Opinion
No. X05 CV 08 5009829S
February 22, 2011
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE (#196)
Introduction
This case involves a plastic surgeon who died of a drug overdose, the hospital where he formerly worked, and a group of patients the doctor had operated upon at that hospital. In the wake of this doctor's death and the public disclosure of his long-standing drug addiction, eight women who underwent breast surgeries performed at the hospital by this doctor have joined together as plaintiffs. They have brought this lawsuit against the hospital alleging unfair trade practices. Now before the court is the hospital's motion to strike the plaintiffs' complaint in its entirety.
The defendant is Greenwich Hospital (defendant or Hospital), a 174-bed hospital facility located at 5 Perryridge Road, Greenwich, Connecticut. The defendant maintains a satellite facility across the street at 77 Lafayette Place, a location referred to in the pleadings as the Greenwich Hospital Breast Center (Breast Center). The late doctor was a plastic surgeon named Ian Rubins, M.D. who had worked at the Breast Center. The plaintiffs are Carolyn Bateman along with seven other women who were his patients (plaintiffs), all of whom underwent breast surgery by Dr. Rubins at the Hospital at various times over a six-year period between April 1, 2001 and May 22, 2007. Dr. Ian Rubins' story, his rise and subsequent fall, is both a tragedy and a cautionary tale about the dangers of substance abuse. It is one that is sadly all too familiar to most Americans in 2011, as many people of far less fortunate circumstances and backgrounds have suffered similar fates. That Dr. Rubins was a practitioner of the healing arts, and therefore undoubtedly more familiar with the etiology and adverse consequences of addiction only deepens the mystery and compounds the tragedy. The late doctor may have been absent from the courtroom during the oral argument on the Hospital's motion to strike, but the deceased was frequently invoked by the lawyers for both the patients and the Hospital.
These plaintiffs are also seeking class action status for their claims against the Hospital. However, the court had not yet been asked to rule upon the issue of class certification at the time of the ruling on the motion to strike. In light of the decision granting the motion, it is moot at this time.
The complaint accuses the Hospital in each of two counts of violating the provisions of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA). The Hospital argues that the motion to strike should be granted because the plaintiffs have failed to state a cognizable claim under CUTPA. The defendant argues that the actions alleged to have been taken by the Hospital as to Dr. Rubins and the Breast Center were consistent with public policy, and therefore, it could not have violated CUTPA as a matter of law. The court previously granted the motion to strike on the grounds that the complaint as drafted fails to meet the legal standards applicable to CUTPA claims against hospitals. This memorandum of decision is a further articulation of that finding. After a discussion of the legal standards applicable to a motion to strike, the court will set forth the parameters of a viable CUTPA claim in general, as well as the requirements for a hospital CUTPA claim in particular. The court will then discuss the complaint itself and the contentions of the parties.
Motion to Strike — Legal Standard
"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). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "A motion to strike is the proper procedural vehicle . . . to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Ortiz v. Waterbury Hospital, judicial district of Waterbury, Docket No. CV 99 154112 (March 9, 2000, Pellegrino, J.) ( 26 Conn. L. Rptr. 547).
"A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. Further, our Supreme Court "will not uphold the granting of [a] motion to strike on a ground not alleged in the motion." Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).
"In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580. "Where the legal grounds for such a motion [to strike] are dependent upon underlying facts not alleged in the . . . pleadings, the [party that filed the motion] must await the evidence which may be adduced at trial, and the motion should be denied." (Citations omitted; internal quotation marks omitted.). Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). "It is of no moment that the defendants might prove facts which operate to bar the plaintiff's claim, the sole inquiry at this stage of the pleadings is whether the plaintiff's allegations, if proved, would state a basis for standing . . . [An] argument [that] would require the court to consider facts outside the face of the pleadings . . . would be improper on a motion to strike . . ." (Citations omitted.) Miller v. Insilco Corp., Superior Court, judicial district of New Haven, Docket No. 27 92 67 (May 22, 1990, Schimelman, J.) ( 1 Conn. L. Rptr. 651).
Unfair Trade Practices — CUTPA
The group of consumer protection statutes known by the acronym CUTPA, and found in General Statutes Title 42, Business, Selling, Trading and Collection Practices, represents Connecticut's codification of the prohibition of unfair trade practices. "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 . . . 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." (Citations omitted; emphasis in original; internal quotation marks omitted.) Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 213-14, 932 A.2d 401 (2007).
"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 businesspersons] . . . 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 a 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). "A claim under CUTPA must be pleaded with particularity to allow evaluation of the legal theory upon which the claim is based." (Internal quotation marks omitted.) S.M.S. Textile Mills, Inc. v. Brown, Jacobson, Tillinghast, Lahan King, P.C., 32 Conn.App. 786, 797, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993).
