Opinion
No. CV 06 5003326
March 7, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE MALPRACTICE COUNT AGAINST DOCTOR EMPLOYEE NOT NAMED AS DEFENDANT
Plaintiff Lorraine Green has filed a five-count complaint alleging negligence, lack of informed consent, negligent misrepresentation, breach of contract, and fraud, respectively, against the defendants Nupur Narain and the Center for Esthetic Dentistry, LLC (Center). This dispute arises out of extensive dentist work allegedly performed on the plaintiff by Lorraine Narain, and James Heise, dentists employed by the Center.
In paragraph 5 of Count One of the complaint the plaintiff alleges that "[a]t all times . . . the defendant Dr. Narain and Dr. Heise were employees of the defendant Center . . . acting within the scope of their employment."
The defendants have filed a motion to strike count one of the plaintiff's complaint. The defendants argue that the count should be stricken because 1) the Center itself cannot commit malpractice, and, therefore, is not an appropriate party, and 2) it alleges malpractice by Dr. James Heise, who has not been named a party to this action. The remaining four counts are also subject to the defendants' motion to strike, to the extent that the counts incorporate any alleged wrongdoing of Dr. James Heise. The plaintiff has filed a memorandum of law in opposition to the motion. In her memorandum she argues that Dr. James Heise is not a defendant in the action and has been properly alleged to be an agent, servant, and/or employee of the Center. The plaintiff further argues that the issue of Dr. James Heise's absence from the action has been raised by the defendants twice and has been denied by the court on both occasions.
The plaintiff cites to the defendants' Motion to Dismiss (Docket No. 104), which was denied by the court on May 16, 2006, and to the defendants' Request to Revise (Docket No. 108). The motion to dismiss was filed by Dr. James Heise alleging that the court does not have personal jurisdiction over him because he is not a named party or has received service of process. The request to revise asked for all portions of the complaint referring to Dr. Heise to be deleted because he is not a named party. The objections to the request to revise were sustained.
A. Whether Dr. James Heise is an indispensable or necessary party to this action
The defendants' motion to strike count one of the plaintiff's complaint as regards Dr. Heise, and any portions of the remaining counts that incorporate the allegations as to him is predicated upon the claimed ground of nonjoinder of a necessary party.
In count one, Dr. James Heise is described as an employee of the Center acting within the scope of his employment while allegedly performing substandard dental work on the plaintiff. "[The plaintiff's] injuries were caused by the negligence of Dr. Narain, and Dr Heise, for whose negligence the Center for Esthetic and Restorative Dentristry, LLC is responsible . . ." [Complaint, para 25].
At oral argument, the defendants argued that Heise is an indispensable party due to the nature of the medical practice. The defendants argue that litigation involving the alleged malpractice of a doctor can have a greater effect than just the imposition of personal liability, and, therefore, the case cannot go forward without affecting Dr. James Heise's interests. For example, the defendants maintain that his reputation as a doctor can be negatively affected by this action, and as a result, he has a different interest at stake than the interests of the Center. In response, the plaintiff argues that he need not be named as a defendant because the complaint alleges that since he as acting as an employee of the Center, the Center is liable for his alleged malpractice.
"[A]s set forth in Section 10-39, the exclusive remedy for nonjoinder of parties is by motion to strike." (Internal quotation marks omitted.) Bauer v. Souto, 277 Conn. 829, 839, 896 A.2d 90 (2006). "Indispensable parties must be joined because due process principles make it `essential that [such parties] be given notice and an opportunity to protect [their] interests by making [them] a party to the [action]'" Napoletano v. CIGNA Healthcare of Connecticut Inc., 238 Conn. 216, 225-26 n. 10, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997). "[The Connecticut Supreme Court] ha[s] defined indispensable parties as persons whose interest in the controversy is such that a final decree cannot be made without either affecting that interest or leaving the controversy in such condition that its final disposition may be inconsistent with equity and good conscience." (Internal quotation marks omitted.) McBurney v. Cirillo, 276 Conn. 782, 793 n. 14, 889 A.2d 759 (2006).
