Opinion
FSTCV146022177S
11-24-2015
Johanna Krayeski v. Greenwich Hospital
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#141.00)
Kenneth B. Povodator, J.
Nature of the Proceeding
The case and the issues presented in the pending motion to strike are summarized by the plaintiffs in the opening paragraphs of their objection to the motion:
This is a traumatic birth-medical malpractice action brought by Jami and Justin Krayeski on behalf of their daughter, Johanna Krayeski. Johanna sustained serious injuries to her left brachial Plexus when she was born on February 14, 2012, and Jami Krayeski, a plaintiff in her own right, sustained severe emotional distress during the labor and delivery of Johanna . . .
All of the defendants, Greenwich Hospital, Dr. Patricia Close, Dr. Romelle Maloney, Dr. Elizabeth Molinelli and Putnam Gynecology & Obstetrics of Greenwich, P.C. have moved to strike allegations of apparent agency between the Greenwich Hospital and its co-defendants as well as the emotional distress claim brought by Jami Krayeski . . .
Of some significance (as will be apparent, below) is the timing of events related to this motion--the motion (#141.00) was filed on 4/28/15; the objection (#144.00) was filed on 5/29/15; and the motion was argued on 7/27/15. (A reply (#146.00) was filed by the defendants on 6/24/15.)
Discussion
Before addressing either of the substantive issues identified in the second quoted paragraph above, there is a procedural issue that implicates the ability to address the apparent agency argument. Paragraphs 2 through 4 of the first count of the complaint, in turn incorporated into subsequent counts, alleges that each of the individual defendants was a " servant, agent, apparent agent and/or employee of the defendant GREENWICH HOSPITAL." The portion of the motion to strike addressing apparent agency asks that all references to " apparent agent" be stricken, stating the reasons why the defendants believe that such allegations are improper. The plaintiff's object, claiming that a motion to strike is intended to strike an entire complaint or an entire count, but not individual paragraphs or portions of paragraphs. Although the defendants filed a reply, that reply did not address this procedural issue.
The starting point is the Practice Book and especially § 1-8: " the design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice." Although not generally stated in these terms, the purpose of a motion to strike (and other pre-trial motion practice) is to allow the court and parties to focus on the true issues that need to be litigated, while removing issues that are alleged but that should not be allowed to remain in the case for trial due to legal insufficiency. " [The] purpose of pleadings is to frame, present, define, and narrow the issues and to form the foundation of, and to limit, the proof to be submitted on the trial . . ." Pierce v. Commissioner of Corrections, 158 Conn.App. 288, 310-11, 118 A.3d 640 (2015) (internal quotation marks and citation, omitted).
The language used in the rules pertaining to motions to strike contemplates complaints (including counterclaims and cross claims) and counts thereof; see, Practice Book § 10-39. The actual analysis of a motion to strike, however, often is framed in terms of whether the allegations establish a cause of action. See, e.g., Sidorova v. East Lyme Board of Education, 158 Conn.App. 872, 878 n.7, 122 A.3d 656 (2015). A cause of action, in turn, is defined in terms of a group of facts, even though the concept of a cause of action often is used interchangeably with the concepts of a claim or theory of liability; see, e.g., JP Morgan Chase Bank, N.A. v. Winthrop Properties, LLC, 312 Conn. 662, 684, 94 A.3d 622 (2014):
Subparagraph (a)(4) refers to causes of action with respect to claims of improper joinder.
It is important to recognize the distinction between a claim and a cause of action, terms that oftentimes are confused and even used interchangeably. For the purposes of the regulation of pleadings and procedure in civil actions, a plaintiff's cause of action constitutes " a single group of facts which are claimed to have brought about an unlawful injury to the plaintiff for which one or more of the defendants are liable, without regard to the character of the legal rights of the plaintiff which have been violated." In order for the facts to constitute a single group, " the liability of each defendant must, in some aspect of the proof permissible under the allegations of the complaint, relate to and depend upon a single primary breach of duty." Therefore, when a plaintiff asserts multiple claims, which are legal theories that arise out of and depend upon the group of facts that brought about a single primary breach of duty, there is but one cause of action. Despite there being one cause of action, the plaintiff can maintain separate claims against individual defendants, who need not be jointly liable for each claim. (Footnote and citations, omitted.)