The Supreme Court has noted that, "CUTPA reflects a public policy that favors remedying wrongs that may not be actionable under other bodies of law." Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 159, 645 A.2d 505 (1994). "CUTPA, by its own terms, applies to a broad spectrum of commercial activity. The operative provision of the act, [General Statutes] § 42-110b(a), states merely 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. Trade or commerce, in turn, is broadly defined as the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state . . . The entire act is remedial in character; General Statutes § 42-110b(d) . . . and must be liberally construed in favor of those whom the legislature intended to benefit . . ." (Citations omitted; internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 212-13, 680 A.2d 1243 (1996).
The defendant Hospital in this case is a health care provider, a status which raises additional considerations in the context of evaluating the legal sufficiency of a CUTPA claim against it. It is no ordinary business, and the goods and services it offers the public are unique. Therefore, for public policy reasons a hospital is viewed differently under CUTPA than other types of businesses. As is made clear by case law, there are definite limits to any potential liability of a hospital under CUTPA, despite the remedial character of the statute itself. The Connecticut Supreme Court has noted that, "it would be improper to view the practice of medicine as interchangeable with other commercial endeavors and apply to it concepts that originated in other areas." (Citation omitted.) Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 37 (1997).
In the case of Harris v. Bradley Memorial Hospital Health Center, Inc., 296 Conn. 315, 994 A.2d 153 (2010), a surgeon whose medical staff privileges had been suspended by his hospital brought a lawsuit which included CUTPA allegations. The trial court directed a verdict for the defendant hospital on the CUTPA count. The Supreme Court agreed that the hospital's suspension of the plaintiff doctor was a medical decision not subject to CUTPA. It ruled that the trial court acted properly in finding that such action was based on the doctor's medical competence, writing, "In Haynes v. Yale-New Haven Hospital, [ supra, 243 Conn. 38] we stated that `the 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. The challenged decision in the present case was one made by the defendant and was one directly related to medical competence . . .' Id. The purpose of the peer review process is to ensure that only physicians who are professionally competent enjoy privileges at hospitals. See Owens v. New Britain General Hospital, [ 229 Conn. 592, 606 (1994)] (characterizing hospital decisions regarding privileges as `determinations of the professional competence and capability of a physician to practice medicine in a hospital setting'). Such decisions do not fall within the ambit of CUTPA." (Emphasis added; Internal quotations omitted.) Harris v. Bradley Memorial Hospital Health Center, Inc., supra, 296 Conn. 351.
Discussion
The operative complaint is entitled First Amended Class Action Complaint dated March 3, 2010. It is in two counts. The defendant moves to strike both counts one and two on the grounds that the plaintiffs have failed to state a cognizable claim under CUTPA. Specifically, the defendant contends that the alleged actions by the Hospital were consistent with public policy, and involved the protected delivery of medical care, rather than the entrepreneurial aspects of such care under CUTPA. The first count alleges unfair acts and practices, while the second count alleges deceptive acts and practices by the Hospital. Both counts rely on the same set of operative facts which are set forth in the first part of the complaint.
The plaintiffs allege that Dr. Ian Rubins, M.D., a plastic surgeon granted privileges by Hospital, performed surgeries at Hospital and the Hospital Breast Center between 2001 and 2007. It was during that time frame that Dr. Rubins operated upon each of the plaintiffs, who were then patients of the. Hospital. In January of 2008, Dr. Rubins died in Stamford of a heroin overdose in the apartment of a drug dealer. According to a Hospital spokesman, it had known of Dr. Rubins' drug abuse since 1997, approximately eleven years earlier. Although aware of this plastic surgeon's history of drug abuse, the Hospital continued to promote its Breast Center and Dr. Rubins to patients like the plaintiffs who were in need of treatment for breast cancer and/or reconstructive or cosmetic breast plastic surgery. The plaintiffs first learned of Dr. Rubins' addiction from news reports published shortly after his death.
The plaintiffs claim that the Hospital's promotion of its Breast Center and Dr. Rubins was entrepreneurial and business activity designed to increase the Hospital's business and profits. Specifically, the Hospital promoted the Breast Center and Dr. Rubins in the following ways: (i) it published a regular newsletter promoting the Breast Center as a top facility for the treatment of breast cancer and reconstructive breast surgery, including profiles of doctors practicing at the Breast Center; (ii) it promoted Dr. Rubins as a member of "a team of top breast specialists" working at the Breast Center; (iii) it held breast cancer awareness meetings at local libraries and community centers at which the Director of the Breast Center promoted its services and the doctors who practiced there; (iv) it hosted a regular Online Breast Cancer Chat, during which patients were encouraged to chat online with doctors from the center regarding the diagnosis, treatment and management of breast cancer; (v) it maintained a website which described the Hospital as having gathered the "newest technology and a team of top breast specialists into one comprehensive Breast. Center"; (vi) it sponsored radio programs which promoted the Breast Center; and (vii) it sponsored open houses, encouraging cancer patients to come visit the Breast Center and meet its doctors.
