Opinion
No. 08 5005876
September 8, 2010
MEMORANDUM OF DECISION Motion to Strike, No. 208
In this wrongful death action arising out of alleged negligent care received at two nursing homes, the issue presented by this motion is whether the court should strike the counts directed at the commissioner of public health for failure to inspect and remedy the deficiencies in the care provided within the nursing homes.
FACTS
The plaintiffs, the administrator for the estate of Robert M. Wininger and Carol Wininger, commenced this action against multiple defendants alleging the wrongful death of Robert M. Wininger, the plaintiffs' decedent. Before the court is a motion to strike filed by the defendant, J. Robert Glavin, M.D., commissioner of the department of public health (department). At the time this motion was filed on December 7, 2009, the complaint consisted of forty-one counts. The defendant moves to strike the counts directed at him, counts thirty-one and thirty-two, of that complaint. The operative complaint is the revised substituted complaint dated March 16, 2010, which consists of twenty-five counts. Pursuant to Practice Book § 10-61, the defendant's motion to strike will be applied to that complaint, in which count twenty-one alleges wrongful death as against the defendant and count twenty-two is Carol Wininger's loss of consortium claim arising out of that wrongful death count.
The defendants are Cornelio Hong, Joselito Endaya, Raymond Termini, Haven Health Center of Jewett City, LLC, Haven Health Center of Norwich, LLC, Haven Eldercare, LLC, Haven Eldercare II, LLC, Haven Heathcare Trust, LLC, J. Robert Glavin, M.D., commissioner of public health, Eduardo Siccion, and Norwich Internal Medicine. For the purposes of this memorandum, the defendant refers only to Glavin and/or his agents, servants and employees at the department of public health.
The defendant also moves to strike the other two counts directed at him, counts thirty-three and thirty-four of the February 23, 2009 complaint. Count thirty-three alleges that the defendant violated the Patient Bill of Rights, General Statutes § 19a-550, and count thirty-four alleges Carol Wininger's loss of consortium claim arising out of the violations alleged in count thirty-three. The plaintiff voluntarily withdrew these counts against the defendant in its objection to the motion to strike filed December 29, 2009 and filed a substituted complaint on February 26, 2010 deleting those counts. Accordingly, the court does not need to rule on the defendant's motion to strike those claims.
The plaintiffs allege the following facts. The plaintiffs' decedent was admitted to a private nursing home for short-term rehabilitation on January 25, 2005. During the course of his stay, the nursing home discontinued medically necessary therapy, kept the plaintiffs' decedent restrained and failed to notice or treat an avoidable pressure ulcer that he had developed. On March 14, 2007, he was transferred to a different nursing home, which was owned and controlled by the same party and under the supervision of the same medical director. During a visit on June 5, 2007, Carol Wininger insisted that he be transported to the hospital. By that time, he had developed frank rigor mortis in his lower extremities and gangrene. He died on June 7, 2007 at the hospital as a result of these injuries and conditions.
On various dates prior to June 7, 2007, the defendant inspected the nursing homes in which the plaintiffs' decedent resided but failed to discover or remedy the numerous patient care deficiencies that contributed to his death. The plaintiffs allege several acts and omissions, including the defendant's failure to adequately inspect the facilities, to ensure the health, safety and well-being of patients, to timely investigate the financial condition of the facilities and to ensure that the facilities complied with certain enumerated federal regulations.
The defendant filed a memorandum of law in support of its motion to strike on December 7, 2009. The plaintiff filed a memorandum of law in opposition on December 29, 2009. This court heard oral argument at the short calendar on July 19, 2010.
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). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). When ruling on a motion in strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Id.
A
The defendant moves to strike the wrongful death count on the ground that it is barred by the public duty doctrine. Because the wrongful death claim is barred, the defendant moves to strike the loss of consortium count on the ground that it is derivative of the wrongful death claim. The plaintiffs respond that the public duty doctrine is a governmental defense and General Statutes § 19a-24 waives governmental defenses as well as sovereign immunity because it specifically authorizes a suit against the commissioner in lieu of the procedure in General Statutes § 4-160 et seq. Accordingly, the plaintiffs argue that the court should deny the motion to strike the wrongful death count. The plaintiffs agree that the loss of consortium count is derivative of the wrongful death count and maintain that because the wrongful death count survives, so should the loss of consortium count.