Thus, although Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988), is sometimes cited for the proposition that a motion to strike can only be used to attack the sufficiency of an entire count, the actual holding was that it had been improper to strike an entire count when the relevant count included legally-sufficient allegations as to at least some of the defendants. As was recognized in footnote 9 of that decision, despite the denial of a request to revise (presumably asking to have the complaint separated into counts directed to each of the defendants), the individual defendant " still had the opportunity to move to strike the allegations of the complaint insofar as they purported to state a cause of action against it."
Thus, notwithstanding the complaint/count nomenclature, a motion to strike can be addressed to a portion of a count, so long as it is a portion that articulates a distinct cause of action. Can the counts directed to the defendant Greenwich Hospital based on the conduct of one or more individual defendants be parsed so as to permit a motion to strike to focus on the apparent-agent claims, as distinct from liability premised on the status of the individual defendants as (actual) agents, servants or employees?
The court believes that under the circumstances of this case, it is appropriate to entertain a motion to strike that is limited to the apparent agency aspects of the counts directed to defendant Greenwich Hospital, despite the fact that the allegations are scattered through numerous paragraphs of the relevant counts. The starting point is the modestly technical basis that a cause of action is predicated on an identified group of facts establishing a right against the defendant. The facts necessary to establish vicarious liability based on the status of an individual as an (actual) agent, servant or employee are those that establish the scope of the relationship between principal and agent, including the existence of sufficient control by the principal over the conduct of the individual. Apparent agency is predicated on the absence of facts sufficient to establish a " master-servant" relationship sufficient to impose respondeat superior liability, but the presence of other facts that would justify an alternate basis of liability, i.e., apparent agency.
The court does not perceive this to be analogous to the parsing of a claim of negligence into specifications of negligence, where the theory of liability and supporting facts are essentially the same. Rather, the facts relating to the nature of the relationship between the parties is more fundamental, suggesting an analysis similar to that undertaken in Sharp v. Mitchell, 209 Conn. 59, 70-75, 546 A.2d 846 (1988), where the defendant initially was sued as an employer who had directed employees to enter a dangerous (fatally so) facility and there was a later attempt to transition to a claim of liability based on the employer's role in the construction of the facility, which was deemed to state a new cause of action. While on one level the conduct giving rise to liability is the same (the conduct of the defendants), on another level, the basis for imposition of (vicarious) liability is distinct--indeed, unlike Sharp (and the cases cited therein) where there was nothing inherently inconsistent between positions being advanced, status as an apparent agent and status as an actual agent/servant/employee are mutually exclusive.
Further, addressing the issue at this time can only lead to a sharper focus on the issues that need to be addressed at trial, a, if not the, purpose for pretrial motion practice.
Accordingly, the court will entertain the challenge to the legal sufficiency of the claims of apparent agency, at this time.
Turning, then to the substantive challenge to claims of apparent agency, the parties are in agreement that the recent case of Cefaratti v. Aranow, 154 Conn.App. 1, 105 A.3d 265 (2014), cert. granted, 315 Conn. 919, 107 A.3d 960 (2015), appears to be determinative of the issue. For example, at page 2 of their objection, the plaintiffs state " While plaintiffs recognize that Cefaratti v. Aranow, 154 Conn.App. 1, 105 A.3d 265 (2014), cert. granted, 315 Conn. 919, 107 A.3d 960 (2015), may be binding on the Court, they object to the removal of the words 'apparent agent' in certain paragraphs in Counts One, Two, Four, Five, Seven, Eight, Ten, Eleven and Thirteen." They go on to state that " although the Court may be required to follow Cefaratti, the Appellate Court precedent is on shaky grounds."