The plaintiffs claim the Hospital took these steps to promote the Breast Center and its doctors because the Breast Center was a lucrative part of the Hospital's operations. They further allege that the Hospital knew: (i) that Dr. Rubins was not a "top breast specialist," but rather, a chronic drug addict; (ii) that Dr. Rubins had been in and out of inpatient rehabilitation several times for addiction to various drugs; (iii) that Dr. Rubins had a history of major depressive disorder and a history of relapse regarding his drug dependence and alcohol abuse; and (iv) that prospective patients of Dr. Rubins would find information regarding his drug addiction relevant in assessing Hospital's marketing claims regarding Dr. Rubins and the Breast Center. The plaintiffs allege that, not only did the Hospital conceal its knowledge of Dr. Rubins' drug addiction, but that the Hospital also made affirmative representations in marketing the Breast Center and Dr. Rubins to the public that it knew to be untrue, and inconsistent with its knowledge of his drug addiction. Additionally, the plaintiffs claim that they paid more for their surgeries by Dr. Rubins than they would have in the absence of the Hospital's deceptive acts and practices.
Upon a fair reading of this complaint, even in light of the standards applicable to motions to strike, the plaintiffs' complaint cannot survive the Hospital's motion. The court finds that the allegations in the complaint essentially relate to the medical competence of Dr. Rubins, and the Hospital's determinations of the professional competence and capability of this physician to continue to practice medicine in a hospital setting. It also implicates elements of the doctrine of informed consent. As such, the complaint does not fall within the ambit of CUTPA.
Before the court proceeds further in its analysis and discussion of the parties' arguments, a clarification and important distinction must be drawn. The actual pleadings themselves contain no mention of any of the statutes the court is about to discuss, nor do they allege a violation of any duty created by these statutes. Rather, the complaint is limited to the claims outlined above. "While . . . the standard to be used in adjudicating a motion to strike requires a favorable reading of the allegations of the complaint, this standard does not require a court to imply the pleading of crucial allegations that are neither present nor reasonably inferable from any actual allegation of the complaint." Bridgeport Hospital v. Cone, complex litigation docket at Waterbury, Docket No X01 CV 98 0151787 (October 24, 2010, Hodgson, J.) ( 28 Conn. L. Rptr. 425). Therefore, the court cannot consider the defendant's possible compliance with these statutes as a further support for its motion to strike, or the possible lack of compliance as further support for the plaintiffs' position here. The court is not discussing the following statutory mechanisms because they have been pleaded or are reasonable inferred from the complaint. Whether or not Dr. Rubins ever actually underwent treatment for substance abuse is not the issue before the court on a motion to strike. This decision discusses these statutes only because they are relevant to the Hospital's argument that it had no legal duty to disclose certain information to patients about Dr. Rubins. If the plaintiffs wish to allege a failure by the Hospital to report Dr. Rubins to the appropriate authorities as required by statute, they may only do so by pleading over.
Duty to Disclose
The defendant argues that it had no duty to disclose Dr. Rubins' substance abuse history or treatment to his patients under these circumstances. The Hospital contends that state and federal laws and regulations explicitly prohibit the disclosure or dissemination of information concerning a physician's substance abuse treatment to any patients of that physician. The Hospital relies upon the fact that there exist statutory mechanisms for dealing with questionable or potentially unfit doctors, and it further implies in its brief that such procedures were followed here, and that Dr. Rubins did receive treatment. General Statutes § 20-13d requires a hospital to file a petition with the Connecticut Department of Public Health (DPH) when it has information that a physician "is or may be unable to practice medicine with reasonable skill or safety for any of the reasons listed in section 20-13c." Section 20-13c includes abuse or excessive use by a physician of drugs, including alcohol, narcotics or prescription drugs. Under section 20-13e, the statute which governs investigations initiated by DPH pursuant to such a petition, "[a]ny such investigation shall be confidential and no person shall disclose his knowledge of such investigation to a third party unless the physician requests that such investigation and disclosure be open." Further, any such investigation remains confidential and not subject to disclosure when the DPH determines that "the physician is an appropriate candidate for participation in a rehabilitation program in accordance with the provisions of sections 19a-12a and 19a-12b."
