Opinion
No. X01 CV-03-4000339-S
February 4, 2005
MEMORANDUM OF DECISION
Factual Background
This is a medical malpractice case brought by a cancer patient who treated with the defendant doctor at the defendant oncology center for the purpose of obtaining radiation therapy. The governing complaint is the Second Amended Complaint dated July 21, 2004. The First Count is directed to Jeffrey Bitterman, M.D. ("Bitterman") and alleges medical malpractice. The Second Count is also directed to Bitterman and asserts a cause of action for lack of informed consent. The Third Count is directed to Bristol Radiation Oncology Center ("Center") and alleges a violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), C.G.S. § 42-110a et seq.
Bitterman has moved to strike the Second Count as barred by the applicable statute of limitations, C.G.S. § 52-584, and the Third Count on the ground a physician is liable under CUTPA only with regard to the entrepreneurial aspects of that physician's practice. The plaintiff has objected, both parties have submitted memoranda of law, and both have waived oral argument.
Applicable Law
A motion to strike tests the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted. Vacco v. Microsoft Corp., 260 Conn. 59, 65 (2002); Practice Book Section 10-39. The trial court's role is to examine the complaint construed in favor of the pleader to determine whether a legally sufficient cause of action has been pled. Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 772 (2002). Specifically, the court must "assume the truth of both the specific factual allegations and any facts fairly provable thereunder" and "read the allegations broadly, rather than narrowly." Craig v. Driscoll, 262 Conn. 312, 321 (2003). The requirement of favorable construction does not extend, however, to legal opinions or conclusions stated in the complaint but only to factual allegations and the facts "necessarily implied and fairly provable under the allegations." Forbes v. Ballaro, 31 Conn.App. 235, 239 (1993). The motion is to be tested by the allegations of the pleading, which allegations cannot be enlarged by the assumption of any facts not therein alleged. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 549-50 (1980). The motion is properly granted if the complaint alleges mere conclusions of law unsupported by the facts alleged. Fidelity Bank v. Krenisky, 72 Conn.App. 700, 720 (2002); Donar v. King Associates, Inc., 67 Conn.App. 346, 349 (2001).
Second Count (Failure to Obtain Informed Consent)
Ordinarily the statute of limitations must be pleaded as a special defense and not raised by a motion to strike. Forbes v. Ballaro, 31 Conn.App. 235, 239 (1993); see also P.B. § 10-50. The motion may however be used to raise that defense in two limited situations: a) when the parties agree the complaint sets forth all the facts pertinent to a determination whether the action is time barred; and b) when the statute gives a right of action not existing at common law and fixes the time within which the right must be enforced, in which case the time fixed is a limitation of the liability itself. Forbes, 31 Conn.App. at 239-40. While the defendant states in his Reply memorandum that he relies only upon the first exception (p. 2), he argues both exceptions in his first filed memorandum and so the court addresses both.
With regard to the just referenced first exception, the defendant argues that because the plaintiff, in her original complaint dated July 25, 2003, alleged and the defendant admitted the defendant prescribed and the plaintiff underwent radiation treatment from August 6, 2001, until September 21, 2001, the parties have therefore agreed when treatment began and ended — thus, she argues, the first exception is satisfied. That argument was rejected by the Forbes Court. The trial court had granted the motion to strike "because all the facts were pleaded" and "all facts necessary to determine if the cause of action was barred by the statute of limitations were also pleaded." ( Id., at 240.) Our Appellate Court concluded the trial court had misconstrued the Supreme Court's holding in CT Page 3238 Vilcinskas v. Sears, Roebuck Co., 144 Conn. 170 (1956). An agreement — as here — on treatment dates is not an agreement that "all facts necessary to the determination of whether the statute of limitations defense applied were set forth in the complaint." Id. See Vilcinskas, 144 Conn., at 171-72. While the plaintiffs in Forbes contended additional facts were necessary to prove the claim was not time barred (a claim the plaintiff has not here asserted), this court, absent an agreement between the parties, cannot foreclose the plaintiff's opportunity to develop a similar argument since she is not required to plead facts in anticipation of the defense of the statute of limitations. See Todd v. Bradley, 99 Conn. 307, 311 (1923).
The return date was August 26, 2003.
The parties agree C.G.S. § 52-584 fixes the statute of limitations applicable to medical malpractice cases. It reads:
No action to recover damages for injury to the person, or to real personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.
