Opinion
No. CV 10 6004265
January 14, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO. 123)
The plaintiff, Paul Deutsch, M.D., commenced the present action by service of process against the defendants, Backus Corporation DBA the William W. Backus Hospital (Backus), Richard Finley (Finley), Edward Fisher (Fisher), Anthony Alessi, M.D. (Alessi) and David Kalla, M.D. (Kalla), on May 19, 2010. The operative complaint is the revised complaint filed by the plaintiff on August 27, 2010.
The plaintiff's revised complaint alleges the following relevant facts. The plaintiff is a board-certified internist and registered pharmacist who resides and practices medicine in Norwich. He has medical staff privileges at Backus, which is a hospital located in Norwich. Finley is the vice president of network development at Backus. Fisher was a vice president and the chief information officer at Backus at the time of the events described in the revised complaint. Alessi and Kalla are members of Backus' medical staff. From July 2005 to June 2008, the plaintiff was accused of improperly accessing a patient's electronic medical records using another doctor's information for Backus' electronic medical records system on April 2, 2005 and then sending an anonymous complaint letter accompanied by copies of those records to the Connecticut Department of Public Health (department). Finley conducted investigations after the department told him about the letter. He was assisted by Fisher. Finley and Fisher concluded in July 2005 that the plaintiff was responsible for the security breach, based on electronic and video surveillance data showing that the plaintiff had accessed Backus' electronic medical records system using another doctor's information for the system at or around the time of the breach. The plaintiff denied the accusation and repeatedly asked to see the evidence upon which Finley and Fisher relied, to no avail. He finally saw the evidence in February 2006 and learned that it did not show him accessing Backus' electronic medical records system in the manner claimed by Finley and Fisher. Finley and Fisher, as well as the ad hoc committee appointed by Backus' medical executive committee, nonetheless continued to rely upon the evidence and represent it as illustrative of the plaintiff's improper conduct. Additional evidence that would have supported the plaintiff's denial of the accusation was destroyed and therefore made unavailable to him.
The plaintiff further alleges that in August 2005, Backus' medical executive committee, acting upon recommendations made by Finley and Gordon Van Nes, M.D., another member of Backus' medical staff, appointed an ad hoc committee to investigate the accusation against the plaintiff. Alessi and Kalla were members of the ad hoc committee. The medical executive committee held a meeting on September 19, 2005 to receive information from the ad hoc committee and, after considering the ad hoc committee's information, recommended that the plaintiff's medical staff privileges be suspended.
Several proceedings regarding the matter were conducted over the course of the next three years. The ad hoc committee prepared a supplemental report in October 2005 and presented it to the medical executive committee during a meeting on November 14, 2005. The medical executive committee voted to recommend that "corrective action" be taken against the plaintiff's medical staff privileges. It then held a meeting on December 1, 2005, pursuant to the plaintiff's right to appear before it prior to the finalization of the recommendation against him. During the meeting, the medical executive committee voted in favor of a motion to suspend the plaintiff's medical staff privileges for thirty-one days.
The allegations of the complaint continues. A hearing was held on February 21, 2006 for the plaintiff to appeal the medical executive committee's vote. The four-day hearing was overseen by Theodore Tucci, an attorney hired by the defendants. Tucci submitted a report and recommendation to the medical executive committee on May 8, 2006, in which he concluded that the plaintiff had engaged in the improper conduct with which he had been accused. The medical executive committee then held a meeting on July 17, 2006 to review Tucci's report and recommendation. It adopted the report and recommendation. The plaintiff appealed the adoption to Backus' board of trustees (board). The board heard the appeal on October 23, 2006 and remanded the matter back to the medical executive committee on November 9, 2006 with a list of questions to be answered. A supplemental hearing overseen by Tucci was held from February 21, 2007 to February 24, 2007. Tucci issued a supplemental report on June 15, 2007, in which he answered every question in favor of Backus and against the plaintiff. The plaintiff appealed Tucci's report to the board, which heard the appeal on December 10, 2007. On June 26, 2008, the board reversed the recommendation that the plaintiff's medical staff privileges be suspended and dismissed the matter against the plaintiff.
Additional facts will be set forth as necessary.
The following counts comprise the revised complaint. Count one is against Backus and sounds in vexatious litigation. Count two is against Backus and sounds in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. Count three is against all of the defendants and sounds in tortious interference with business expectancies. Count four is against Backus and sounds in breach of contract. Count five is against Backus and sounds in breach of the covenant of good faith and fair dealing. Count six is against all of the defendants and sounds in defamation. Count seven is against all of the defendants and sounds in invasion of privacy. Count eight is against all of the defendants and sounds in intentional infliction of emotional distress. Count nine is against all of the defendants and sounds in negligent infliction of emotional distress. Finally, count ten is against all of the defendants and sounds in tortious interference with contractual relations.
The plaintiff seeks temporary injunctive relief with respect to all ten counts and asks that the court order the defendants to do the following: cease their efforts against the plaintiff's personal and professional reputations; maintain the plaintiff's medical staff privileges; cease any activity which disrupts the plaintiff's practice of medicine as a member of Backus's medical staff, issue a notice to all members of Backus's medical staff about the events described in the revised complaint; issue a statement that exonerates the plaintiff and retracts all defamatory statements and misrepresentations made against him; and place a litigation hold on all documents, electronic data and recordings related to the present action. The plaintiff also requests that the court issue permanent orders with respect to all of his requests for temporary injunctive relief. He further requests that the court issue permanent orders that the defendants cease their interference with the plaintiff's patient relationships, make a public apology to the plaintiff in which they retract their defamatory statements and misrepresentations against him and take corrective action against the individuals responsible for the harm caused to the plaintiff by, inter alia, making referrals and reports to the United States attorney, the Connecticut chief state's attorney and the department. In addition to his requests for injunctive relief, the plaintiff also makes requests for monetary relief with respect to all ten counts of the revised complaint.