For example, the Hospital argues, "[T]he entirety of the DPH investigation remains confidential where, as here, the DPH `determines that the physician is an appropriate candidate for rehabilitation . . . In other words, the Act prohibits a hospital from disclosing information concerning a physician's drug use if the physician, as here, enters into the state approved physician assistance program.'" (Emphasis added.) (Defendant's Brief, 3/9/10, p. 6.)
In further support of its position, the Hospital points to the confidentiality provided by Connecticut's peer review statute, General Statutes § 19-17b. This statute prohibits the discovery of information from a proceeding of a medical review committee in any civil action arising out of the matters that were subject of the peer review. The statute defines "peer review" as the "procedure for evaluation by health care professionals of the quality and efficiency of services ordered or performed by other health care professionals." General Statutes § 19a-17b(a)(2).
Additionally, the defendant contends that its alleged actions were not "immoral, unethical, oppressive or unscrupulous," nor did they cause an "unjustified consumer injury." The defendant maintains that its actions were consistent with stated public policy regarding the non-disclosure of Dr. Rubins' substance abuse history and treatment. Therefore, the Hospital cannot be deemed to have acted in an "immoral, unethical, oppressive or unscrupulous" manner, nor could it have thereby caused an "unjustified consumer injury." The defendant argues that the legislature has decided that any potential injury to a particular patient arising from a hospital's inability to disclose a doctor's substance abuse information is outweighed by the countervailing benefits to all patients as a whole.
The Hospital also argues that its failure to disclose Dr. Rubins' substance abuse history and treatment cannot be said to be "unfair" or "deceptive" within the meaning of CUTPA. In the context of an unfair trade practice, deception is comprised of three elements. "First, there must be a representation, omission, or other practice that is likely to mislead customers. Second, the consumers must interpret the message reasonably under the circumstances. Third, the misleading representation, omission, or practice must be material — that is, likely to affect consumer decisions or conduct." Caldor, Inc. v. Heslin, 215 Conn. 590, 597 (1991). The Hospital contends that where the alleged unlawful conduct is a failure to disclose information, courts have held that the conduct can be deceptive "only if, in light of all the circumstances, there is a duty to disclose." Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 523 (1994); see also Assurance Co. of America v. Yakemore, 50 Conn.Sup. 28, 39 (2005) (stating that the general rule is that silence does not give rise to a cause of action).
In response, the plaintiffs contend that the Hospital, pursuant to General Statutes § 20-13d(a), was under an obligation to notify DPH within thirty days of learning of Dr. Rubins' substance abuse. As a result of its failure to report his substance abuse to DPH, the Hospital caused harm to consumers like the plaintiffs, who each paid substantial sums of money for what was advertised as and believed to be a top surgical team at the Breast Center. According to the plaintiffs, the statutory scheme is as follows: After a hospital complies with the reporting requirement, DPH is required to investigate each petition to determine if probable cause exists to issue a statement of charges and institute proceedings against the physician who is the subject. General Statutes § 20-13d(a). If the DPH determines that probable cause exists to issue a statement of charges, the entire record of such proceeding shall be public, unless the DPH determines that the physician is an appropriate candidate for participation in a rehabilitation program in accordance with the provisions of sections 19a-12a and 19a-12b. Id. The DPH is then required to file a statement of charges with the Connecticut Board of Medical Examiners (Board) in order that a hearing panel may be convened. Once convened, the hearing panel is required to conduct a formal hearing and file a proposed final decision with the Board within 12 days from receipt of the issuance of notice of hearings by the Board. General Statutes § 20-13e(a). Within 90 days of receipt of the proposed final decision from the panel, the Board must review the panel's proposed final decision and adopt, modify or remand said decision for further review, or for the taking of additional evidence. General Statutes § 20-8a(h). If the Board takes disciplinary action against a doctor, the DPH is required to make such action public, by posting a summary of the disciplinary acts on the Board's web page within five business days of the Board's monthly meeting. Regs, Conn. State Agencies § 20-13d-1 (2010).
The plaintiffs argue that because the Hospital failed to notify DPH in the first instance, the procedure outlined above was not followed, and a proper investigation into the fitness of Dr. Rubins to practice medicine never took place. Specifically, the DPH was not given the opportunity to: (i) determine whether Dr. Rubins posed a threat in his practice of medicine; (ii) determine whether Dr. Rubins was an appropriate candidate for rehabilitation; (iii) certify that Dr. Rubins was receiving appropriate treatment for his substance abuse; (iv) monitor Dr. Rubins to ensure that he was compliant with any prescribed treatment program; or (v) decide whether. Dr. Rubins should be referred to the Board for further disciplinary action.