Aside from the recognition that the court is bound by the case, the court disagrees with the suggestion that Cefaratti is an outlier. In L and V Contractors, LLC v. Heritage Warranty Insurance Risk Retention Group, Inc., 136 Conn.App. 662, 47 A.3d 887 (2012), the court had reviewed prior decisions, all suggesting if not holding that Connecticut does not recognize the concept of an apparent agent as a basis for tort liability, reaching that same conclusion.
In Tiplady v. Maryles, 158 Conn.App. 680, 120 A.3d 528 (2015), a decision officially released the day after argument of this motion, the Appellate Court declined to address the issue of apparent authority, 158 Conn.App. at 700-01. It declined to review the trial court's ruling that had been consistent with (and which had relied upon) L& V , because it deemed the trial court decision to have been an advisory opinion, given the posture of the case at the time the decision had been issued.
The court is not persuaded by the suggestion that the Appellate Court has failed to give sufficient weight or attention to Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc., 127 Conn. 493, 496-97, 18 A.2d 347 (1941), as cited in Hanson v. Transportation General, Inc., 245 Conn. 613, 617 n.5, 716 A.2d 857 (1998). Hanson did little more than recognize the existence of the Fireman's decision (explaining why it did not have to reach the issue). Fireman's provides illusory support for the plaintiffs' argument, as a careful reading of the decision reflects that the case focused on the conduct of an actual agent (watchman) who had performed services (allegedly, negligently) that were outside the scope of his job (valet parking attendant). In other words, the issue was not whether the individual was an apparent agent of the principal, as he was an actual agent; the issue was whether his activities were within the apparent scope of the agency relationship. See, e.g., Bellsite Development, LLC v. Monroe, 155 Conn.App. 131, 107 A.3d 1028 (2015), discussing the relationship between actual, implied and apparent authority of an agent:
An agent's authority may be actual or apparent . . . Actual authority may be express or implied . . . Implied authority is actual authority circumstantially proved. It is the authority which the principal intended his agent to possess . . . Implied authority is a fact to be proven by deductions or inferences from the manifestations of consent of the principal and from the acts of the principal and [the] agent." (Internal quotation marks and citation, omitted.) 155 Conn.App. at 142-43.
" Apparent authority is th[e] semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses." (Internal quotation marks and citation, omitted.) 155 Conn.App. at 147.
Imposing liability on a principal when an actual agent exceeds the scope of his/her actual authority based on a perception of apparent authority implicates different concerns and values than imposing liability on a claimed-principal for the conduct of someone with whom there is no such antecedent relationship, and especially, no pre-existing assumption of at least some level of responsibility for the conduct of the individual. Or, to put it differently, apparent authority means different things in different contexts--it can mean potential responsibility for the conduct of an actual agent that goes beyond the agent's actual authority ( Fireman's ) or it can mean potential responsibility for someone who is not an actual agent but for whom there is claimed liability of a " principal" nonetheless (this case and Cefaratti ).
The court does not possess a crystal ball; the plaintiffs may be correct as to the vulnerability of Cefaratti, but the court does not agree that Fireman's is a persuasive rationale for such a concern. Fireman's addresses a distinct situation, and a not-uncommon one--the scope of conduct of an agent for which the principal is or may be responsible. This case seeks to impose liability on a party that has no pre-existing responsibility for the conduct of an actor. Accordingly, the court believes that it is bound by the holding in Cefaratti, and the claims of legal responsibility predicated on apparent authority are stricken.
The defendants next contend that the emotional distress claims of the plaintiff mother are legally insufficient:
Additionally, the defendant moves to strike Counts Two, Five, Eight, Eleven, and Fourteen on the basis that plaintiff-mother asserts a claim for her own, individual losses and damages in this medical malpractice, alleged infant birth injury case. It appears that in Count Eight, the plaintiff-mother attempts to assert a claim for her own emotional distress. Connecticut does not permit recovery for bystander emotional distress, except in limited circumstances, which this case does not meet. Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996).