The defendants filed the present motion to strike and a memorandum of law in support thereof on September 13, 2010. The plaintiff in turn filed his objection to the motion and a memorandum of law in support thereof on September 30, 2010. The defendants then filed a reply memorandum on October 12, 2010, in response to which the plaintiff filed a reply memorandum of his own on October 15, 2010. The matter was heard at short calendar on October 18, 2010.
DISCUSSION
"Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39. "Practice Book . . . § 10-39 . . . allows for a claim of relief to be stricken only if the relief sought could not be legally rewarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). "[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.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).
"We take the facts to be those alleged in the complaint . . . 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 construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Id., 252-53. "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.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). Therefore, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
I. COUNT ONE: VEXATIOUS LITIGATION
General Statutes § 52-568 provides: "Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages."
"Vexatious suit is the appellation given in this [s]tate to the cause of action created by statute (General Statutes § 6148 [now General Statutes § 52-568]) for the malicious prosecution of a civil suit . . . which we have said was governed by the same principles as the common-law action of malicious prosecution . . . In a malicious prosecution or vexatious litigation action, it is necessary to prove want of probable cause, malice and a termination of [the] suit in the plaintiffs' favor . . . [Establishing] a cause of action for vexatious suit requires proof that a civil action has been prosecuted not only without probable cause, but also with malice . . . It must also appear that the litigation claimed to be vexatious terminated in some way favorable to the [plaintiff] therein." (Citations omitted; internal quotation marks omitted.) Hebrew Home and Hospital, Inc. v. Brewer, 92 Conn.App. 762, 766-67, 886 A.2d 1248 (2005).
The defendants move to strike the first count of the plaintiff's revised complaint for two reasons. First, the plaintiff has not alleged that the defendants commenced and prosecuted a "civil action or complaint" against him, because an internal hospital proceeding is not a "civil action or complaint." Second, the Supreme Court held in Harris v. Bradley Memorial Hospital and Health Center, Inc., 296 Conn. 315, 994 A.2d 153 (2010), that "favorable termination," which must occur in order for a plaintiff to bring a vexatious litigation cause of action, need not occur in order for a physician to challenge a hospital's decision to take adverse action against his or her medical staff privileges in court. The plaintiff objects by arguing that, contrary to the defendants' interpretation, CT Page 2908 Harris provides for a vexatious litigation cause of action based upon an internal hospital review proceeding.
Harris is legally distinguishable from and therefore inapposite to the present action. In Harris, the defendant hospital suspended the plaintiff physician's medical staff privileges, and the plaintiff subsequently brought an action against the defendant in which he alleged breach of contract, breach of the covenant of good faith and fair dealing, tortious interference with business expectancies and violation of CUTPA. The plaintiff did not allege vexatious litigation, and the Harris court therefore addressed the favorable termination issue outside of the vexatious litigation context. This is especially evident in the trial court's analysis of the issue: "Our appellate courts have now applied the favorable termination doctrine not only in malicious prosecution and vexatious litigation cases, but also in a variety of situations involving prior judicial and quasi-judicial proceedings against the plaintiff." Harris v. Bradley Memorial Hospital and Health Center, Inc., Superior Court, judicial district of New Britain, Docket No. CV 02 0516962 (August 20, 2007, Schuman, J.) ( 44 Conn. L. Rptr. 147, 151-52), overruled by Harris v. Bradley Memorial Hospital and Health Center, Inc., 296 Conn. 315, 994 A.2d 153 (2010).
A civil action "is defined in title 52 of the General Statutes, which governs civil actions. Specifically, General Statutes § 52-91 provides in relevant part that `[t]here shall be one form of civil action. The first pleading on the part of the plaintiff shall be known as the complaint . . .' Additionally, General Statutes § 52-45a sets forth the procedure governing the commencement of a civil action: `Civil actions shall be commenced by legal process consisting of a writ of summons or attachment . . . The writ shall be accompanied by the plaintiff's complaint . . . and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which is returnable.'" Director of Health Affairs Policy Planning v. Freedom of Information Commission, 293 Conn. 164, 174, 977 A.2d 148 (2009). In Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 555, 558, 944 A.2d 329 (2008), the court held that a prejudgment remedy application is not a civil action for the purpose of applying § 52-568 because, inter alia, the commencement of a civil action "with a signed writ of summons or attachment is a matter of significance," and "[i]ndividuals seeking a prejudgment remedy must attach an unsigned writ, summons and complaint to . . . a prejudgment remedy application." (Emphasis in original.)
This holding is unaffected by DeLaurentis v. New Haven, 220 Conn. 225, 249, 597 A.2d 807 (1991), in which the court concluded that the plaintiff "was not barred from bringing a vexatious suit action . . . simply because it [was] based on a proceeding that did not take place in a courtroom." In coming to its conclusion, the court noted that "most courts now agree with the Restatement (Second) of Torts, § 680, which permits liability for vexatious litigation, continuation or procurement of civil proceedings against another before an administrative board that has power to take action adversely affecting the legally protected interests of the other." (Internal quotation marks omitted.) Id., 248. The proceeding at issue in DeLaurentis was initiated, however, with a summons, consistent with the standard procedure for commencing a civil action. Id., 234.
The plaintiff in the present action has not alleged that the internal review process at issue was a prosecuted "civil action or complaint," and the court cannot infer from the factual allegations, even when taken as admitted and viewed in the light most favorable to the plaintiff, that the internal review process was initiated in accordance with the standard procedure for commencing a civil action. Furthermore, even though the Harris court described a hospital board as an "administrative type decision maker"; Harris v. Bradley Memorial Hospital and Health Center, Inc., supra, 296 Conn. 335; the proposition that an administrative proceeding may serve as the basis for a vexatious litigation claim has only been applied thus far to administrative proceedings overseen by public, not private, entities. See, e.g., Rioux v. Barry, 283 Conn. 338, 927 A.2d 304 (2007) (internal affairs investigation of police officer); Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 852 A.2d 703 (2004) (appeal of unemployment benefits hearing); Zeller v. Consolini, 235 Conn. 417, 667 A.2d 64 (1995) (zoning application and appeal therefrom). The court therefore concludes that the plaintiff has not alleged facts legally sufficient to state a vexatious litigation cause of action and grants the defendants' motion to strike the first count of the plaintiffs revised complaint.