Further, the plaintiffs contend that the Hospital had a duty to disclose Dr. Rubins' substance abuse once it made affirmative representations to the public about Dr. Rubins' qualifications as a plastic surgeon. The plaintiffs argue that even if the Hospital was not initially required to disclose any information about Dr. Rubins, once the Hospital had voluntarily made affirmative public representations regarding his ability, it could not then conceal other facts which would materially qualify those statements. Thus, any partial disclosure by the Hospital was, at its core, deceptive. They further argue that even if the Hospital was prohibited from publicly disclosing Dr. Rubins' substance abuse, the Hospital was under no obligation to aggressively advertise his services, and in the process make false representations regarding his status as a "top breast specialist." In sum, the plaintiffs argue that by its own actions, the Hospital created a duty to make a full and fair public disclosure regarding Dr. Rubins' history of substance abuse.
In response to the defendant's argument that it should be exempt from liability under CUTPA because disclosure of Dr. Rubins' substance abuse would have violated state and federal law, the plaintiffs contend that the Hospital has not identified a single statute or regulation that prohibited it from disclosing its knowledge of Dr. Rubins' substance abuse. Specifically, although the plaintiffs concede that section 20-13e provides that an investigation by DPH into a physician must remain confidential under certain circumstances, they argue that this statute cannot shield the Hospital from liability because the Hospital did not file the required petition with DPH. However, as the court has previously noted, such an allegation is not found anywhere in the complaint. The plaintiffs further argue that §§ 19a-17b and 19a-25 relied upon by the Hospital are both inapplicable to these allegations, as they simply prohibit the discovery of the proceedings of medical peer review committees, and any information generated during morbidity and mortality studies. They do not prohibit the Hospital from making complete and truthful disclosures to patients and potential patients in the ordinary course of its business.
The court agrees with the Hospital that it had no duty to publicly disclose the information about Dr. Rubins. One federal appellate judge in the Ninth Circuit recently commented on the legal concept of a safe harbor, noting that, "The creation of a `safe harbor' implicitly warns judges and lawyers of the perils of any other approach." U.S. v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1180 n. 1 (9th Cir. 2010) (Kozinski, J., concurring). The absence of any such safe harbor created in these statutes governing the confidentiality of such addiction/treatment information compels the conclusion that there are no ports in which the Hospital could seek shelter from the perils of the legal storms that would have inevitably followed from any such public disclosures about Dr. Rubins, such as the plaintiffs' complaint seek to fault the Hospital for failing to do here. For example, the complaint contains the following allegations (numbers correspond to the numbering in the complaint):
11. Greenwich Hospital and its agents concealed its knowledge from Dr. Rubins' patients and failed to inform Dr. Rubins' patients about his drug addiction despite its extensive knowledge of this addiction.
26. There are questions of law or fact common to the class, including: . . .
e. whether Greenwich Hospital made various misrepresentations regarding Dr. Rubins and omitted information that reasonable consumers would find material;
46. The conduct of Greenwich Hospital described herein:
1) involves misrepresentations and omissions likely to mislead . . .
This is not a medical malpractice claim, so either this doctor was competent to operate upon patients in the Hospital's Breast Center, to perform life-altering surgeries upon these many women and to otherwise diagnose and treat them, or he was not. Either the Hospital did or did not act reasonably in allowing Dr. Rubins to continue have privileges at the Breast Center through his battles with substance abuse. Society expresses its will through the laws it passes, and the legislature has shrouded the facts and circumstances surrounding anyone in drug rehab — be they doctor, lawyer or Indian chief — with swaths of confidentiality. In the absence of a claim of medical malpractice here, the plaintiffs posit a legal duty on the part of the Hospital under CUTPA to make public disclosures of Dr. Rubins' addiction. However, the plaintiffs have not made any showing, pointed out any safe harbor, any safe path, for the Hospital to do so without thereby running afoul of some law or regulation. Let us posit a different case where the Hospital did in fact go public with the disclosure that one of its doctors was in rehab for heroin addiction. The Hospital would face an inevitable and unwinnable lawsuit, this time from the doctor, perhaps one who is salvageable and unlike Dr. Rubins, able to successfully beat his demons, but a doctor whose medical career is derailed by the Hospital's adverse public exposure of private information.
To repeat, either Dr. Rubins was competent to operate upon patients in the Hospital's Breast Center and to otherwise diagnose and treat them, or he was not. Either he met the professional standard of care or he did not. Either the Hospital acted reasonably in allowing this plastic surgeon to continue to enjoy admitting privileges through his private battles with substance abuse, or it did not. Either the Hospital was within its rights during the time frame in the complaint to hold itself out and to continue to hold Dr. Rubins out to the women of the area as a competent physician and valued member of a specialized team at the Breast Center, or it was not. There was a duty owed to the public here, just as there is a duty all hospitals owe the public regarding any and all of the medical professionals on its staff, a duty not limited to its doctors alone. However, it was not a yellow caution light to patients or potential patients. That makes no sense.