An "agent is generally not a necessary party of an action against a principal. `A plaintiff has the right to sue either agent or principal, or both, or either master or servant, or both.' Beach v. Milford Ice Co., 87 Conn. 528, 536, [ 89 A. 181 (1913)]." Yale New Haven Hospital v. Orlins, Superior Court, judicial district of New Haven, Docket No. CV 6 10396 (May 12, 1992, Levin, J.) [ 6 Conn. L. Rptr. 364, 368] ( 7 C.S.C.R. 711, 713) "If [the plaintiff] chooses to sue the agent or servant alone, he must abide by his choice. Liability for the servant's or agent's acts should be determined in a single action; the public interest and public policy require it, and private interests are thereby subserved." Beach v. Milford Ice Co., 87 Conn. 528, 536, 89 A. 181 (1913). See, e.g., Greathouse v. Northwestern Mutual Life Ins. Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0194765 (February 9, 2005, Lewis, J.T.R.) ( 38 Conn. L. Rptr. 649) (holding that an agent of an insurance company is not a necessary party to an action arising out of the insurance policy sold by the agent because the agent does not have a personal stake in the subject matter or outcome).
Taking the facts to be those alleged in the complaint, as required for a motion to strike, the Court finds that Dr. James Heise is not a necessary party to this action. The plaintiff has chosen to pursue her case against the principal of Dr. James Heise, describing his acts as those of the principal. Finally, it should be noted that Dr. James Heise has not filed a motion to intervene, and neither party has moved to cite him in as a necessary party.
B. Whether the Center for Esthetic Dentistry, LLC, as a healthcare provider, is an appropriate party in the present action
The defendants also argue that the complaint incorrectly alleges that the Center for Esthetic Dentistry, LLC, (hereafter Center) is independently liable for the alleged malpractice because the Center, as a corporate entity, cannot commit malpractice, and, therefore, cannot be held independently liable for the plaintiff's claim in the present case. The defendants acknowledge, however, that the Center can be found vicariously liable for the acts of its employee doctors, but argues that the complaint alleges negligence by an employee doctor, Dr. James Heise, who has not been named a party to this action, and, consequently, vicarious liability cannot be extended to the Center for his actions.
In response, the plaintiff argues that the motion to strike should be denied because she has properly pleaded a cause of action against the Center for the acts of its agents, servants, and/or employees.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The court is limited "to a consideration of the facts alleged in the complaint. A `speaking' motion to strike (one imparting facts outside the pleadings) will not be granted." Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Rizutto v. Davidson Ladders, Inc., 280 Conn. 225, 229, 905 A.2d 1165 (2006).
For the plaintiff to establish an actionable claim of medical malpractice against the Center, she must satisfy the requirements of General Statutes § 52-184c. That statute provides in relevant part: "In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider." According to General Statutes § 52-184b: "`health care provider' means any person, corporation, facility or institution licensed by this state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment." (Emphasis added.)
At oral argument, the defendants argued that the Center cannot commit medical malpractice because it is not a licensed health care provider. The plaintiff, however, does not allege in her complaint that the Center is primarily liable for medical malpractice as a health care provider. Rather than alleging primary liability, the plaintiff alleges that the Center's liability is predicated on an agency relationship existing between the allegedly negligent doctors and the Center as the doctors' employer. The complaint asserts that both Nurain and Dr. James Heise, the employees whose conduct can be imputed on their employer, are licensed to practice dentistry in Connecticut. The complaint further alleges that the two doctors were employees of the Center during the relevant time period, and acted within the scope of their employment while treating the plaintiff.
"[U]nder the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment." Matthiessen v. Vanech, 266 Conn. 822, 839, 836 A.2d 394 (2003). Taking the facts to be as alleged in the complaint, the Court finds that the plaintiff has pleaded a sufficient cause of action for medical malpractice against the Center, by properly pleading an agency relationship, in which it has named Dr. Nupur Narain as an employee. While it is true that the Center cannot be held primarily liable because it is not a licensed health care provider, it can still be held vicariously liable for the acts of its agents.
The defendants also argue that the Center cannot be held vicariously liable for the acts of an agent who has not been named as a defendant in the action. In Ali v. Community Health Care Plan Inc., 261 Conn. 143, 801 A.2d 775 (2002), however, the Supreme Court affirmed the judgment of the trial court finding a corporate entity liable for acts of its employee that amounted to medical malpractice. "[T]he plaintiff's theory of the case at the trial court was one of vicarious liability. In other words, under the doctrine of respondeat superior, the defendant could be held liable for the negligent acts of its employee . . ." Id., 151
Conclusion
Construing the facts alleged in the complaint in a manner favoring plaintiff Lorraine Green, the Court finds that she has properly pleaded a cause of action against the Center under principles of agency. The fact that one of the employees whose conduct was imputed to the Center was not named as a defendant does not eviscerate the plaintiff's cause of action.
Accordingly, the defendant's Motion to Strike is denied.