II. COUNT TWO: VIOLATION OF THE CONNECTICUT UNFAIR TRADE PRACTICES ACT
"[Section] 42-110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining whether a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . . In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice." (Citations omitted; internal quotation marks omitted.) Ramirez v. Health Net of Northeast, Inc., 285 Conn. 1, 18-19, 938 A.2d 576 (2008).
The defendants move to strike the second count of the plaintiff's revised complaint for three reasons. First, the plaintiff has not alleged that the defendants engaged in prohibited conduct or that he suffered an ascertainable loss. Second, Harris provides that an internal hospital review proceeding does not qualify as an "unfair or deceptive act or practice" under CUTPA. Finally, the plaintiff has not alleged that a CUTPA violation occurred within the three-year statute of limitations provided by General Statutes § 42-110g(f). The plaintiff objects by arguing that his factual allegations are legally sufficient to state a CUTPA violation and that Harris is distinguishable because the trial court in Harris "found that the defendant based its decision on medical competence." (Internal quotation marks omitted.) Harris v. Bradley Memorial Hospital and Health Center, Inc., supra, 296 Conn. 351.
The court agrees with the defendants that an internal hospital review proceeding does not qualify as an "unfair or deceptive act or practice" under CUTPA. "[T]he touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services is implicated, aside from medical competence or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel." Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 38, 699 A.2d 964 (1997). "The purpose of the peer review process is to ensure that only physicians who are professionally competent enjoy privileges at hospitals." Harris v. Bradley Memorial Hospital and Health Care Center, Inc., supra, 296 Conn. 351. "[D]ecisions concerning whether a physician is entitled to staff privileges" are "matters relating to determinations of the professional competence and capability of a physician to practice medicine in a hospital setting." Owens v. New Britain General Hospital, 229 Conn. 592, 606, 643 A.2d 233 (1997).
The court therefore need not address the defendants' other arguments for striking the second count of the revised complaint.
An internal hospital review proceeding therefore does "not fall within the ambit of CUTPA" unless the proceeding implicates the subject health care provider's business or entrepreneurial activities. Harris v. Bradley Memorial Hospital and Health Care Center, Inc., supra, 296 Conn. 351. This holding is not limited by the fact that the trial court in Harris "found that the defendant based its decision on medical competence." (Internal quotation marks omitted.) Id. Other than by describing the defendants' conduct as an "unfair and deceptive trade practice" and the internal review process at issue as "administrative medical staff proceedings" in conclusory fashion, the plaintiff in the present action has not directly or inferentially alleged that the internal review process implicated the defendants' business or entrepreneurial activities. The plaintiff instead focuses on the legitimacy of the internal review process, alleging on multiple occasions that the defendants' conduct during it was "intentional, deceptive, unreasonable, unfair, unreasonable [sic] and arbitrary and capricious." These allegations are not sufficient to state the plaintiff's CUTPA cause of action, however, because they do not refer to "acts or practices in the conduct of trade or commerce." The court therefore concludes that the plaintiff has not alleged facts legally sufficient to state a CUTPA cause of action and grants the defendants' motion to strike the second count of the plaintiff's revised complaint.
III. COUNT THREE: TORTIOUS INTERFERENCE WITH BUSINESS EXPECTANCIES
"It is well established that the elements of a claim for tortious interference with business expectancies are: (1) a business relationship between the plaintiff and another party; (2) the defendant's intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss." Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27, 761 A.2d 1268 (2000). "The plaintiff need not prove that the defendant caused the breach of an actual contract; proof of interference with even an unenforceable promise is enough . . . A cause of action for tortious interference with a business expectancy requires that the defendant was guilty of fraud, misrepresentation, intimidation or molestation . . . or that the defendant acted maliciously . . . It is also true, however, that not every act that disturbs a contract or business expectancy is actionable . . . A defendant is guilty of tortious interference if he has engaged in improper conduct . . . [T]he plaintiff [is required] to plead and prove at least some improper motive or improper means. (Citations omitted; internal quotation marks omitted.) Biro v. Hirsch, 62 Conn. App. 11, 21, 771 A.2d 129, cert. denied, 256 Conn. 908, 772 A.2d 601 (2001).
The defendants move to strike the third count of the plaintiff's revised complaint for two reasons. First, neither Backus nor the individual defendants can be held liable for tortiously interfering with the business relationship between the plaintiff and Backus. Second, the plaintiff has not alleged that the defendants disrupted his business relationships with Backus or his patients. The plaintiff objects by arguing that the individual defendants acted outside the scope of their employment during the events described in the revised complaint and that the individual defendants interfered in his business relationship with Backus because their conduct negatively impacted his reputation and therefore his ability to receive referrals through and treat patients at Backus.
