Opinion
No. CV02 047001
July 9, 2003
MEMORANDUM OF DECISION MOTION TO STRIKE
Pursuant to Practice Book § 10-39, the defendant Somatic Therapies, LLC, has filed a motion to strike Counts One and Two of the plaintiff's complaint dated September 6, 2002, bearing a return date of October 15, 2002. The complaint was originally directed to defendants Jerome Schnitt, M.D. and Somatic Therapies, LLC. However on December 16, 2002, the court (Blue, J.) granted a motion to dismiss in favor of the defendant Schnitt. Somatic Therapies, LLC, is the sole remaining defendant.
Count One of the complaint alleges that the defendant's failure to administer a wide variety of chemical blood tests ordered by the court in the plaintiff's dissolution of marriage action caused her to expend money for legal representation and adversely affected her relationship with her children. Count Two, which incorporates the allegations of Count One in their entirety, additionally alleges that the defendant's conduct amounted to an unfair, deceptive act or practice, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110b.
The defendant argues that both counts should be stricken due to the fact that the allegations set forth by the plaintiff in Count One sound in a medical malpractice claim, and thus, the plaintiff has failed to attach a Certificate of Good Faith, as required by General Statutes § 52-190a. Additionally, the defendant argues that the CUTPA violation alleged in Count Two, cannot stand as the Connecticut Supreme Court has held that CUTPA does not apply in a professional negligence claim involving malpractice.
Sec. 52-190a. Prior reasonable inquiry and certificate of good faith required in negligence action against health care provider reads in relevant part:
(a) No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.
The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. For purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject to discovery by any party except for questioning the validity of the certificate, of a similar health care provider as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative, shall impose upon the person who signed such certificate, a represented party or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant's attorney submitted the certificate . . .
I
"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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, CT Page 8441 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn. App. 208, 211, 535 A.2d 390 (1988).
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 omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., supra. 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
II
The allegations of the complaint set forth that on or about June 10, 1998, the defendant was retained to administer a wide variety of chemical blood tests to the plaintiff pursuant to her dissolution of marriage action which was pending in the superior court. This testing was ordered by the court and agreed to by the plaintiff. The tests to be performed by Somatic Therapies were to be paid for by the plaintiff's former husband. The defendant agreed to perform the court-ordered tests, but the defendant subsequently failed to perform all of the tests ordered by the court. On September 14, 1999, the defendant's responsibility for performing the balance of the tests was terminated by the court.
The plaintiff in opposition to the motion to strike contends that Count One is a breach of contract action and Count Two is a CUTPA count. Therefore, as medical malpractice is not alleged, a "Good Faith Certificate" is unnecessary. Additionally, as Count One sounds in breach of contract and not from negligence for provision of medical care, the plaintiff may be entitled to relief under CUTPA. The plaintiff states at no point has she alleged a physician-patient relationship; nor does she allege a deviation from the prevailing standard of medical care or negligence. Rather, she simply makes a claim for a failure to perform services paid for.
The plaintiff, in arguing that not every action against a healthcare provider sounds in malpractice cites two superior court case to support her argument. In Fallo v. McLean Association, Inc., Superior Court, judicial district of New Britain at New Britain, No. CV99-0499101 (Jul. 17, 2001) (Shapiro, J.), 30 Conn.L.Rptr. 217, the plaintiff's decedent was a resident at a nursing home who broke her shoulder in a fall. The court held that despite the fact that the nursing home provided ninety minutes of hands-on medical care per day, the injuries alleged did not arise out of that treatment, and thus, they could be characterized as arising from simple negligence and not medical malpractice.
