Summary
explaining that Superior Court decisions have consistently held that emotional distress on its own is not an ascertainable loss under CUTPA
Summary of this case from Alnabulsi v. Midland Funding, LLCOpinion
No. CV09-5022520S
September 15, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #103
FACTS
On February 19, 2009, the plaintiff, Sonia Builes, filed a four-count complaint against the defendants, Anya Kishinevsky, MD, and Darien Medical Arts, LLC (Medical Arts). The plaintiff alleges that on January 16, 2007, she underwent bilateral macromastia surgery performed by Kishinevsky at Bridgeport Hospital that resulted in permanent disfiguration of her breasts, daily pain and discomfort at the surgery site and severe emotional distress. Count one sounds in negligence as to Kishinevsky, count two in negligence as to Medical Arts, and counts three and four are directed against Kishinevsky and allege a lack of informed consent and an alteration of medical records in violation of General Statutes § 42-110a, et seq., the Connecticut Unfair Trade Practices Act (CUTPA).
Although the complaint states that the defendant's name is "Kashinevsky," "Kishinevsky" is the name used by the parties in the majority of the subsequent pleadings. Accordingly, this memorandum will refer to the defendant as Kishinevsky.
On April 23, 2009, the defendants filed a motion to strike count four, as well as a memorandum in support, to which the plaintiff filed a memorandum in opposition on June 24, 2009. The matter was heard at short calendar on June 29, 2009.
The motion to strike was purportedly filed on behalf of both defendants; the supporting memorandum, however, was filed on behalf of the defendant Kishinevsky. In any event, both the plaintiff and defendants indicate that count four was directed against both defendants. In fact, the fourth count of the complaint makes no reference to the Medical Arts defendant; the only defendant mentioned in count four is Kishinevsky. As such, I will refer to the movant as the defendant in the singular.
DISCUSSION
"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). "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.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, supra, 294. "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
In count four, the plaintiff specifically alleges: "9. Prior to commencing this action the plaintiff requested copies of her medical records from the defendant. 10. Before providing these records to the plaintiff, the defendant altered the original informed consent record by adding a handwritten paragraph to the bottom of the page, adding information that was not part of the original document signed by the plaintiff. 11. By altering a medical record to avoid proof of negligence, the defendant committed an unfair and deceptive act within the meaning of the Connecticut Unfair Trade Practices Act, [General Statutes §] 42-110b(a). 12 . . . the defendant caused the plaintiff to experience additional emotional distress by wrongfully changing the nature of the alleged informed consent that had been provided before surgery. 13 . . . [and] sought to obtain an unfair advantage over her competitors which is harmful to consumers, by performing surgery without devoting the time, resources and staffing necessary to obtain proper informed consent from Spanish speaking patients such as the plaintiff."
General Statutes § 42-110b(a) states: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."
Trade or Commerce under CUTPA — Entrepreneurial Aspects of Medical Practice
The defendant argues that the fourth count of the plaintiff's complaint is legally insufficient, as CUTPA only applies to trade or commerce. The defendant asserts that the "plaintiff's allegations do not relate to the entrepreneurial aspects of the defendant[s'] practice of medicine and, therefore, are insufficient to allege a proper cause of action in CUTPA against a physician." The defendant maintains that "the plaintiff has essentially attempted to cast negligence and lack of informed consent claims within the scope of a CUTPA violation" and that the plaintiff has failed to "claim that the defendant's actions were performed to market the defendant's practice or to enhance profits."
The plaintiff counters that "the Complaint contains all of the factual allegations necessary under Connecticut law to support a CUTPA claim," in that her CUTPA claim is not "based upon the way in which the surgery at issue was performed," but instead "the Complaint focuses on the unfair business practice of falsifying written records." The plaintiff argues that count four "alleges that the defendants failed to spend the resources necessary to properly staff their office so as to effectively communicate with non-English speaking patients to explain the risks of surgery" and that "the defendants failed to properly maintain their patient records so as to prevent them from being subsequently altered." The plaintiff further argues that "[t]hese allegations go directly to the entrepreneurial aspects of the practice of medicine, and are therefore covered by CUTPA."