"[I]n order to satisfy the elements of tortious interference with prospective economic advantage . . . specific identification of a third party is required." Norden Systems, Inc. v. General Dynamics Corp., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 89 0101260 (November 8, 1990, Cioffi, J.) ( 2 Conn. L. Rptr. 766, 768). The plaintiff in the present action thus fails to state a legally sufficient tortious interference with business expectancies cause of action against Backus because he specifically identifies Backus, not a third party, as the other party in the business relationship at issue. He has also failed to state with legal sufficiency that the individual defendants tortiously interfered in his business relationship with Backus, because the general rule is that an agent may not be charged with having interfered in a business relationship involving the agent's principal. See Selby v. Pelletier, 1 Conn.App. 320, 327 n. 4, 472 A.2d 1285 (1984). "[A]n exception to the general rule applies if the agent did not act legitimately within the scope of his duty but used the corporate power improperly for personal gain." (Internal quotation marks omitted.) Metcoff v. Lebovics, 123 Conn.App. 512, 521, 2 A.3d 942 (2010). The plaintiff has not directly or inferentially alleged, however, that the individual defendants acted in their own best interests rather than Backus' best interests and therefore outside the scope of their employment.
The court further concludes that the plaintiff has failed to state with legal sufficiency that the defendants tortiously interfered in his business relationships with his patients because he has not alleged an actual loss and therefore has not alleged an interference. "[I]t is an essential element of the tort of unlawful interference with business relations that the plaintiff suffered actual loss . . . Thus, it must appear that, except for the tortious interference of the defendant, there was a reasonable probability that the plaintiff would have entered into a contract or made a profit." (Citation omitted; internal quotation marks omitted.) American Diamond Exchange, Inc. v. Alpert, 101 Conn.App. 83, 97, 920 A.2d 357, cert. denied, 284 Conn. 901, 931 A.2d 261 (2007). In Norden Systems, Inc. v. General Dynamics Corp., supra, 2 Conn. L. Rptr. 768, the court determined that the plaintiffs alleged losses of, inter alia, "future revenues and profits," "goodwill and reputation" and "future business prospects, going business value and market value" were "pure speculation," absent additional allegations demonstrating why the plaintiff would have made such gains without the defendant's tortious interference.
The losses alleged by the plaintiff in the present action that are relevant to his business relationships with his patients are "significant and irreparable harm to his professional and personal reputations and standing in the community" and "substantial financial losses." The court cannot read the complaint, however, even when taken as admitted and viewed in the light most favorable to the plaintiff, to demonstrate a reasonable probability that the plaintiff would have made such financial and reputational gains in his business relationships with his patients if not for the defendants' tortious interference. The plaintiff alleges that he continues to maintain active medical staff privileges at Backus. He does not directly or inferentially allege that he is likely to lose his active medical staff privileges in the foreseeable future. While he alleges that he has suffered and will continue to suffer reputational harm, he does not directly or inferentially allege that this harm has resulted in an actual loss of patients or patient referrals from Backus or other medical institutions or professionals in and around Norwich. The court therefore concludes that the plaintiff has not alleged facts legally sufficient to state a tortious interference with business expectancies cause of action and grants the defendants' motion to strike the third count of the plaintiff's revised complaint.
IV. COUNT FOUR: BREACH OF CONTRACT
"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." (Internal quotation marks omitted.) Chiulli v. Zola, 97 Conn.App. 699, 706-07, 905 A.2d 1236 (2006). In a breach of contract action involving a hospital's decision to take adverse action against a physician's medical staff privileges, "a substantial compliance test . . . is the proper test by which to measure whether a hospital has sufficiently complied with its bylaws in terminating a physician's medical staff privileges." Owens v. New Britain General Hospital, supra, 229 Conn. 604. The defendants move to strike the fourth count of the plaintiff's revised complaint for two reasons. First, the plaintiff cannot allege that Backus's bylaws are a contract per se and must therefore plead additional facts to meet the criteria for contract formation. Second, the plaintiff has not specified how the defendants failed to substantially comply with their bylaws. The plaintiff objects by arguing that he has pleaded such facts. Both parties rely upon Gianetti v. Norwalk Hospital, 211 Conn. 51, 557 A.2d 1249 (1989), to support their respective arguments.
In Gianetti, the court addressed two issues: (1) whether the bylaws of the defendant hospital were a contract between the plaintiff physician and the defendant and (2) whether the defendant's administrative decision not to reappoint the plaintiff to its medical staff was subject to judicial review. The court held: "Under traditional contract law . . . the [defendant's] medical staff bylaws, by themselves, do not constitute an enforceable contract between [the defendant] and the plaintiff. This is so because the governing board of the defendant already has a legal duty imposed by the Connecticut state department of health regulations to adopt bylaws, rules and regulations, including medical staff bylaws . . . The legal duty to adopt medical staff bylaws under the regulation, a fortiori, imposes a legal duty upon [the defendant] to abide by such bylaws . . . [B]ecause the hospital has this preexisting legal duty to adopt and abide by its medical staff bylaws, that hospital's agreement to do just that cannot constitute valid consideration to support an enforceable contract." (Citations omitted.) Id., 59-60.
The Gianetti court also held, however, that the defendant's "bylaws . . . became an enforceable part of the contract between the hospital and [the] physician" when the defendant granted medical staff privileges to the plaintiff because "[t]he hospital changed its position by granting medical staff privileges," which it was not required to do, "and the plaintiff physician likewise changed his position in doing something he was not previously bound to do, i.e., to `abide' by the hospital medical staff bylaws." Id., 63. The court elaborated: "It can hardly be said that the hospital must extend privileges to every physician who seeks them. Once this hospital, however, has agreed to extend privileges to a physician, the hospital has changed its position with reference to that physician. By agreeing to extend privileges to the plaintiff physician, the hospital has then done something that it was not already bound to do . . . In return . . . the plaintiff agreed to abide by its medical staff bylaws. Therefore, the requisite contractual mutuality was then present." Id., 62-63. The court further concluded: "Because issues of contractual rights and duties are subject to judicial review, it follows that because the [defendant's] medical staff bylaws are an integral part of the contractual relationship between the plaintiff and [the defendant], actions under these bylaws are also subject to judicial review." Id., 64.