In Pascarelli v. Corning Clinical Laboratories, Inc., Superior Court, judicial district of Danbury, Docket No. 325312 (March 25, 1997) (Moraghan, J.), 19 Conn.L.Rptr. 82, a proceeding was instituted against the defendant, a blood testing facility. In a two-count complaint, the plaintiff alleged that on or about August 10, 1993, he gave blood to Corning for the purpose of being tested for the AIDS virus. He asserted that Corning performed an analysis of his blood and concluded that he was HIV positive. This was communicated to him by an HIV counselor. Upon hearing this result, the plaintiff requested another test, at which point the counselor stated that a second test was unnecessary because Corning had tested the blood twice and that there would be no further testing. Subsequently, between October and December 1993, the plaintiff submitted to three additional blood analyses at locations other than Corning, and each test was returned non-reactive, indicating that the plaintiff was not, in fact, infected with the HIV virus. In count one, the plaintiff alleged that Corning was careless and negligent in one or more of the following ways: (1) in that they knew or should have known that informing the plaintiff that his HIV test results were positive when, in fact, they were negative, involved an unreasonable risk of causing, and did cause, emotional distress to the plaintiff; (2) in that they knew or should have known that improperly reading the results of the plaintiff's HIV test involved an unreasonable risk of causing, and did cause, emotional distress to the plaintiff; (3) in that they knew or should have known that informing the plaintiff that his HIV test results were positive when, in fact, they were negative, without first requesting either a second opinion as to the test results or that the plaintiff undergo further testing, involved an unreasonable risk of causing, and did cause, emotional distress to the plaintiff; (4) in that they failed to provide the plaintiff with an explanation of the nature of AIDS and HIV-related illness and information about behaviors known to cause risk for transmission of HIV infections; and (5) in that, at the time the HIV-related test results were communicated to the plaintiff, they failed to provide him with counseling or referrals for counseling. A second count was brought under Sec. 19a-590 of the General Statutes. The plaintiff realleged the facts alleged in count one and asserted that his injuries were directly and proximately caused by the wilful acts and omissions of the defendant in failing to provide the plaintiff with information and counseling or referrals for counseling as required by Sec. 19a-582 (c) and (d) of the General Statutes.
The defendant Corning filed a motion to strike asserting that the entire complaint was legally insufficient in that the plaintiff failed to provide a good faith certificate as required by Sec. 52-190a of the General Statutes. The court (Moraghan, J.) determined that a blood testing facility could be construed as a "health care provider" under § 52-190a. However, the court determined that the plaintiff's claim in count one sounded in ordinary negligence, not medical malpractice because the plaintiff did not allege negligence in performing any medical procedure, but had claimed instead that the defendant breached a duty of ordinary care in informing the plaintiff that he was HIV positive when he was not. The Pascarelli court decided that there was no unique medical issues to be determined under the allegations of the case, and the court would not need to hear expert testimony to establish the standard of care owed to the plaintiff under the circumstances alleged. See Badrigian v. Elmcrest Psychiatric Institute, Inc., 6 Conn. App. 383, 386, 505 A.2d 741 (1986).
In the present case, however, the court determines that the defendant was sued in its medical capacity, therefore, requiring a certificate of good faith as provided by General Statutes § 52-190a. The absence, therefore, of this certificate from the complaint renders the complaint subject to a motion to strike. LeConche v. Elligers, 215 Conn. 701, 710, 579 A.2d 701 (1990). The remaining defendant Somatic Therapies, LLC and the dismissed defendant, Dr. Schnitt were sued in their medical capacities.
The plaintiff claims that Count One alleges a breach of contract, but Count One does not allege a contractual relationship with the defendants. It merely alleges that the plaintiff agreed to comply with a court order, wherein the defendants were retained to administer a wide variety of chemical blood tests to the plaintiff, and that the defendant was to be paid a fee by the plaintiff's former husband for those services. There are no allegations in the plaintiff's complaint that a contract existed between her and the defendants.
A breach of contract claim against a health care provider requires allegations of a breach of a contractual duty and that the parties contracted for a specific result. Rumbin v. Baez, 52 Conn. App. 487, 491, 727 A.2d 744 (1999); see also DiMaggio v. Makover, 13 Conn. App. 321, 324, 536 A.2d 595 (1988). The plaintiff fails to allege a breach of a contractual duty beyond the standard of care for a medical professional or that the parties contracted for a specific result. In Rumbin v. Baez, supra at 491-92, the court stated:
An allegation of medical malpractice does not generally give rise to a breach of contract claim. See Barnes v. Schlein, 192 Conn. 732, 735-36, 473 A.2d 1221 (1984); Camposano v. Claiborn, 2 Conn. Cir. Ct. 135, 137 (1963). A breach of contract claim is a distinct claim that may arise from the same facts and may exist where the physician and patient contract for a specific result. Camposano v. Claiborn, supra, 137. In DiMaggio v. Makover, 13 Conn. App. 321, 324, 536 A.2d 595 (1988), the plaintiff asserted a breach of contract claim against a psychiatrist who incompetently conducted a psychological evaluation of her at her employer's request and whose erroneous report resulted in her termination. Because we concluded that her claim sounded in malpractice and failed to disclose any breach of a contractual duty owed to her by the defendant, we affirmed the trial court's summary judgment against her . . . The plaintiff's substitute complaint contains no allegation of a breach of a contractual duty owed to him. There is no allegation that the parties contracted for a specific result. The claim is essentially a medical malpractice claim clothed in the language of contract. Therefore, we conclude that the trial court properly found that the plaintiff failed to state a breach of contract claim.
