Zenk-Pinter v. Showah

Full title: COLLEEN ZENK-PINTER v. HENRY J. SHOWAH, DDS

Court: Connecticut Superior Court Judicial District of Danbury at Danbury

Date published: Sep 23, 2010

2010 Ct. Sup. 18939 (Conn. Super. Ct. 2010)

Opinion

No. DBD DBCV-09-50073399-S

September 23, 2010

RULING ON MOTION TO STRIKE (#157.00)

MICHAEL G. MARONICH, Judge.

On June 17, 2010 the plaintiff filed the operative complaint in this matter in five counts. The first count sounds in negligence alleging that the defendant, dentist, who treated the plaintiff from March 1987 through March 2007, failed to exercise reasonable care by failing to diagnose that the plaintiff was suffering from tongue cancer. As a result the plaintiff suffered severe and painful personal injuries including stage II and stage III carcinoma of the tongue. On July 1, 2010 the defendant filed a motion to strike the second, third, fourth and fifth counts of the complaint as well as the prayer for relief seeking punitive damages.

"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 must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).

AS TO THE SECOND COUNT:

The defendant challenges the legal sufficiency of the plaintiff's second count, arguing that the plaintiff is attempting to assert a cause of action based on fraudulent concealment, that fraudulent concealment is an avoidance of an affirmative defense of the statute of limitations but does not give rise to a separate cause of action. The defendant mischaracterizes the allegations of the plaintiff's second count. The plaintiff does not allege that the defendant fraudulently concealed plaintiff's injuries or his own negligence rather it states that defendant misrepresented to the plaintiff that a doctor-patient relationship still existed when in fact the care of the patient had been transferred to another dentist. "The essential elements of an action in fraud are that a false representation was made as a statement of fact; that it was untrue and was known to be untrue by the party making it; that it was made to induce the other party to act on it; and that he did so act to his injury." Paiva v. Vanech Heights Construction Co., 159 Conn. 512, 515, 271 A.2d 69 (1970). "To constitute fraud by nondisclosure or suppression, there must be a failure to disclose known facts, and, as well, a request or an occasion or circumstance which imposes a duty to speak." Ceferatti v. Boisvert, 137 Conn. 280, 283, 77 A.2d 82 (1950). Reading the plaintiff's second count in a manner most favorable to sustaining its legal sufficiency, the court finds that the plaintiff has alleged sufficient facts to support a prima facie case of fraud. The defendant's motion to strike the second count is DENIED.

AS TO THE THIRD COUNT:

The plaintiff's third count sounds in civil conspiracy. The defendant moves to strike this count, asserting lack of legal sufficiency, for two reasons. The first reason is that a claim of civil conspiracy must be joined with an allegation of a substantive tort and that the tort which plaintiff claims in her second count, namely fraudulent concealment, does not give rise to cognizable cause of action, or in the alternative, that the plaintiff has not properly pleaded a cause of action in fraud in her second count. The court has already addressed this argument in the discussion above. The plaintiff's claim of civil conspiracy is joined to a properly pleaded count of fraud. See Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 647, 804 A.2d 180 (2002); Harp v. King, 266 Conn. 747, 779 n. 37, 835 A.2d 953 (2003). The defendant's second ground for his motion to strike is that the claim is barred by the intracorporate conspiracy doctrine. "Employees of a corporation acting in the scope of their employment cannot conspire with one another or with the corporation that employs them; each acts for the corporation and the corporation cannot conspire with itself." Day v. General Electric Credit Corp., 15 Conn.App. 677, 684, 546 A.2d 315 (1988), cert. denied, 209 Conn. 819, 551 A.2d 755 (1989). See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 770-71, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984). The doctrine only applies to employees "acting in the scope of their employment." The plaintiff argues that the allegations of the revised complaint may fairly be read to support the conclusion that the defendant was not so acting. The problem, however, is that the revised complaint does not expressly state that the individual defendant was not acting in the scope of his employment. In addition to its other allegations, "[t]he plaintiff must also allege that [the defendants] acted other than in the normal course of their corporate duties." Cole v. University of Hartford, 391 F.Sup. 888, 893 (D.Conn. 1975). For recent appellate authority to this effect, see General Refractories Co. v. Fireman's Fund Ins. Co., 337 F.3d 297, 313-14 (3d Cir. 2003); Leasehold Expense Recovery, Inc. v. Mothers Work, Inc., 331 F.3d 452, 463 (5th Cir. 2003); Jackson v. Columbus, 194 F.3d 737, 753 (6th Cir. 1999). The reason for this rule of pleading is that, while the intracorporate conspiracy doctrine is sometimes loosely referred to as a defense, it is actually part of the substantive law of conspiracy. Day v. General Electric Credit Corp., supra, 15 Conn.App. 684. The defendant's motion to strike the third count is GRANTED.