The plaintiffs' allegations raise the specter of an institutional cover-up. A cover-up of the problems associated with one of the Hospital's star MDs. The concealment of addiction with a blanket of advertising. It is about what the Hospital knew or did not know about Dr. Rubins, when it learned of it, what steps it did or did not take, as this doctor's career turned into a train wreck. The Hospital maintains that the plaintiffs cannot make out a CUTPA claim because the Hospital was not legally obligated to notify the public of Dr. Rubins' private battle with heroin addiction, or to disclose any treatment he underwent in connection therewith. To the contrary, by doing so the Hospital may have thereby opened itself up to attack from a different source. By public policy, as expressed in the laws enacted by the legislature, society has carved out huge swaths of confidentiality over the records of people in treatment for drug and alcohol addiction. Dr. Rubins was no exception. In addition to the defendant's motion to strike, the court also heard argument on the Hospital's assertion of the various privileges it contends are applicable to certain of its records about Dr. Rubins being sought in discovery by these plaintiffs. A privilege log was also submitted along with the Hospital's documents for in camera review. While any decision as to the applicability of those privileges to specific documents has been rendered moot by the striking of this complaint, those privileges clearly exist.
If the court were to find as a matter of law that the protection of these plaintiffs mandated some form of public disclosure of Dr. Rubins' problems by the Hospital, it would chill the values the statutory confidentiality provisions are meant to protect. It would inhibit any health care professional from seeking help for his or her addiction in the first instance. It would open the door to a potential lawsuit in every instance where a patient was treated by someone who may have themselves sought treatment. No reasonable Hospital would choose to retain an employee in rehab, and no employee would ever be likely to seek such treatment and thereby run the risk of committing professional suicide. A disclosure standard on the part of the Hospital as posited by the plaintiffs blankets with uncertainty what must be disclosed and when, and offers no security for anyone contemplating help to address their private demons.
There is no public safety/MD exception in the law that has been brought to the court's attention by the plaintiffs such as would address these particular circumstances, and give the Hospital a safe harbor to do the thing that the plaintiffs are urging the Hospital should have done here about Dr. Rubins: tell the world. To say that the Hospital was obligated to go public with Dr. Rubins' addiction or related efforts at treatment is to put the Hospital in an untenable position, one where it could be charged with a breach of its duty of confidentiality. One should not place any individual or institution on the horns of such a dilemma, wherein the Hospital must violate a statutory duty of confidentiality of rehab records in order to meet an allegedly different duty under CUTPA these allegations would create, one where no safe harbor is provided in the law for guidance to the Hospital or other similar health care providers around the state.
Entrepreneurial
In addition to maintaining that its alleged actions were not "immoral, unethical, oppressive or unscrupulous" the Hospital argues that the plaintiffs' complaint fails to state a claim because the Hospital's actions did not arise from the entrepreneurial or business aspects of medicine. In order to sustain a CUTPA claim against a health care provider, the plaintiffs must allege acts that involve the entrepreneurial or business aspect of the services in question. The actions at issue must chiefly concern the entrepreneurial aspects of the practice of medicine, such as the solicitation of business and billing practices — as opposed to claims directed at the competence and strategy employed by the defendant. See Janusauskas v. Fichman, 264 Conn. 796, 809 (2003); see also Haynes v. Yale New Haven Hospital, 243 Conn. 17, 38 (1997) (stating that medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation).
The Hospital argues that the underlying allegations are in reality medical malpractice claims, and should therefore be stricken for failing to properly allege malpractice. Connecticut courts have held that in reading the complaint, it is "not the label that the plaintiff placed on each count of [the] complaint that is pivotal but the nature of the legal inquiry." Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 580, cert. denied, 292 Conn. 111 (2009). The plaintiffs allege that the Hospital knew of Dr. Rubins' drug problems, but that it failed to inform the plaintiffs of these problems. By citing to section 20-13d(a) as the public policy implicated by their claims, the plaintiffs contend that Dr. Rubins was unable to practice medicine with reasonable skill or safety. Thus, the defendant Hospital contends that both counts of the complaint reply on the same core of operative facts to allege malpractice, a deviation from the standard of care by a health care provider. In this case it would include not only the medical competence of the doctor, but a failure by the Hospital to disclose the nature, risks, alternatives, and benefits associated with possible surgery by Dr. Rubins during the relevant time frame.