The plaintiff in the present action alleges that he received a letter from Backus' chief executive officer, Thomas Pipicelli, on December 5, 2005, in which Pipicelli informed him of the medical executive committee's recommendation that the plaintiff's medical staff privileges be suspended for thirty-one days and the plaintiff's right to call and cross-examine witnesses in his defense. When this allegation is taken as admitted and viewed in the light most favorable to the plaintiff, the court may reasonably infer from it that the defendants agreed to extend medical staff privileges to the plaintiff and that the plaintiff agreed in exchange to abide by the defendants' bylaws. "[T]he requisite contractual mutuality was [therefore] present." Id., 63. Furthermore, the plaintiff has specifically alleged that Tucci, Backus' hearing officer, "disregarded clear and convincing evidence of [the plaintiff]'s innocence as required pursuant to the Backus Hospital Medical Staff Bylaws, Article 7, Section 7.6 (n) . . ." This allegation is legally sufficient under the fact pleading standard to inform the defendants of at least one bylaw with which they have allegedly failed to comply. The court therefore concludes that the plaintiff has alleged facts legally sufficient to state a breach of contract cause of action and denies the defendants' motion to strike the fourth count of the plaintiffs revised complaint.
Practice Book § 10-1 provides in relevant part: "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved . . ."
V. COUNT FIVE: BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
"Every contract carries an implied covenant of good faith and fair dealing requiring that neither party will do anything that will injure the right of the other to receive the benefits of the agreement." Habetz v. Condon, 224 Conn. 231, 238, 618 A.2d 501 (1992). In arguing about whether the court should strike the fifth count of the plaintiff's revised complaint, both parties rely upon the same arguments that they made with respect to the fourth count of the plaintiff's revised complaint. The court therefore denies the defendants' motion to strike the fifth count of the plaintiff's revised complaint for the same reasons that it denied the defendants' motion to strike the fourth count.
VI. COUNT SIX: DEFAMATION
"To establish a prima facie case for defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." Cwelinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). "A defamation action is based on the unprivileged communication of a false statement that tends either to harm the reputation of another by lowering him in the estimation of the community or to deter others from dealing or associating with him." Murray v. Schlosser, 41 Conn.Sup. 362, 364, 574 A.2d 1339 (1990). "To be actionable, the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion." Daley v. Aetna Life and Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999).
"[W]hen claiming defamation, [c]ertainty is required in the allegations as to the defamation and as to the person defamed; a complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom and to whom. A complaint is insufficient to withstand dismissal for failure to state a cause of action where, other than the bare allegation that the defendant's actions caused injury to the plaintiff's reputation, the complaint sets forth no facts of any kind indicating what defamatory statements, if any, were made, when they were made, or to whom they might have been made . . . If the plaintiff's pleadings are nebulous as to the identity of the speaker, audience and the type of statements made, it may be difficult for the defendants to plead any appropriate special defenses." Mendez v. Utopia Home Care, Inc., Superior Court, judicial district of Hartford, Docket No. CV 09 6006222 (November 5, 2010, Peck, J.).
The defendants move to strike the sixth count of the plaintiff's revised complaint for two reasons. First, the plaintiff has not alleged that a defamatory statement was published within the two-year statute of limitations provided by General Statutes § 52-597. Second, the plaintiff has not alleged facts sufficient to show that a defamatory statement that identified the plaintiff was published to a third person. The plaintiff objects to the motion by arguing that the defendants may not move to strike this count on the ground that the statute of limitations has run and that he has alleged facts sufficient to state a defamation cause of action.
"[O]rdinarily, [a] claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not by a motion to strike." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 344 n. 12, 890 A.2d 1269 (2006). "[W]hen [t]he parties agree that the complaint sets forth all the facts pertinent to the question [of] whether the action is barred by the [s]tatute of limitations [however] . . . it is proper to raise that question by [a motion to strike] instead of by answer." (Internal quotations marks omitted.) Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993). The parties in the present action have not agreed that the revised complaint sets forth all the facts pertinent to the question of whether the plaintiff's defamation cause of action is barred by the applicable statute of limitations. Accordingly, the court will not address the defendants' statute of limitations argument in deciding the motion to strike the sixth count of the plaintiff's revised complaint.
The plaintiff makes the following allegations that are relevant to the issue of whether he has sufficiently stated a defamation cause of action. In paragraph sixty-one of the sixth count of the revised complaint, he alleges that Finley stated during an August 17, 2005 ad hoc committee interview: "What the [April 2, 2005 surveillance] video showed was [the plaintiff] coming in through the MRI entrance, going through the mail room door and the charting area in [m]edical [r]ecords, then going to the [d]octors' [l]ounge and picking up two pieces of paper from the printer and then leaving the premises." In paragraph sixty-two, the plaintiff alleges that Fisher stated during an August 17, 2005 ad hoc committee interview that the plaintiff "`swiped into the [m]edical [r]ecords [d]epartment' around [the] time [during which the improperly accessed electronic medical records were printed] and shortly thereafter was seen on video taking documents from the printer so he was the person who had accessed and printed copies of [the] imaging reports [at issue] on April 2, 2005." In paragraph ninety-one, the plaintiff alleges that Alessi stated during the February 21, 2006 hearing: "Two reports were printed out which [the plaintiff] took from the printer and disappeared from the video. Those two pieces of paper were radiology reports being printed on that printer based on the logs we were following." The plaintiff alleges that these statements were false because they misrepresented the contents of the April 2, 2005 surveillance video. These allegations, however, even when taken as admitted and viewed in the light most favorable to the plaintiff, are insufficient to state a defamation cause of action against Backus, Finley, Fisher and Alessi.
"[The] distinction between fact and opinion cannot be made in a vacuum . . . for although an opinion may appear to be in the form of a factual statement, it remains an opinion if it is clear from the context that the maker is not intending to assert another objective fact but only his personal comment on the facts which he has stated . . . Thus, while this distinction may be somewhat nebulous . . . [t]he important point is whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker's or writer's opinion, or as a statement of existing fact." (Citation omitted; emphasis in original; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 111-12, 448 A.2d 1317 (1982).