AS TO THE FOURTH COUNT:

The plaintiff's fourth count sounds in lack of informed consent. As the basis for this count the plaintiff claims that the defendant failed to obtain the plaintiff's informed consent prior to transferring her care to another dentist employed by him. It is the contention of the defendant that causes of action under the informed consent doctrine pertain to the risks or alternatives of a particular medical procedure or course of treatment. For this reason the defendant asserts that the allegations of the plaintiff's fourth count are legally insufficient. "Informed consent requires a physician to provide the patient with the information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy . . . In previous cases in which we have considered an alleged lack of informed consent, our inquiry has been confined to whether the physician has disclosed: (1) the nature of the procedure, (2) the risks and hazards of the procedure, (3) the alternatives to the procedure, and (4) the anticipated benefits of the procedure." (Citation omitted; internal quotation marks omitted.) Sherwood v. Danbury Hospital, 278 Conn. 163, 180, 896 A.2d 777 (2006). The plaintiff provides no authority that informed consent is a prerequisite to one physician referring a patient to another physician. The defendant's motion to strike the fourth count is GRANTED.

AS TO THE FIFTH COUNT: CT Page 18942

The plaintiff asserts that his fifth count sounds in intentional infliction of emotional distress. The defendant had initially addressed this count as though it were based on fraudulent misrepresentation. Indeed, the bulk of the allegations of the fourth count of the plaintiff's complaint, paragraphs six through ten, consists of recitations of a series of statements which the defendant made at his deposition in which he admitted to not informing the plaintiff in a number of ways and instances that she was no longer his patient. The plaintiff characterizes these as omissions as "misrepresentations." The court, however, will accept the assertion of the plaintiff and treat this claim as one sounding in intentional infliction of emotional distress. "In order to prevail on a claim of intentional infliction of emotional distress, the plaintiff must prove: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the 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 quotation marks omitted.) Petitte v. DSL.net, Inc., 102 Conn.App. 363, 375, 925 A.2d 457 (2007). In paragraphs twelve through fourteen the plaintiff alleges that as a result of the alleged "misrepresentations" the plaintiff continued to treat with the defendant's employee and her cancer went undetected. In paragraph fifteen the plaintiff asserts that the "representations made by the defendant at his December 4, 2009 deposition regarding the alleged transfer of the plaintiff's care in 1998 to Dr. Chahine are false and fraudulent and were made for the sole purpose of avoiding liability for his medical negligence . . . and he knew or should have known that said misrepresentations would cause an unreasonable risk of emotional harm to the plaintiff with resultant psychological sequelia." The plaintiff has already alleged in his first count that the plaintiff has suffered "great physical, mental and emotional pain and anguish." The plaintiff now asserts that the she has sustained "severe emotional distress and mental anguish" as a result of the statements made by the defendant during the course of his deposition. The plaintiff's fifth count fails for two reasons. First, the plaintiff has failed to allege that defendant's conduct was extreme and outrageous. Second, testimony which the defendant gave at his deposition is absolutely privileged. "It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy." (Internal quotation marks omitted.) Hopkins v. O'Connor, 282 Conn. 821, 830-32, 925 A.2d 1030 (2007). The defendant's motion to strike the fifth count is GRANTED.

AS TO THE PRAYER FOR RELIEF:

The defendant moves to strike the plaintiff's request for punitive damages in her prayer for relief. "Practice Book . . . § 10-39 . . . allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). "In an action for fraud, the plaintiffs are entitled to punitive damages, in addition to general and special damages . . . The [purpose] of awarding punitive damages is not to punish the defendant for his offense, but to compensate the plaintiff for his injuries . . . The rule in this state as to torts is that punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights." Whitaker v. Taylor, 99 Conn.App. 719, 730, 916 A.2d 834 (2007). Because the court has let stand the plaintiff's second count sounding in fraud, the court will also allow the request for punitive damages to stand. The defendant's motion to strike the request for punitive damages is DENIED.