Further, although advertising by a hospital could conceivably constitute an entrepreneurial aspect of the practice of medicine which might support a CUTPA claim, Janusauskas v. Fichman, supra, 264 Conn. 811; the defendant argues that a "profit motive" does not implicate the entrepreneurial or business aspects of medical services in the present matter. Specifically, the defendant relies on language in Janusauskas v. Fichman, supra, 264 Conn. 811 n. 13, which states: "[A] doctor's actions are entrepreneurial if undertaken in order to gain patients or to increase profits. We previously have stated, however, that with respect to the practice of law, [m]any decisions made by attorneys eventually involve personal profit as a factor, but are not considered part of the entrepreneurial aspect of practicing law . . . Using an attorney's financial considerations as a screening mechanism for separating professional actions from entrepreneurial ones would dissolve the distinction between the two, subjecting attorneys to CUTPA claims for any decision in which profit conceivably could have been a factor." Thus, the defendant contends that just as with the practice of law, an inquiry into motivation in the practice of medicine is not particularly useful, as "[v]irtually any choice in medical treatment can be characterized as having some cost impact and thus be alleged to be related to commercial aspects of . . . health care." Bridgeport Hospital v. Cone, supra, 28 Conn. L. Rptr. 425. Further, the "dichotomy recognized by the Supreme Court [in Haynes] with regard to CUTPA claims against health care providers is not based on whether the motivation for an act is medical judgment or commercial advantage, but whether the act is part of the practice of medicine or part of the business of running a facility." Id.
The plaintiffs allege that the Hospital "promoted" its Breast Center in a variety of forums as being a "top facility" that had the "newest technology and a team of top breast specialists." The plaintiffs allege that these representations were false because Dr. Rubins was not a top breast specialist, but rather a chronic drug addict. The defendant Hospital argues that addiction is an illness which is not mutually exclusive with being a top breast specialist. Further, the defendant contends that representations concerning the quality of care do not implicate the entrepreneurial aspects of medical services. In support of its position, the defendant relies on Haynes v. Yale New Haven Hospital, supra, 243 Conn. 17, in which the plaintiff sought relief under CUTPA for deceptive entrepreneurial or business practices. Specifically, the "plaintiff alleged that the defendant hospital was certified as a major trauma center and held itself out as such, but failed to staff the emergency department adequately, and that it failed to train and support adequately its existing staff to meet the applicable standards for a major trauma center." (Emphasis added.) Id., 38. The court noted that it was undisputed that the defendant hospital was a certified major trauma center, and "[t]herefore, it was not a misrepresentation when it held itself out as certified . . . We conclude that this representation [was] simply what all physicians and health care providers represent to the public — that they are licensed and impliedly that they will meet the applicable standards of care. If they fail to meet the standard of care and harm results, the remedy is not one based upon CUTPA, but upon malpractice." Id., 38-39.
Here, the plaintiffs' allegations call into question the medical competence of Dr. Rubins, and imply a corresponding failure of the health care provider Hospital to accurately represent to the public that the Breast Center and its doctors will meet the applicable standards of care. In Janusauskas v. Fichman, supra, 264 Conn. 796, the plaintiff alleged that a doctor violated CUTPA by advertising that he was "one of the country's leading doctors in his field." Id., 799. The Supreme Court concluded that, "Like the representation in Haynes that it was a major trauma center, this statement simply represents to the public that the defendant will meet the standard of care applicable to a "leading doctor." If the defendant fails to meet this standard of care and harm results, the remedy would be based upon malpractice, and not upon CUTPA." Id., 810. The defendant argues that the Hospital's alleged promotion of the Breast Center as a "top facility" with a "team of top breast specialists," was simply a representation to the public that the Breast Center and the doctors having privileges there would meet the applicable standard of care. While the plaintiffs assert that their complaint is not based on a theory of malpractice, it is undisputed that these allegations seek to impute CUTPA liability to the Hospital's Breast Center for falsely holding itself out as a top facility for the treatment of breast cancer and reconstructive breast surgery.
The plaintiffs argue that the Hospital knowingly made false statements in its advertising about Dr. Rubins' proficiency and status in the medical community in order to promote the Breast Center, and shield it from regulatory oversight and public scrutiny. The plaintiffs attempt to distinguish both cases upon which the defendant Hospital relies. In Haynes, the plaintiff alleged personal injuries as a result of medical negligence and claimed that the defendant Hospital violated CUTPA by holding itself out as a "major trauma center." The plaintiff in Haynes did not allege that the defendant hospital misrepresented its status as a major trauma center, but alleged that the level and quality of its staffing did not meet the applicable standard. In Janusauskas, the plaintiff brought claims for medical malpractice, lack of informed consent and CUTPA. The plaintiff supported his CUTPA claim by asserting that he relied upon the defendant's advertisements and representations, and was induced to engage the defendant's services by these advertisements. However, the court held that: "Although the . . . advertising was . . . entrepreneurial in nature, the plaintiff has not shown that the advertising was unfair, unconscionable or deceptive." Id. The plaintiffs argue that Janusauskas does not stand for the proposition that misrepresentations by a hospital of the skill and proficiency of its health care providers can never support a CUTPA claim, and further argue that their allegations are legally sufficient.