The plaintiff also does not argue that Count One alleges simple negligence rather than medical malpractice. Rather the plaintiff insists that Count One alleges a breach of contract. "In determining whether a claim is one in medical malpractice requiring a good faith certificate, other trial courts have distinguished between actions against a health care provider sounding in simple negligence and those sounding in medical malpractice. A good faith certificate has not been required where the court determined that it was a simple negligence action." Petronio v. Burich, Superior Court, judicial district of New Britain, No. CV01-05091305 (Apr. 23, 2002) (Wiese, J.), 32 Conn.L.Rptr. 156; see also Smith v. Mediplex of Westport, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 159274 (March 25, 1998, D'Andrea, J.) ( 21 Conn.L.Rptr. 495, 496). The test applied by these courts in determining whether the defendant's misconduct was medical malpractice or simple negligence was first formulated in Badrigian v. Elmcrest Psychiatric Institute, supra, 6 Conn. App. 387, a case dealing with negligent failure to supervise a patient who was struck by an automobile while on his way to lunch. That case held that there is no medical malpractice where the jury "need not be guided by medical experts in determining" whether the defendant breached its duty of care to the patient and there are "no esoteric or uniquely medical issue[s] to be determined . . . nor any complex issue requiring specialized knowledge." (Internal quotation marks omitted.) Petronio v. Burich, supra.
In her memorandum of law in opposition to the motion to strike, the plaintiff states "This, however, is not a medical malpractice action. It is a contact action . . ."
Count One is not a breach of contract claim and the plaintiff does not claim that it is a claim of simple negligence. The court, therefore, views it in the context of a medical malpractice claim. In order for the chemical blood tests to be performed as ordered by the court in the plaintiff's dissolution of marriage action, a physician must develop, monitor and interpret the results of the tests, all of which require the use of medical judgment and the skills of diagnosis. While the reasons that some of the chemical blood tests were not performed by the defendants are unknown to the court for the purposes of this motion, the court finds that standard of care issues could very well be raised, as the non-performance of certain blood tests by the defendants can be characterized as an omission in medical treatment requiring medical expert testimony to guide the jury in determining whether the defendant breached any duty of care that might be owed to the plaintiff. See, Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn. App. 353, 357-58, 764 A.2d 203 (2001); Fallo v. McLean Association, Inc., supra.
Having determined that Count One of the plaintiff's complaint is, in fact, allegations of medical malpractice, the "Certificate of Good Faith" required by § 52-190a is necessary and essential to the legal sufficiency of the plaintiff's complaint.
III
In her memorandum of law, the plaintiff has conceded that it is "unquestionably true" that a medical malpractice claim "may not give rise to a CUTPA action." "Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation." Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997). Only the entrepreneurial or commercial aspects of the medical profession are subject to CUTPA. Id. The plaintiff has not alleged conduct of the defendants that relates to the entrepreneurial or business aspect. Therefore Count Two does not set forth a claim for a violation of CUTPA and is actually a medical malpractice claim. See Smith v. Hillcrest Healthcare, Inc., Superior Court, judicial district of New London, Docket No. 0556851 (July 30, 2001, Martin, J.).
Our Supreme Court has made clear, in Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 699 A.2d 964 (1997), that a CUTPA claim can be successfully brought against a physician. In that case, our Supreme Court stated: "[O]nly allegations of unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of the entrepreneurial, commercial, or business aspect of a physician's practice may be brought under the [consumer protection act]. Allegations that concern misconduct in the actual performance of medical services or the actual practice of medicine would be improper." (Internal quotation marks omitted.) Id., 37, quoting Nelson v. Ho, 222 Mich. App. 74, 83-84, 564 N.W.2d 482 (1997). See also Janusauskas v. Fichman, 68 Conn. App. 672, 679, 793 A.2d 1109 (2002).
Accordingly for the reasons set forth herein, the defendant's motion to strike Counts One and Two of the plaintiff's complaint is hereby granted.
The Court
By: Arnold, J.