Recovery under CUTPA is allowed only when a plaintiff meets the following two requirements: "First, [s]he must establish that the conduct at issue constitutes an unfair or deceptive trade practice . . . Second, [s]he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered." (Citations omitted.) A. Secondino Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990). More specifically, "CUTPA 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 . . . 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.) Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 213, 932 A.2d 401 (2007). "Thus, in order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, as a result of this act, the plaintiff suffered an injury." (Internal quotation marks omitted.) Id., 214. "The language `as a result of' requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff." Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 306, 692 A.2d 709 (1997). "It is well settled that in determining whether a practice violates CUTPA [the Connecticut Supreme Court] has adopted the criteria set out in the cigarette rule by the federal trade commission for determining when 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 business persons] . . . 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 lesser extent it meets all three." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).
Our Supreme Court has "previously . . . concluded that the provision of medical services falls within CUTPA's definition of trade or commerce as the distribution of any services . . ." Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 32, 699 A.2d 964 (1997). Moreover, "professional negligence — that is, malpractice — does not fall under CUTPA. Although physicians and other health care providers are subject to CUTPA, only the entrepreneurial or commercial aspects of the profession are covered . . ." Id., 34.
Specifically, "[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. Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation." (Internal quotations marks omitted.) Janusauskas v. Fitchman, 264 Conn. 796, 809, 826 A.2d 1066 (2003). "To hold otherwise would transform every claim for medical malpractice into a CUTPA claim. Accordingly, within this framework, [the court] must review the plaintiff's allegations of CUTPA violations and look to the underlying nature of the claim to determine whether it is really a medical malpractice claim recast as a CUTPA claim." Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 38. "[V]iolations predicated on negligence or malpractice, whether legal or medical, are not covered because those claims address only competence." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 213, 746 A.2d 730 (2000). "[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.) Janusauskas v. Fichman, 68 Conn.App. 672, 679, 793 A.2d 1109, cert. granted on other grounds, 261 Conn. 913, 806 A.2d 1054 (2002).
"Whether a practice is unfair and thus violates CUTPA is an issue of fact . . . The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court." (Internal quotation marks omitted.) De La Concha of Hartford v. Aetna Life Ins. Co., 269 Conn. 424, 434, 849 A.2d 382 (2004).
"There is a strong public policy argument for ensuring the accuracy of medical records . . ." Bruno v. Guelakis, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 06 5000424 (September 28, 2006, Taylor, J.). Although the court in Bruno granted the motion to strike due to an insufficient pleading of ascertainable loss, as the plaintiff failed to allege loss arising out of the alteration of the medical records, the court reasoned that "[t]here is no doubt that the alteration of a medical record to avoid proof of negligence, as alleged, is an unfair or deceptive act within the meaning of CUTPA."
In the present case, as in the Bruno case, there is no doubt that the alleged practice of altering medical records to avoid negligence claims is a proper claim under CUTPA. Accordingly, the plaintiff's allegation of deceptive practices in paragraph eleven of count four, of "altering a medical record to avoid proof of negligence," is sufficiently pleaded.
Ascertainable Loss
The defendant further argues that the plaintiff has not alleged an ascertainable loss pursuant to CUTPA as a result of the defendant's alleged conduct. The defendant asserts that the only claim for damages alleged by the plaintiff "as a result of the defendant's alleged alteration of the medical records is for emotional distress [and] Connecticut courts . . . have previously held that similar injuries do not present an `ascertainable loss' compensable under CUTPA." Lastly, the defendant asserts that the plaintiff's claim that she suffered disfigured breasts does not relate to the defendant's alleged alteration of the medical records after the surgical procedure.
In response, the plaintiff argues that she clearly alleges that she "sustained ascertainable injuries as a result of the defendant's failure to properly explain the risks of the procedure to her and by subsequently altering her records in an attempt to cure this problem." The plaintiff points out that the Connecticut Supreme Court, in Stearns Wheeler, LLC v. Kowalsky Bros., Inc., 289 Conn. 1, 10, 955 A.2d 538 (2008), stated that the CUTPA claim would include a claim for personal injuries asserted against an employer, and that, therefore, this court should follow the line of Superior Court cases that allow for emotional distress damages in a CUTPA claim.
As stated previously, § 42-110g(a) provides that "[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 method, act or practice prohibited by [§]42-110h, may bring an action . . . to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper." (Emphasis added.)