"It is well established law that the state is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases." Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1983). "Sovereign immunity may be waived only through a statute . . . Any statutory waiver of immunity must be narrowly construed . . . The state's sovereign right not to be sued may be waived by the legislature, provided clear intention to that effect is disclosed by the use of express terms or by force of a necessary implication." (Citations omitted; internal quotation marks omitted.) Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987). General Statutes § 19a-24(a) provides in relevant part: "Any claim for damages in excess of seven thousand five hundred dollars on account of any official act or omission of the Commissioner of Public Health [or another named commissioner] shall be brought as a civil action against the commissioners in their official capacities and said commissioners shall be represented therein by the Attorney General . . ." General Statutes § 19a-24(a). Our Supreme Court has concluded that by enacting § 19a-24, the legislature has waived the sovereign immunity of the state to all civil actions against the commissioner of public health or any member of his staff. See Duguay v. Hopkins, supra, 232.
"At the time Duguay was decided, § 19a-24 provided in relevant part: `[a]ny civil action for damages on account of any official act or omission of the commissioner of health services or the commissioner of mental retardation . . . shall be brought against the commissioners in their official capacities.' General Statute § 19a-24(a) (Rev. to 1981). The subsequent legislative amendment of this language to its current terms appears only technical in nature." Hechtman v. Dept. of Public Health, Superior Court, judicial district of Hartford, Docket No. CV 09 4043516 (December 3, 2009, Prescott, J.) ( 49 Conn. L. Rptr. 261, 270 n. 2).
Our Supreme Court first recognized the public duty doctrine in Leger v. Kelley, 142 Conn. 585, 116 A.2d 429 (1955), stating: "[I]f the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public and not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it or to perform it properly, is an individual wrong, and may support an individual action for damages." (Internal quotation marks omitted.) Id., 589-90. In that case, the commissioner of motor vehicles accepted the registration of an automobile that was not equipped with safety glass in the windshield. Id., 586-87. The plaintiff was injured by the shattered windshield when he was a passenger in the automobile during an accident. Id. The court concluded that the commissioner had a ministerial duty under the applicable statute, not a discretionary one. Id., 589. The court reasoned that "no one individual is affected by the registration of any motor vehicle in a manner different from other members of the general public who may happen to ride in the automobile" and concluded that the commissioner's duty was a "public duty and not one which he owed to any individual . . ." Id., 591.
"The public duty doctrine is governmental in nature. Only governmental officers or entities, not private individuals or companies, have asserted the public duty doctrine as a defense in Connecticut. See, e.g., Gordon v. Bridgeport Housing Authority, [ 208 Conn. 161, 169, 544 A.2d 1185 (1988)]; Roman v. Stamford, [ 16 Conn.App. 213, 547 A.2d 97 (1988), aff'd, 211 Conn. 396, 559 A.2d 710 (1989)] . Furthermore, the public duty doctrine only applies when a public duty, imposed by official authority, is in issue. See Leger v. Kelley, supra, 142 Conn. 589-90." Torres v. Dept. of Correction, 50 Conn.Sup. 72, 84-85, 912 A.2d 1132 (2006).
The issue presented by the parties is whether § 19a-24 waives governmental defenses, such as the public duty doctrine, as well as sovereign immunity. The plaintiff maintains that § 19a-24 authorizes a suit against the commissioner in lieu of the procedure in § 4-160, and like the latter, the former waives governmental defenses. Section 4-160 waives the state's sovereign immunity for certain claims, but it requires that such claims be first authorized by the claims commissioner. General Statutes § 4-160(a), (b). In contrast, in order to bring a claim against the commissioner of public health, § 19a-24 does not require review by the claims commissioner for any claim for damages in excess of $7,500. Rather, such claim shall be brought by civil action against the commissioner in his official capacity. General Statutes § 19a-24(a). There are other substantial differences between § 19a-24 and § 4-160, but only one difference is here relevant. Section 4-160(c) provides in relevant part: "The state waives its immunity from liability and from suit in each such action and waives all defenses which might arise from the eleemosynary or governmental nature of the activity complained of. The rights and liability of the state in each such action shall be coextensive with and shall equal the rights and liability of private persons in like circumstances." (Emphasis added.) General Statutes § 4-160(c). See Torres v. Dept. of Correction, supra, 50 Conn.Sup. 85 (concluding § 4-160(c) waives governmental defenses including reliance on public duty doctrine). In contrast, § 19a-24 contains no such express waiver of governmental defenses or any language like that found in § 4-160(c). The plaintiff has provided no authority for the proposition that § 19a-24 waives such defenses, nor has research disclosed any such authority. Accordingly, because the plain language of the statute belies such an interpretation, and because any statutory waiver of sovereign immunity must be narrowly construed, this court must conclude that § 19a-24 does not waive governmental defenses such as the public duty doctrine. This conclusion is not dispositive of the motion presently before the court, however.
"Any claim for damages in excess of seven thousand five hundred dollars on account of any official act or omission of the Commissioner of Public Health . . . shall be brought as a civil action against the commissioners in their official capacities and said commissioners shall be represented therein by the Attorney General . . ." General Statutes § 19a-24(a).