In the present action, the plaintiff does not allege that Finley, Fisher and Alessi's respective statements were based upon their personal knowledge of the plaintiff's conduct on April 2, 2005. He instead alleges that their statements conveyed their conclusions of what they saw on the April 2, 2005 surveillance video. Based on Goodrich and these alleged facts, the court concludes that the three statements can only be read as expressions of opinion about what was seen on the April 2, 2005 surveillance video, not as statements of fact about the plaintiff's documented conduct. The plaintiff thus has not alleged facts sufficient to state a defamation cause of action against Backus, Finley, Fisher and Alessi and grants the defendants' motion to strike the sixth count of the plaintiff's revised complaint against them. Furthermore, because the plaintiff has not alleged that Kalla published a defamatory statement that identified the plaintiff to a third person, however, the court grants the motion to strike the count against him.
VII. COUNT SEVEN: INVASION OF PRIVACY
"The four categories of invasion of privacy are . . . (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's public life; or (d) publicity that unreasonably places the other in a false light before the public." (Citation omitted.) Id., 128. To establish an invasion of privacy by false light cause of action, a plaintiff must "show that (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." (Internal quotation marks omitted.) Honan v. Dimyan, 52 Conn.App. 123, 132-33, 726 A.2d 613, cert. denied, 249 Conn. 909, 733 A.2d 227 (1999).
The defendants move to strike the seventh count of the plaintiff's revised complaint for the reason that the plaintiff has not alleged facts sufficient to satisfy the publicity criterion of an invasion of privacy by false light cause of action. The plaintiff objects to the motion by arguing that he has alleged such facts. Specifically, he argues that he alleges that the defendants "published derogatory and untrue statements" about him to, inter alia, "members of the community," which includes the "members of the public of the Norwich area," where he practices and resides, and the readership of Connecticut Magazine, which named him "one of Connecticut's `Top Docs' for four consecutive years between 2003 and 2006."
The defendants also move to strike the count on the ground that the alleged defamatory statements are not stated in the revised complaint with sufficient specificity. For the reasons given with respect to the plaintiff's defamation cause of action, the court rejects the defendants' argument.
There is a difference between the "publication" requirement for a defamation cause of action and the "publicity" requirement for an invasion of privacy by false light cause of action. "Publication . . . includes any communication by the defendant to a third person. Publicity . . . means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication . . . It is one of a communication that reaches, or is sure to reach, the public . . . The distinction . . . is one between private and public communications." (Internal quotation marks omitted.) Senior v. Hartford Financial Services Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV 01 0808241 (January 14, 2002, Peck, J.) ( 31 Conn. L. Rptr. 268, 269).
In Senior, the court held that the plaintiff "failed to allege the requisite element of publicity in her count for false light invasion of privacy" because the count did "not make it clear that the information was communicated to the public at large, or to so many persons that the matter would be regarded as substantially certain to be one of public knowledge." Id. The court in Pickering v. St. Mary's Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 05 4002947 (June 29, 2005, Eveleigh, J.), likewise held that the plaintiff failed to state her invasion of privacy cause of action where her complaint "neither contain[ed] any reference to statements made beyond the hospital setting, nor . . . demonstrate[d] that these statements would have any likelihood of reaching a large audience or the public at large."
In light of Senior and Pickering, the court in the present action concludes that the plaintiff has not alleged facts legally sufficient to state an invasion of privacy by false light cause of action, because it cannot read the complaint, even when taken as admitted and viewed in the light most favorable to the plaintiff, to state whether or how the defendants' defamatory statements were disseminated beyond the context of the internal hospital review proceedings, such that they were "publicized." It rejects the plaintiff's argument that "the dissemination of information concerning an individual is in direct relation to the extent that person is someone of interest within a specific community . . . or the public at large." The defendants' defamatory statements did not turn into public as opposed to private communications simply because of the plaintiff's status as a "Top Doc" and a "well-respected . . . physician who has practiced . . . in Norwich . . . for over 24 years." The court therefore grants the defendants' motion to strike the seventh count of the plaintiff's revised complaint.
VIII. COUNT EIGHT: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
"In order for the plaintiff to prevail in a case for liability under . . . [the intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotations marks omitted.) DeLaurentis v. New Haven, supra, 220 Conn. 266-67. "All four elements must be established to prevail on a claim for intentional infliction of emotional distress." Muniz v. Kravis, 59 Conn.App. 704, 708-09, 757 A.2d 1207 (2002).
"Liability [for intentional infliction of emotional distress] has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!'" (Internal quotation marks omitted.) Morrissey v. Yale University, 268 Conn. 426, 428, 844 A.2d 853 (2004). "Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 19, 597 A.2d 846 (1991). "Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine." Appleton v. Board of Education, CT Page 2922 254 Conn. 205, 210, 757 A.2d 1059 (2000).
The defendants move to strike the eighth count of the plaintiff's revised complaint for the reason that the plaintiff has not alleged sufficiently "extreme and outrageous" conduct. The plaintiff objects by arguing that the alleged conduct is sufficiently "extreme and outrageous" because it was based on false representations and threatened both his personal and professional well-being.
In Dollard v. Board of Education, 63 Conn.App. 550, 552, 777 A.2d 714 (2001), the court held that the defendants' conduct was not "extreme and outrageous" for the purpose of allowing the plaintiff's intentional infliction of emotional distress claim to survive the defendants' motion to strike where the plaintiff alleged that the defendants "hypercritically examin[ed] every small detail of her professional and personal conduct" as part of a "concerted plan and effort to force the plaintiff to resign from her position or to become so distraught that they would have a colorable basis for terminating her employment." The court in Carnemolla v. Walsh, 75 Conn.App. 319, 332, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003), likewise held that the conduct at issue was neither extreme nor outrageous where the plaintiff alleged that she "was confronted by the defendants, who accused her of embezzling company funds and requested that she sign documents that purportedly were resignation and release forms," even though she was an "honest person who had never been accused of a crime."