In a supplemental memorandum (#146.00), the defendants contend that the plaintiff does not satisfy the criteria set forth in Squeo v. Norwalk Hospital, 316 Conn. 558, 113 A.3d 932 (2015)--a decision released approximately 3 weeks after the defendants had filed their initial motion and brief. (Although issued prior to plaintiffs' submission, it does not appear to be mentioned anywhere in their objection to the motion to strike.)
The court already has indicated that it will not apply the rules of practice in a mechanical fashion, and will not start doing so now. The court does note, however, that the defendants' arguments are premised on the identified counts/claims being attempts to assert bystander emotional distress, whereas the plaintiffs claim that the defendants are mischaracterizing those counts which are intended to assert more direct claims of infliction of emotional distress. " In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commissioner, 182 Conn. 138, 140, 438 A.2d 27 (1980). To the extent that the defendants are contending that the plaintiffs have not alleged a cause of action which the plaintiff's claim is not the underlying basis for the attacked counts means that the defendants are attacking the " wrong" theory, at least insofar as they are not challenging the claims that the plaintiff's claim are being asserted. By analogy, arguing that a count does not assert a proper claim of defamation does not really matter if the claim is that the count, actually asserts invasion of privacy--in essence, the plaintiff would agree but with an accompanying " so what."
" The interpretation of pleadings is always a question of law for the court . . ." (Internal quotation marks and citation, omitted) Byrne v. Avery Center for Obstetrics and Gynecology, P.C., 314 Conn. 433, 462, 102 A.3d 32 (2014). See, also, Pierce, supra, 158 Conn.App. 311. While it often is helpful if not essential to try to characterize a claim or cause of action using pre-existing labels and categories, pigeon-holing does not always work. In a different context, our Supreme Court has observed:
Experience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better . . . The flexibility and capacity of the common law is its genius for growth and adaptation . . . Indeed, [i]f law is to have current relevance, courts must have and exert the capacity to change a rule of law when reason so requires . . .(Internal quotation marks and citation, omitted), State v. Dejesus, 288 Conn. 418, 437 n.14, 953 A.2d 45 (2008).
The scope of a cause of action, once announced, is subject to refinement. For example, in Hopson v. St. Mary's Hospital, 176 Conn. 485, 487-88, 490-91, 408 A.2d 260 (1979), the Connecticut Supreme Court first recognized (in modern times) the availability of a claim for loss of consortium; in Ladd v. Douglas Trucking Co., 203 Conn. 187, 523 A.2d 1301 (1987), the court was still identifying some of the parameters of such a claim, e.g., distinguishing between allowable ante-mortem claims of loss of consortium and impermissible post-mortem claims.
Prior to Marri v. Stamford Street R. Co., 84 Conn. 9, 78 A. 582 (1911), loss of consortium had been recognized in Connecticut.
The General Assembly, in turn, responded to Ladd by enactment of General Statutes § 52-555a et seq.
In Tomick v. United Parcel Service, Inc., 157 Conn.App. 312, 115 A.3d 1143 (2015), while recognizing that it was perhaps common for a disability discrimination case to require a plaintiff to prove that he/she was qualified to perform the essential functions of the job, the court determined that " under the circumstances of this particular case" that was not relevant to the issues before the court. 157 Conn.App. at 324-33. Rather, a flexible approach was required, and the defendants' reliance on cases in which there had been such a requirement reflected an overly-narrow reading of those precedents. To the extent that the defendant may have interpreted decisions as presumptively requiring such a condition, the decision made it clear that that was not universally so. See, also, Casiano v. Commissioner of Correction, 317 Conn. 52, 67-69, 115 A.3d 1031 (2015), discussing the difficulty in characterizing a decision of the United States Supreme Court as substantive or procedural for purposes of analysis of retroactivity under precedent that relied in part on that distinction.