General Statutes § 4-160 provides in relevant part: "(a) When the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable.
"(b) In any claim alleging malpractice against the state, a state hospital or a sanitorium or against a physician, surgeon, dentist, podiatrist, chiropractor or other licensed health care provider employed by the state, the attorney or party filing the claim may submit a certificate of good faith to the Claims Commissioner in accordance with section 52-190a. If such a certificate is submitted, the Claims Commissioner shall authorize suit against the state on such claim . . ." General Statutes § 4-160(a), (b).
B
The next issue for the court is whether the defendant's reliance on the public duty doctrine can be raised properly by way of a motion to strike. As the court in Torres v. Dept. of Correction, supra, 50 Conn.Sup. 78 n. 9 noted: "[Our Supreme Court has] held that governmental immunity ordinarily must be pleaded as a special defense, but it is unclear whether the public duty doctrine, as a separate defense, also must be pleaded."
In Torres v. Dept. of Correction, supra, 50 Conn.Sup. 78 n. 9, the court did not reach the issue of whether the public duty doctrine must be specially pleaded because the plaintiff raised the issue at oral argument but failed to brief it. In that case, the defendant did not file a motion to strike. Rather the parties filed crossmotions for summary judgment, which the court denied.
A more detailed discussion of the public duty doctrine itself is here necessary. "In the application of [the public duty doctrine], the problem is always to determine whether the [action] involved does create a duty to the individual . . . [I]t appears that the test is this: If the duty imposed upon the public official . . . is of such a nature that the performance of it will affect an individual in a manner different in kind from the way it affects the public at large, the [action] is one which imposes upon the official a duty to the individual, and if the official is negligent in the performance of that duty he is liable to the individual." (Internal quotation marks omitted.) Roman v. Stamford, supra, 16 Conn.App. 220.
In our state's jurisprudence, the question of whether the plaintiff alleged a public versus a private duty usually arises in the context of municipal liability and is not normally raised by a state entity. See Torres v. Dept. of Correction, CT Page 17830 supra, 50 Conn.Sup. 78-83. "The public duty doctrine recognizes that a fundamental element of any negligence action is a duty owed by the defendant to the plaintiff. Thus for one to recover from a municipal corporation in tort it must be shown that the duty breached was owed to the injured person as an individual and was not merely the breach of an obligation owed to the public in general (i.e., a duty to all is a duty to no one) . . ." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 336 n. 13, 907 A.2d 1188 (2006). "[U]nlike [governmental] immunity, which protects a municipality from liability for breach of an otherwise enforceable duty to the plaintiff, the public duty rule asks whether there was any enforceable duty to the plaintiff in the first place." (Emphasis in original; internal quotation marks omitted.) Id., 335 (citing 18 E. McQuillin, Municipal Corporations [3d Ed. Rev. 2003] § 53.04.25, p. 198.) "A defendant who pleads immunity conditionally admits the plaintiff's case, but asserts immunity as a bar to liability. In contrast, the public duty rule is a defense that denies an element of the plaintiff's cause of action — the existence of a duty of care to the individual plaintiff." (Internal quotation marks omitted.) Torres v. Dept. of Correction, supra, 50 Conn.Sup. 81.
Under the framework articulated in Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982), when examining whether governmental immunity bars a claim for negligence, "the court looks to see whether there is a public or private duty alleged by the plaintiff. If a public duty exists, an official can be liable only if the act complained of is a ministerial act or one of the narrow exceptions to discretionary acts applies." Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 171. In Gordon, our Supreme Court affirmed the trial court's ruling granting the city's motion to strike on immunity grounds. In that case, the plaintiffs' decedent had been lured into a housing project and badly beaten, and plaintiff brought suit against the local police department, among others, arguing that the police had failed to deploy sufficient patrol units in the area, and that such a failure was breach of a duty imposed by law, not a discretionary decision. In examining that threshold issue of whether the plaintiff alleged a public duty, the court held that whether the police owed a duty to the plaintiffs' decedent was a question of law for the court and therefore the trial court did not err in deciding the question on a motion to strike. Id., 171-72. In Violano v. Fernandez, supra 280 Conn. 310, which was also an appeal from the grant of a motion to strike, the Supreme Court upheld the Appellate Court's conclusion that it need not analyze whether the plaintiffs alleged a public or private duty because the court concluded that governmental immunity precludes liability regardless of whether the duty is public or private as long as the act complained of is discretionary in nature and none of the three recognized exceptions to discretionary act immunity applied. Id., 333-35.
These three exceptions to discretionary act immunity, not relevant to the present case, are: "First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . Third, liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm." (Citations omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 615-16, 903 A.2d 191 (2006).