Many of this state's courts have concluded the statute starts to run at the time of the "act or omission" by the defendant. See e.g., Vilcinskas, 144 Conn., at 175. It has also been held the word "injury" as used in § 52-584 is synonymous with "actionable harm." Tarnowsky v. Socci, 271 Conn. 284, 288 (2004). Analyzing the legislature's purpose in distinguishing between "injury" — or "actionable harm" (to which the two-year statute is applicable) — and "the act or omission complained of" (to which the time limit fixed is three years), the Court in Tarnowsky concluded, "[T]here is no principled reason to distinguish between, on the one hand, the discovery of a breach of duty or the discovery of a causal connection between the breach of duty and the injury and, on the other hand, the discovery of the identity of the tortfeasor, for purposes of the actionable harm doctrine." Id., at 291. Our Supreme Court has also concluded actionable harm may occur "when the plaintiff has knowledge of facts that would put a reasonable person on notice of the nature and extent of an injury and that the injury was caused by the negligent conduct of another." (Citation omitted.) Lagassey v. State, 268 Conn. 723, 749 (2004). The determination when a plaintiff in the exercise of reasonable care should have discovered actionable harm is ordinarily reserved for the trier of fact. Id. It is not a function of the court in adjudicating a motion to strike. It does, however, appear to this court that an analysis of the actionable harm — or injury — element of a negligence cause of action is required before a conclusion the statute has expired can be reached and no such analysis is here provided. Alternatively, in the absence of an agreement between the parties that all relevant facts applicable to such determination have been stated in the complaint (not present here), the first exception enunciated in Forbes, supra, is not satisfied.
While conceding C.G.S. § 52-584 is here applicable, the defendant then references C.G.S. § 52-190a as mandating "certain prerequisites for medical malpractice claims that go well beyond the right of action at common law." (Memorandum, at p. 5.) He then transitions from this assertion to the conclusion the action is barred by § 52-584. The court can only reason that § 52-190a is cited with reference to the second exception of Forbes but that argument is also misplaced because § 52-190a does not "create" a cause of action for medical malpractice, which existed at common law, and, additionally, there is no expression in any of the plaintiff's three complaints that she "relied" on this statute. Nor does the defendant articulate how § 52-190a, which contains no internal limitations period, "fixes the time upon which the cause of action must be asserted." Thus, the second exception is not applicable.
The defendant's third argument is that the limitations of § 52-584 has expired because the failure to obtain informed consent was not pleaded as a cause of action until June 14, 2004, when the First Amended Complaint was filed and that cause of action does not "relate back" to the original complaint dated July 25, 2003. (Presumably that is as a result of treatment having ended on September 21, 2001, and the First Amended Complaint having a date of June 14, 2004, — thus, defendant argues, the two-year statute had expired nine months earlier.) The defendant having failed to establish he fell within either of the two exceptions to the general rule the statute of limitations is appropriately raised as a special defense and not a motion to strike, the court does not consider this argument.
The defendant's conclusion is not mandated. Paragraphs 6(o) and 6(q) of the original complaint allege the physician failed to advise the plaintiff of the risk inherent in using a 4MV linear accelerator in treating her and in failing to advise the availability of alternative treatments at nearby facilities. The same claims are made in the second filed complaint which, for the first time, asserts an independent cause of action for failure to obtain informed consent.
The motion to strike the second count is denied.
Third Count (CUTPA)
This count is directed to Bristol Radiation Oncology Center, P.C. only. Nowhere therein is it alleged that defendant Bitterman was a principal of that Center or that he had any financial interest which would motivate him to refer patients for radiation therapy there — as opposed to another area facility. Nowhere in that — or in any other — count is it alleged he was an agent, principal, servant and/or employee of the Center. The Third Count alleges: a) the Center represented it was qualified to render proper medical services and undertook to provide such services to the plaintiff (Paragraph 2); b) the treatment provided by the Center caused the plaintiff injuries and losses (Paragraph 5); c) the 4MV linear accelerator used by the Center in plaintiff's radiation therapy was "outdated, outmoded and insufficient for purposes of safe and effective treatment of the plaintiff's condition" (Paragraph 6); d) the plaintiff's injuries and losses were caused by the failure of the Center, "its agents, representatives, servants and/or employees to refer patients to or prescribe that their treatment be performed at other facilities . . ." (emphasis added) using alternative procedures and/or equipment that would have resulted in safer, more effective treatment of this plaintiff (Paragraph 7); and e) these actions on the part of the Center constituted a violation of C.G.S. § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA) in that those actions and inactions "discharged in the entrepreneurial, commercial, or business aspect of the practice of medicine, were deceptive, unfair, unlawful, immoral, oppressive and unscrupulous, posed a danger or harm to those members of the community requiring radiation therapy, and caused substantial injury to the plaintiff." Paragraph 8.