In light of Dollard and Carnemolla, the court in the present action concludes that the defendants' alleged conduct, while potentially distressful and hurtful to the plaintiff, does not rise to the level of being "extreme and outrageous." The defendants' allegedly false representations and the internal review process that resulted from them cannot be reasonably characterized as "beyond all possible bounds of decency," "atrocious" or "utterly intolerable in a civilized society." Morrissey v. Yale University, supra, 268 Conn. 428. See Pinckney v. Miss Porter's School, Inc., Superior Court, judicial district of New Britain, Docket No. CV 08 5009273 (March 30, 2009, Tanzer, J.) (citing cases granting motions to strike intentional infliction of emotional distress claims and noting "those cases which have found a cause of action to exist have included physical abuse by a co-worker, such as punching and choking" or "racial, ethnic, religious or sexual attacks"). Because the plaintiff has not alleged facts legally sufficient to state an intentional infliction of emotional distress cause of action, the court grants the defendants' motion to strike the eighth count of the plaintiffs revised complaint.
IX. COUNT NINE: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
"To establish a claim of negligent infliction of emotional distress, a plaintiff must prove the following elements: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress. Our Supreme Court continually [has] held that in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 552-53, 938 A.2d 1269, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). The defendants move to strike the ninth count of the plaintiff's revised complaint for the reason that the plaintiff has not alleged facts sufficient to state that the plaintiff's emotional distress was a foreseeable result of the defendants' conduct. The plaintiff objects by arguing that he has alleged such facts.
"The foreseeability element in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm . . . In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm." (Internal quotation marks omitted.) Stancuna v. Schaffer, 122 Conn.App. 484, 490, 998 A.2d 1221 (2010). "[T]he foreseeability of the precise nature of the harm to be anticipated [is] a prerequisite to recovery even where a breach of duty might otherwise be found." (Internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002).
Neither the facts alleged in the present action nor the inferences that can be drawn from them sufficiently state that the defendants engaged in conduct that they knew or should have known would likely cause the plaintiff's severe emotional distress. Although the plaintiff does not allege that he was employed by Backus at the time of the events described in the revised complaint, he does allege that he performed professional duties at Backus and that the defendants' wrongful representations and actions related to and negatively impacted his professional reputation and livelihood. Workplace disciplinary proceedings, such as those upon which the plaintiff relies in bringing the present action, have been recognized as an insufficient basis for alleging conduct creating an unreasonable risk of causing severe emotional distress and foreseeability in support of a negligent infliction of emotional distress cause of action. See Perodeau v. Hartford, supra, 259 Conn. 757.
The Perodeau court determined: "[I]ndividuals in the context of an ongoing employment relationship . . . should expect to be subject to routine employment-related conduct, including [ inter alia] . . . disciplinary or investigatory action arising from actual or alleged employee misconduct. In addition, such individuals should reasonably expect to be subject to other vicissitudes of employment, such as workplace gossip, rivalry, personality conflicts and the like. Thus, it is clear that individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace . . . That is simply an unavoidable part of being employed." Id. Therefore, in the present action, the plaintiff's allegation that his severe emotional distress was foreseeable in light of the defendants' conduct during the disciplinary proceedings at issue is necessarily insufficient, because such disciplinary proceedings have been held to be a nonactionable basis for a negligent infliction of emotional distress cause of action. The court accordingly grants the defendants' motion to strike the ninth count of the plaintiff's revised complaint.
X. COUNT TEN: TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS
A tortious interference with contractual relations cause of action is similar to a tortious interference with business expectancies cause of action. "A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants' knowledge of that relationship, (3) the defendants' intent to interfere with the relationship, (4) the interference was tortious and (5) a loss suffered by the plaintiff that was caused by the defendants' tortious conduct." (Internal quotation marks omitted.) Appleton v. Board of Education, supra, 254 Conn. 212-13.
The plaintiff and the defendants in the present action dispute whether the plaintiff may bring a tortious interference with contractual relations cause of action against the defendants when the contractual relationship at issue is between the plaintiff and Backus. For the reasons stated in the court's discussion of the plaintiff's tortious interference with business expectancies cause of action, the court concludes that the plaintiff has failed to state with legal sufficiency that the defendants tortiously interfered in his contractual relationship with Backus. See Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn.App. 152, 168, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998) ("`an agent acting legitimately within the scope of his authority cannot be held liable for interfering with or inducing his principal to breach a contract between his principal and a third party, because to hold him liable would be, in effect, to hold the corporation liable in tort for breaching its own contract'").
The plaintiff and the defendants also dispute whether the plaintiff has alleged that the defendants disrupted his contractual relationships with his patients. Again, for the reasons stated in the court's discussion of the plaintiff's tortious interference with business expectancies cause of action, the court also concludes that the plaintiff has failed to state with legal sufficiency that the defendants tortiously interfered in his contractual relationships with his patients, because he has not alleged an actual loss and therefore has not alleged an interference. See Appleton v. Board of Education, supra, 254 Conn. 213. ("`Unlike other torts in which liability gives rise to nominal damages even in the absence of proof of actual loss . . . it is an essential element of the tort of unlawful interference with business relations that the plaintiff suffers actual loss.'").
The court thus grants the defendants' motion to strike the tenth count of the plaintiff's revised complaint.
