduct is an aggravated form of negligence, Dubay v. Irish, supra. But included in that definition is a claimed departure from ordinary care which forms the basis of a negligence claim. So the question raised here is do we have in a reckless count facts setting forth facts alleged in a separate negligence claim which cannot support a recklessness claim and merely pin a different label on what is essentially a negligence theory. If we have a negligence count which sets forth facts that support a negligence claim, a motion to strike will not lie against a recklessness count which incorporates those facts, if they also support a reckless conduct theory of liability.
The discussion could stop here given the argument made, but even if the Court itself were to analyze the factual allegations of the first count it could not as a matter of law conclude a recklessness theory is not set forth. Subparagraph 10 of section C, of § 19a-550 which is relied on in the complaint states "one of the patient's rights is to "(receive) quality care and services with reasonable accommodation of individual needs and preferences, except where the health or safety of the individual would be endangered and is treated with consideration, respect, and full recognition of the patient's dignity and individuality, including privacy in treatment and in care for the patient's personal needs.
Keeping that general allegation in mind, the claim here is that the decedent was a resident in a health care facility and that in December 2006 he fell causing severe injuries and eventually death. Many of the twenty-six allegations in paragraph 8 of the first count which are incorporated in the second count are standard failure to provide reasonable care and treatment, failure to monitor and follow doctor's orders, failure to assess the patient etc. But several subparagraphs, i, n, o, and especially p, giving the complaint its most favorable reading, involve allegations that knowing of the plaintiff's particular condition, and medical problems involving impaired balance and gait the defendants failed to take measures to prevent his fall and injuries.
In the case law allegations of this type are one of the primary distinctions between negligence and recklessness. Thus in Matthiessen v. Vanech, 266 Conn. 822, 832 (2003), the court quoted from an earlier case to the effect that "Recklesssness requires a conscious choice of a course of action other either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man (sic) and the actor must recognize that his (sic) conduct involves a risk substantially greater . . . than that which is necessary to make his (sic) conduct negligent." (emphasis by Court) Both Matthiessen and Mingachos v. CBS Inc., 196 Conn. 91, 103 (1996), refer to comments Restatement (2d) torts which is even more explicit.
§ 500 Reckless Disregard of Safety Defined
The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
(Emphasis by Court.)
Also see Prosser, On Torts 5th ed, § 34, page 213 which says "the usual meaning assigned to `willful,' `wanton,' or `reckless,' according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probably that harm would follow and which is thus usually accompanied by a conscious indifference to the consequences." (Emphasis by Court.) Coupled with the Restatements reference to intentional failure to do an act "which it is his duty to the other to do," the allegations here pass muster in alleging reckless conduct even if they also form the basis of the negligence allegations.
4
The defendants finally claim that the second count brought pursuant to § 19a-550 is untimely. Pursuant to § 52-190a the plaintiff did obtain a ninety-day extension to allow a reasonable inquiry into whether there were good faith grounds for a claim of professional negligence in the care and treatment of the decedent. But, the defendants argue, the ninety-day extension of the limitations statute applies only to negligence claims not to recklessness claims such as those set forth in the second count. Because this action was commenced February 20, 2009 the second count is said to be untimely, the incident causing harm to the decedent took place on December 2, 2006; suit had to be commenced by December 2, 2008 because the two-year limitations statute applies. Section 52-584 states that "no action to recover damages for injury to the person, or to real or personal property, caused by negligence or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanitarium shall be brought but within two years from the date when injury is first sustained . . ."
The plaintiff argues the three-year statute of limitations (§ 52-577) applies. It is argued that § 19a-550 makes a claim for deprivation of rights and applies to all three mental states and thus § 52-577 applies citing Lopes v. Farmer, 286 Conn. 384 (2008), which it is argued held that three-year statute of limitations is applicable to federal deprivation of rights under 42 USC § 1983.
The problem is that Lopes never directly addressed the issue. Both sides agreed § 52-577 applied. Judge Radcliffe, the trial court, said that: "Because no specific provision of the general statutes establishes a limitation for the bringing a malicious prosecution action (the claim in Lopes) or an action in state court pursuant to 42 USC § 1983, the statute applicable to all torts, not specifically exempted, § 52-577 of the general statutes controls" see Lopes v. Farmer, 42 Conn. L. Rptr. 733 (Radcliffe, J., 2007). The Supreme Court on appeal went along with this conclusion. But query, does not § 52-584 specifically establish a limitation period for the conduct alleged here whereas it has nothing to do with a malicious prosecution claim for example?
It could be argued that Section 52-584 does not apply because the second count claim does not lie in common law "negligence" as such but is based on a statutory violation referencing negligent actions, that while still a tort, is not encompassed in § 52-584. But despite any difficulties with the plaintiff's argument along the foregoing lines the Court for other reasons has difficulty with granting the motion to strike on the basis of untimeliness. Even five assume § 52-584 applies here.
Our court has recognized the doctrine of equitable tolling of the statute of limitations, a common law doctrine. It has been recognized in a variety of contexts William v. CHRO, 257 Conn. 258 (2001), Gager v. Sanger, 95 Conn.App. 632 (2000). The doctrine is widely recognized, see 51 Am.Jur.2d, Limitation of Actions § 174 et seq., pp 563 et seq. There are only twelve reported Connecticut cases on the application of the doctrine, but the criteria for its application are not discussed. The Am.Jur. article notes that for the doctrine to apply wrongful conduct in preventing bringing of the action is not a requirement, § 174, page 564. This appears also to be the federal rule on equitable tolling, Abbott v. State, 979 P.2d 994, 997-98 (Alaska, 1999) (interpreting federal law) and no such argument is made here.
Abbott v. State, interprets federal law on the subject, stating the doctrine applies where ". . . (2) extraordinary circumstances outside the plaintiff's control make it impossible for the plaintiff to timely assert his or her claim (3) where the plaintiff by exercising reasonable diligence could not have discovered information essential to the suit," id. Also see Bernier v. Upjohn, 144 F.3d 178, 180 (CA 1, 1998), interpreting Massachusetts law.
Here we have a statutory scheme which gives a prospective plaintiff a 90-day extension beyond the limitations period to investigate a malpractice or professional negligence claim. This is done so the plaintiff can make a reasoned decision as to whether to commence litigation and in that regard gives a measure of protection to prospective defendants who might thereby be spared the burden of litigation. The prospective plaintiff accepts the legislature's solicitous offer of the 90 days — which by its granting, provides some recognition that the limitations period may not be enough time to accomplish the legislative purpose of 52a-190 requirements, the plaintiff receives the opinion letter which discloses the viability of a reckless claim and somehow he or she is precluded from advancing a reckless claim by what, under the circumstances, is a wooden application of the limitations statute? All of that does not strike the Court as equitable. Is reckless behavior by a medical institution or health professional easier to ascertain than a negligence claim? The equities, in the Court's opinion, permit the continuation of this litigation even if § 52-584 were held to apply.