The only "link" asserted between Bitterman and the Center is in Paragraph 6 of the Second Count wherein reference is made to the "defendant's facility" in sub-paragraphs (a), (b) and (g) — and those allegations are not incorporated in the Third Count. That the same counsel appears for both defendants does not cure this pleading defect.
The defendant has moved to strike this count as legally insufficient because "a CUTPA claim against a physician" (emphasis added) cannot be based on conduct that arises out of the treatment and care of a patient and falls outside the realm of the entrepreneurial, commercial, or business aspect of the practice of medicine. Thus, the defendant ignores the Third Count is not directed to Bitterman and that the plaintiff has not alleged an agency relationship. While the plaintiff does not disagree with the defendant's statement of the law, she has objected on other grounds. Specifically, she asserts that, in Paragraph 7 of this count, she "alleged that the failure of the defendants to refer her to other facilities, facilities in which the defendant Bitterman did not have a financial interest . . . violates CUTPA." (Emphasis added.) Paragraph 7 of the Third Count neither alleges Bitterman failed to refer her to another facility nor does it allege he had a financial interest in the Center. Only the Center is named in this count. She has objected to this motion because, in this count, she "alleges the defendant referred her to his own facility," that Bitterman "was directing sick patients to his own facility" (emphasis added) that the Center was "a business in which he had an interest" (emphasis added) and that such allegations implicate the entrepreneurial or business aspect of the provision of services." Opp. memorandum, p. 12. Nowhere in the complaint do these purported "allegations" appear and the plaintiffs claims to the contrary are unsupported and unsupportable in the language she chose to use; they also belie an attention to the pleading on which she must necessarily rely. In adjudicating a motion to strike, the court may not enlarge the allegations of the complaint by assuming facts not therein alleged. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 549-50 (1980). Thus, the complaint may not be construed so broadly as to assume a fact which is not stated. However, assuming for the purpose of this motion only that Bitterman's ownership of and financial interest in the Center is a "fact fairly provable thereunder," the court addresses the substance of both the motion and the objection. See Craig v. Driscoll, 262 Conn. 312, 321 (2003).
The practice of medicine — whether by Bitterman or the Center — gives rise to a CUTPA claim only when the actions at issue are chiefly concerned with the entrepreneurial aspects of practice, such as the solicitation of business and billing practices . . . as opposed to claims directed at the competence of and strategy employed . . ." (Citation omitted; emphasis in original; internal quotation marks omitted.) Janusauskas v. Fichman, 264 Conn. 796-808-09 (2003); see also Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 35-37 (1997). Use of a specific treatment or specific equipment, while it may constitute medical malpractice, does not involve the commercial aspect of a medical practice. The plaintiff's claims are chiefly that, in employing a 4MV linear accelerator and in not referring the plaintiff to another facility that employed equipment allegedly safer and more effective, the defendants caused the plaintiff's injuries. These allegations go to the defendants' competency and to their exercise of medical skills as opposed to allegations concerning the way in which each defendant operated his (or its) medical practice. In Suffield Development Associates v. National Loan Investors, 260 Conn. 766 (2002), our Supreme Court, considering an attorneys liability under CUTPA, concluded that decisions of lawyers which involved personal profit as a factor "are not considered part of the entrepreneurial aspect of practice law" ( id., at 783) since many decisions in the practice of law involve a financial element. In Janusauskas, supra, our Supreme Court adopted the same reasoning with regard to physicians and upheld the Appellate Court's granting of the motion to strike. Because the chief allegations here focus on the treatment of cancer patients by radiation therapy, the conduct producing the acts or omissions complained of involved medical — as opposed to business — judgments and the Third Count is hereby stricken.
The motion to strike the Second Count is denied; it is granted as to the Third Count.
Sheedy, J.