In Ward v. Greene, Superior Court, judicial district of New London at Norwich, Docket Number X04 CV 99 0120118 (March 8, 2001, Koletsky, J.), the court granted a motion to strike when it was clear that the plaintiff alleged only violations of public duties. In Ward, a two-year-old child was killed by her daycare provider. Her mother commenced an action against the department of public health, among others, because she relied on information from the department hotline when entrusting her child to the care of that provider. Id. The department also licensed the provider and renewed that license every year for five years. Id. The plaintiff alleged that other state agencies knew that the provider had previously abused children, but that the department failed to "cooperate with [the department of children and families (DCF)] and other state agencies [as required by statute] in investigating and reporting incidents involving [the provider], thereby causing injury to [the child] and her mother." Id.
The court in Ward granted the department's motion to strike the counts against it for a number of reasons. Relevant here is the court's conclusion that "any duties imposed by [the statute at issue] are public duties, i.e., [the department's] duty was public in nature and it owed no specific duty to [the mother] to cooperate with DCF and other state agencies in the investigation of child abuse involving [the provider]." Id. The court reached the same conclusion regarding the mother's allegations that the department violated a different statute by "failing to make proper inquiry and investigation into allegations of abuse and neglect against [the provider] and by failing to make proper inquiry and investigation into [the provider's] day care license application and subsequent renewal applications of that license." Id.
Because the relevant inquiry is whether the plaintiffs allege only duties that the defendant owes the public at large, and not a duty to an individual plaintiff, this court is persuaded that this issue can be decided on a motion to strike. In the present case, the defendant maintains that its licensure and oversight of a nursing home affects the general public who might end up in such a facility. No one individual is affected by that oversight in a manner different than any other member of the public who might become a nursing home resident. The plaintiffs do not counter this argument.
A review of the plaintiffs' allegations demonstrates that the defendant's representatives inspected the nursing homes in which the plaintiffs' decedent resided, but failed to discover or remedy the numerous patient care deficiencies that contributed to his death. The complaint details a number of acts and omissions, all of which appear to arise out of the defendant's duties to inspect nursing homes, to issue citations for violations of certain regulations and to take "corrective action" against such facilities when warranted. For example, the plaintiff alleges that the defendant failed to inspect the facilities adequately, ensure health, safety and well-being of patients and investigate timely the financial condition of the facilities. The defendant also failed to ensure that the patients at these facilities received the "appropriate, quality medical care necessary to treat [them]." The defendant cited the facilities "for numerous violations of basic standards, yet the [defendant] failed to take or require corrective action and ignored complaints regarding dangerously deficient patient care." The defendant failed to detect violations of enumerated federal regulations, including the existence of insufficient nursing staff and related services. None of these duties appear to differ from the duty that the defendant owes to any member of the public who resides in such a nursing care facility.
The plaintiffs allege several acts and omissions particular to the plaintiffs' decedent, including the defendant's failure to "detect that the plaintiffs' decedent was inappropriately left alone without care or monitoring for unduly long periods of time" and that he was "improperly restrained without care or monitoring." The defendant can be liable for such failures only if the defendant had a cognizable duty to the plaintiffs' decedent himself. The defendant's duty to inspect and license nursing care facilities is not of such a nature that his performance of this duty affected the plaintiffs' decedent in a manner different in kind from the way it affects the public at large. Accordingly, the public duty doctrine bars the plaintiffs' claim against the defendant and the motion to strike the count alleging wrongful death is granted.
One might ask under what circumstances a plaintiff could allege a cause of action that does not implicate only a public duty against either the commissioner of public health or the commissioner of mental retardation in a case brought pursuant to General Statutes § 19a-24. For examples, see, e.g., Duguay v. Hopkins, supra, 191 Conn. 223-24 (plaintiff with mental retardation suffered personal injuries while ward of commissioner of mental retardation and resident of facility under commissioner's control and supervision); Hechtman v. Dept. of Public Health, supra, 49 Conn. L. Rptr. 261, 262 n. 2 (former licensed physician brought suit against commissioner of public health for several torts and breach of contract when commissioner improperly characterized settlement agreement between parties as disciplinary action on state website).
"As a derivative cause of action, loss of consortium is dependent on the legal existence of the predicate action . . . that is to say, if an adverse judgment bars the injured spouse's cause of action, any claim for loss of consortium necessarily fails as well." Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, 62 n. 5, 882 A.2d 1254, cert. denied, 276 Conn. 926, 888 A.2d 93 (2005). Because the loss of consortium claim brought by the plaintiffs' decedent's spouse is derivative of the wrongful death claim, the court must strike it as well.
CONCLUSION
The motion to strike counts twenty-one and twenty-two from the complaint dated March 16, 2010 is granted.