Particularly when issuing pronouncements about new legal principles, not all of the resulting issues and variations can be anticipated. Indeed, Squeo itself represented both a change in prior law (to the extent prior cases had indicated that bystander emotional distress was unavailable in a medical malpractice context), and a clarification (and apparent narrowing) of the general availability of such claims under Clohessy .
Just as the overruled precedents relating to non-recognition of bystander emotional distress in medical malpractice cases recognized certain unique attributes of medical malpractice, particularly with respect to concerns about creating or recognizing a duty to persons other than the patient, the court believes that for many purposes, family planning and childbirth also have certain unique attributes that distinguish those situations from other areas of medicine, and therefore, necessarily, may require distinctions in the medical malpractice arena. In claims arising from childbirth, a claim by the mother does not implicate concerns about recognizing or creating a duty to unknown parties, nor concerns about recognition of a duty beyond the bounds of a pre-existing patient-physician relationship. Such a claim would not have the potential to somehow interfere with an existing patient-physician relationship. Thus, the typical concerns identified with respect to expanding the duty of physicians to non-patients or more generally expanding the scope of potential plaintiff's beyond direct interactions of parties (such as bystanders), does not and cannot play any significant role in this situation.
Which necessarily leads to the implicit presumption in the defendants' position but which is a distinction between their characterization of the subject claims and the plaintiffs' characterization--is the mother a third party, a non-participant or a participant in the event, when the event is the birth of her child? Before and during delivery--the relevant timeframe--the mother was not an uninvolved third-party bystander, someone who just happened to be there. To the extent that one aspect of the parade of horribles touted, that if bystander claimants were to be permitted in the medical context there is a likelihood that practitioners would start excluding family members from hospital rooms--is it even necessary to finish the sentence, when childbirth is the subject and the mother is the focus of attention? The mother is a biologically-necessary participant in childbirth, and there is only one such individual with that status in any given childbirth event.
In Squeo, the Supreme Court observed that in " Jarmie v. Troncale, 306 Conn. 578, 50 A.3d 802 (2012), [the court had eschewed] any per se rule that [third-party tort] claims are categorically barred because of the absence of a physician-patient relationship . . ." (Internal quotation marks, omitted.) Emphasizing the sui generis relationship(s) present here, there is not an " absence of a physician-patient relationship" between the mother and physician; and if the analysis is to be narrowed so as to focus on a claimed/presumed separate physician-patient relationship between the fetus-infant and the physician during delivery, the situation seemingly would be first in line for the exception contemplated by the above reference to Jarmie .
As already alluded to, none of the negatives identified in Jarmie as potentially militating against recognition of tort liability would appear to be applicable in this situation. There can be no concern about opening the floodgates of liability claims--in childbirth, the mother is a biologically-necessary participant in the process, and is in a unique role in that regard. Therefore, the potential class of new claimants would be limited to one per incident. As something of a corollary, there generally would be no net increase in plaintiffs, since the mother is likely to be a plaintiff already, with respect to the malpractice claim itself. Again, since the context is claimed medical malpractice, there would be no increase in litigation; the issue would be the availability of a distinct/additional theory of liability and possibly distinct claims of damages in an already-likely-to-be-filed proceeding. There would be no concern about creating a duty that might be inconsistent with the patient-physician relationship, as the plaintiff already has such a relationship with the physician, and it is the claimed breach of duties flowing from that existing relationship that underlie the entire action. As a corollary, there would be no concern about divided (or compromised) loyalties or duties.
Foreseeability also is or should not be an issue. A gain, given the existing relationship between patient and physician AND the biological (and emotional) relationship between mother and infant, it clearly is foreseeable that the mother likely would be adversely affected (emotionally) by the consequences of any proven malpractice having a deleterious effect on the baby.