A claim under CUTPA "is remedial in character . . . and must be liberally construed in favor of those whom the legislature intended to benefit." (Internal quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 379, 880 A.2d 138 (2005). "The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief. Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation . . . An ascertainable loss is one that is capable of being discovered, observed or established . . . The term loss . . . has been held synonymous with deprivation, detriment, and injury . . . To establish an ascertainable loss, a plaintiff is not required to prove actual damages of a specific dollar amount . . . [A] loss is ascertainable if it is measurable even though the precise amount of the loss is not known . . . A plaintiff also must prove that the ascertainable loss was caused by or `a result of,' the prohibited act . . . When the plaintiffs seek money damages, the language `as a result of' in § 42-110g(a) requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff . . . With regard to the requisite causal element, it is axiomatic that proximate cause is [a]n actual cause that is a substantial factor in the resulting harm . . . The question to be asked in ascertaining whether proximate cause exists is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's act." (Citations omitted; internal quotation marks omitted.) Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 218, 947 A.2d 320 (2008).
"A survey of case law reveals that there are no appellate decisions as to whether emotional distress or injury constitutes an ascertainable loss under CUTPA. The few Superior Court cases on this issue have determined that emotional distress or injury is not an `ascertainable loss' capable of compensation. Printed Circuits Unlimited, Inc. v. Sensor Switch, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 91 0288532 (October 23, 1996, Stevens, J.); Ross v. Company Store, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 91 0115710 (October 1, 1991, Ryan, J.) ( 6 C.S.C.R. 942) [ 5 Conn. L. Rptr. 62]; Murphy v. McNamara, 36 Conn.Sup. 183, 195-96, 416 A.2d 170 (1979)." Barney v. Downer Funeral Home, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0175648 (August 13, 2001, Lewis, J.T.R.); see also Rees v. Flaherty, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 01 0077316 (June 7, 2002, Scholl, J.) ( 32 Conn. L. Rptr. 292, 293) (holding that claims for "emotional distress . . . [are] . . . types of damages [that] do not appear to come within the meaning of ascertainable loss or actual damages as contemplated by the CUTPA statute"); Lane v. First Union National Bank, Superior Court, judicial district of New Haven, Docket No. CV 01 0446552 (April 19, 2002, Thompson, J.) (holding that "emotional distress is not an `ascertainable loss' under CUTPA"); Jaworski v. Anderson, Superior Court, judicial district of Hartford, Docket No. CV 94 537265 (August 7, 2001, Schuman, J.) (holding that "emotional distress damages are not available under CUTPA"). This view has most recently been adopted in Deutsche Bank v. Lichtenfels, Superior Court, judicial district of New Haven, Docket No. CV 04 4003402 (June 17, 2009, Corradino, J.) [ 48 Conn. L. Rptr. 133], where the court held that for the purposes of "ascertainable loss" under CUTPA, "`ascertainable loss' . . . does not appear to envisage a recovery for emotional distress." Id.
Although there is no recent case law supporting the opposing view, the court in Salomonson v. Billistics, Inc., Superior Court, judicial district of New London, Docket No. CV 88 508292 (September 27, 1991, Freeman, A.T.R), citing to Haesche v. Kissner, Superior Court, judicial district of New Haven, Docket No. 259062 (August 15, 1989, Berdon, J.) ( 4 CSCR 718, 719), did state that "`ascertainable loss' includes mental or emotional distress." In Haesche, the court held that `"actual damages' recoverable under CUTPA surely include damages for emotional distress caused by the defendant's CUTPA violations."
Similar to the present case, the plaintiff in Bruno v. Guelakis, supra, alleged that "by altering his medical records, the defendant violated CUTPA." The case arose out of the erroneous extraction of a healthy tooth, as well as the alleged subsequent alteration of medical records. The defendant moved to strike the CUTPA count due to a failure to properly plead an ascertainable loss, and on the basis that the plaintiff's allegations did not involve the entrepreneurial aspects of the medical practice. The court granted the motion to strike because, although the court did not question that the plaintiff suffered injury/loss from the erroneous extraction, "the plaintiff [did] not allege ascertainable loss based on the alleged erroneous extraction but, instead, she [made] the generalized allegation of injury due to the alteration of her medical records."
In the present case, the plaintiff alleges emotional distress as her only damages relating to the alleged alteration of the medical records. Any other injuries alleged relate to the actual medical treatment, and not to the alleged alteration of the records, which is the basis for the CUTPA claim. Accordingly, count four is insufficient as the plaintiff failed to properly plead ascertainable loss.
CONCLUSION
For the reason that the plaintiff fails to plead ascertainable loss sufficient under CUTPA, the motion to strike count four of the plaintiff's complaint is granted.