XI. PRAYERS FOR INJUNCTIVE RELIEF
The plaintiff seeks temporary injunctive relief with respect to all ten counts of the revised complaint and asks that the court order the defendants to do the following: cease their efforts against the plaintiff's personal and professional reputations; maintain the plaintiff's medical staff privileges; cease any activity which disrupts the plaintiff's practice of medicine as a member of Backus's medical staff, issue a notice to all members of Backus's medical staff about the events described in the revised complaint; issue a statement that exonerates the plaintiff and retracts all defamatory statements and misrepresentations made against him; and place a litigation hold on all documents, electronic data and recordings related to the present action. The plaintiff also requests that the court issue permanent orders with respect to all of his requests for temporary injunctive relief. He further requests that the court issue permanent orders that the defendants cease their interference with the plaintiff's patient relationships, make a public apology to the plaintiff in which they retract their defamatory statements and misrepresentations against him and take corrective action against the individuals responsible for the harm caused to the plaintiff by, inter alia, making referrals and reports to the United States attorney, the Connecticut chief state's attorney and the department.
The defendants move to strike the plaintiff's prayers for temporary and permanent injunctive relief for the reason that they are unsupported by his allegations. The plaintiff objects by arguing that his allegations provide such support. The defendants' argument for striking the plaintiff's prayers for temporary and permanent injunctive relief consist of one page in their first memorandum in which they list the prayers for temporary and permanent injunctive relief, cursorily conclude that the plaintiffs allegations are inadequate or inappropriate support for them and provide no citations to legal authorities. "We have repeatedly stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned." (Internal quotation marks omitted.) Taylor v. Mucci, 288 Conn. 379, 383 n. 4, 952 A.2d 776 (2008). "When a memorandum of law fails to cite to any legal authority, the memorandum is functionally equivalent to no memorandum at all." (Internal quotation marks omitted.) Cabala v. JP Morgan Chase Bank, Superior Court, Docket No. CV 10 6008853 (August 5, 2010, Zoarski, J.T.R.). In the present action, the part of the defendants' memorandum addressing their motion to strike the plaintiff's prayers for temporary and permanent injunctive relief fails to cite to any legal authority, and therefore, it is functionally equivalent to a failure to have briefed the ground at all. The court thus denies the defendants' motion to strike the plaintiff's prayers for temporary and permanent injunctive relief with respect to all ten counts of the revised complaint.
XII. PRAYERS FOR MONETARY RELIEF
"Congress enacted the [Health Care Quality Improvement Act of 1986 (act)] in light of its findings that improving the quality of medical care is a national problem and that effective peer review, which is an important tool in ensuring quality medical care, is unreasonably discouraged by the threat of private money damage liability. Therefore, `[t]here is an overriding national need to provide incentive and protection for physicians engaging in effective professional peer review.' 42 U.S.C. § 11101(5). Accordingly, the act grants immunity from damages for those participating in a `professional review action' if the action was undertaken `(1) in the reasonable belief that the action was in the furtherance of quality health care, (2) after a reasonable effort to obtain the facts of the matter, (3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3).' 42 U.S.C. § 11112(a). Moreover, the act incorporates a presumption, rebuttable by a preponderance of the evidence, that a professional review action has met the preceding standards. 42 U.S.C. § 11112(a) (professional review action `shall be presumed to have met the preceding standards . . . unless the presumption is rebutted by a preponderance of the evidence'). Put simply, a plaintiff attempting to overcome the immunity protection of the act bears the burden of proving by a preponderance of the evidence that the professional review action was not undertaken in a reasonable manner." Harris v. Bradley Memorial Hospital and Health Center, Inc., supra, 296 Conn. 343.
Connecticut General Statutes § 19a-17b similarly provides in relevant part: "(b) There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person who provides testimony, information, records, documents, reports, proceedings, minutes or conclusions to any hospital, hospital medical staff, professional society, medical or dental school, professional licensing board or medical review committee when such communication is intended to aid in the evaluation of the qualifications, fitness or character of a health care provider and does not represent as true any matter not reasonably believed to be true. (c) There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any member of a medical review committee for any act or proceeding undertaken or performed within the scope of any such committee's functions provided that such member has taken action or made recommendations without malice and in the reasonable belief that the act or recommendation was warranted."
The defendants move to strike the plaintiff's prayers for monetary relief with respect to all ten counts of the revised complaint for the reason that they are barred by the act and § 19a-17b. The plaintiff objects by arguing that the defendants' claimed statutory immunity is an improper ground for a motion to strike and, in the alternative, that he has alleged facts sufficient to overcome it. The court agrees with the plaintiff. "The [act] speaks in terms of `reasonable' or `adequate,' which can be questions of fact. That these are questions of fact in the case of the [act] is clear from the language of the statute itself, which . . . provides that a defendant's review actions are presumed to meet each of the four requirements. This presumption, the statute relates, may be rebutted upon submission of proof `by a preponderance of the evidence.' 42 U.S.C. § 11112 (a). Because questions of law do not turn upon the satisfaction of evidentiary burdens, it is clear that the reasonableness or adequacy of a particular review action is a question of fact, to be resolved by the trier of fact." Reyes v. Wilson Memorial Hospital, 102 F.Sup.2d 798, 810 (S.D. Ohio 1998). Section 19a-17b, with its references to "any matter not reasonably believed to be true," "malice" and the "reasonable belief that the act or recommendation was warranted," also presents questions of fact. "[I]t is inappropriate to decide a question of fact on a motion to strike." (Internal quotation marks omitted.) Croteau v. American Medical Response of Connecticut, Superior Court, judicial district of New Haven, Docket No. CV 97 0256039 (July 22, 1997, DePentima, J.). The defendants' ground is thus procedurally improper, and the court denies their motion to strike the plaintiff's prayers for monetary relief with respect to all ten counts of the revised complaint.
CONCLUSION
For the foregoing reasons, the court grants the motion with respect to counts one, two, three, six, seven, eight, nine and ten. It denies the motion with respect to counts four and five, as well as with respect to the plaintiff's prayers for temporary and permanent injunctive relief for the remaining counts and monetary relief for the remaining counts.