The only " problem" might be a perceived difficulty in distinguishing the claims of emotional distress arising from the malpractice with the mother as the allegedly-improperly-treated patient, and the emotional distress of the mother arising from the effect of the malpractice on the newborn infant. Even then, the theoretical difficulty inherent in trying to draw such a line would be obviated in practice, since the mother would be entitled to a full recovery for all tortiously-caused emotional distress, without necessarily requiring the factfinder to determine which elements of emotional distress are and are not recoverable.
Indeed, the immediately-preceding analysis may well be characterized as overthinking or over-parsing the issue. Part of the standard charge on damages in tort actions provides:
A plaintiff who is injured by the negligence of another is entitled to be compensated for all . . . emotional suffering . . . that (he/she) proves by a fair preponderance of the evidence to have been proximately caused by the defendant's negligence. As far as money can compensate the plaintiff for such injuries and their consequences, you must award a fair, just, and reasonable sum . . .
A plaintiff who is injured by the negligence of another is entitled to be compensated for mental suffering caused by the defendant's negligence for the results which proximately flow from it in the same manner as (he/she) is for physical suffering .
Form Civil Jury Instruction 3.4-1 (emphasis added).
http://www.jud.ct.gov/JI/civil/part3/3.4-1.htm .
The plaintiff will need to prove that the emotional distress was proximately caused by the malpractice that she experienced, but if she can establish that the emotional distress resulting from experiencing the consequences of the malpractice she endured, i.e. realization of the condition of her newborn child--while perhaps somewhat indirect--were sufficiently related to satisfy a proximate cause analysis, then the distinction may not even exist. In other words, for purposes of a legal sufficiency analysis, it is not clear that this claim requires invocation of any rubric other than the longstanding principles governing negligence and medical malpractice, without the need to invoke any special concepts such as bystander emotional distress or a pure emotional distress tort claim (e.g., negligent infliction of emotional distress).
" To prove that an injury is a reasonably foreseeable consequence of negligent conduct, a plaintiff need not prove that the defendant actually foresaw or should have foreseen the extent of the harm suffered or the manner in which it occurred. Instead, the plaintiff must prove that it is a harm of the same general nature as that which a reasonably prudent person in the defendant's position should have anticipated, in view of what the defendant knew or should have known at the time of the negligent conduct." Form Civil Jury Instruction 3.1-7 (http://www.jud.ct.gov/JI/civil/part3/3.1-7.htm).
Conclusion
" Apparent agency" is an ambiguous term. It can refer to the apparent authority of an actual agent, or it can refer to the apparent responsibility of a principal for the conduct of someone who is not an agent. The former sense is the one used in Fireman's ; the latter sense is the one intended here. The court is satisfied that under Cefaratt, there is no tort responsibility of a pseudo-principal for the conduct of someone who is not actually an agent, under an apparent-agent theory of responsibility. For both technical and practical reasons, the severable claim that the defendant hospital was an apparent principal of the medical care providers who were not actual agents, is a matter that should be resolved at the outset. The claim has been stricken.
Also for practical and technical reasons, the motion to strike needs to be denied with respect to the mother's emotional distress claims. The defendants try to frame the issue as an impermissible extension of bystander emotional distress. The court rejects the claim of legal insufficiency on multiple if overlapping grounds: the plaintiff is not claiming bystander emotional distress; she cannot fairly be characterized as a bystander of the claimed medical malpractice for which she was a if not the patient; the emotional distress claim is potentially an extension of established principles of tort liability (possibly subject to a factfinder's determination as to remoteness of causation); and if the scenario represents a true new principle of liability or heretofore unrecognized extension of liability, a Jarmie analysis is likely to result in the appellate courts of this state recognizing the validity of such a claim.
Accordingly, the motion to strike is granted with respect to claims that the defendant hospital is responsible for the conduct of apparent (but not actual) agents; the motion to strike is denied with respect to the claims of maternal emotional distress.