The plaintiff patients of the Hospital seek further support in cases where CUTPA was employed to address claims of intentional misconduct in aid of a business transaction. In Dudrow v. Ernst Young, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 98 01 44211 (September 14, 1999, Hodgson, J.), the court stated: "The Connecticut Supreme Court has not had occasion to decide whether intentional misconduct in aid of a client's business transaction is actionable under CUTPA. While such conduct of course may also be a departure from the standard of care, it is difficult to see why intentional misconduct would not be held to constitute an entrepreneurial trade practice since it would constitute a stark departure from the standards understood to be embodied in the work of professional services, that is, a commitment to adhere to standards instituted for conduct within the professions. It does not seem logical, for example, that use of a professional role to commit a fraud would not be actionable under CUTPA, since such a perversion of professional standards would be such a departure as to render the activities merely entrepreneurial practice rather than professional performance." Such arguments might gain more traction in a CUTPA action against another type of business defendant, but they fall short against a health care provider like the Hospital.
Yet public disclosure is only one half of the picture, and a lack of an insufficient duty to disclose, or even a statutory duty not to disclose on the part of the Hospital does not end the court's inquiry. Is there not any corresponding duty to the public? A duty to the patients of the breast center like these plaintiffs, patients of the Hospital, patients ignorant of the circumstances of their doctor, this trained plastic surgeon, this man Ian Rubins to whom they were entrusting their bodies and their selves for surgeries and other life altering decisions? The Hospital can plausibly say it was not obligated to disclose the bad or problematic aspects of Dr. Rubins, and indeed the Hospital was legally prohibited from doing so due to statutory confidentiality. The plaintiffs counter that the Hospital was therefore also not allowed to continue to publicly tout him and his expertise, to allow him unfettered use of Breast Center and Hospital facilities to perform surgeries on women like these plaintiffs? In other words, if public disclosure by the Hospital of the bad as to Dr. Rubins is not legally possible, can public advertisement by the Hospital of only the good as to Dr. Rubins be legally protected? Patients and the public are placed at potential risk in either scenario. However, questions related to a doctor's medical competence and a hospital's decision as to that doctor's fitness to practice in a hospital setting cannot be answered in the CUTPA context.
There is no doubt that these plaintiffs would have never submitted to any surgeries by Dr. Rubins had they known in advance or been told of his addiction, with the real possibility of an adverse or even potentially fatal outcome to them, such as if the doctor was under the influence at any time while wielding his scalpel upon them. A certain analogy comes to mind. It is that of a group of parents in a neighborhood where all their children ride a bus to school every day. Unbeknownst to these parents, the driver of their children's bus is a chronic alcoholic, a man who regularly drives the bus to and from school, on any given day perhaps under the influence. No responsible parent in that neighborhood would ever entrust their children to that driver, or even let their children board the bus with that driver behind the wheel if that information were known to the parents. This is so even if that bus driver was lucky enough to have never had an accident along his route. Now suppose it turns out that the school bus company knew full well of their driver's alcoholism, yet the company continued to let him drive, drunk or sober, with responsibility for large groups of children, with the company making handsome profits for itself along the way. Would there be no possible remedy against the school bus company, a company with full knowledge of their employee driver under those circumstances? What if the company also touted this driver's safety records in advertisements in an effort to win new bus routes and contracts for the company? However, while it takes far more skill to properly perform breast surgery than to drive safely, this analogy has limited application to a CUTPA case against a hospital. "The obligation to make such disclosures so that a patient may make an informed consent whether to undergo care, including care that consists of admission to a hospital, relates to the provision of health care." Bridgeport Hospital v. Cone, supra, 28 Conn. L. Rptr. 425. CUTPA is simply not designed to address the provision of health care by a hospital. "To date, the Supreme Court has approved the application of CUTPA only to the business operations that are the same for a business offering any other kind of product or service, such as billing or transactions involving corporate assets. Haynes v. Yale-New Haven Hospital [ 243 Conn. 17 (1997)]; Fink v. Golenbock, [ supra, 238 Conn. 183]." Bridgeport Hospital v. Cone, supra, 28 Conn. L. Rptr. 425.
Conclusion
This case is an illustration of the fact that when it comes to the medical profession and the rendering of medical services, the consumer is often not the proper judge of the competence of the professional, of doctors like Dr. Rubins. This is not a slight against the patient, but rather, a recognition of the fact that, as one distinguished law school professor put it long ago, "The art of medicine is intricate, and the relation of the treatment of the sick to results obtained cannot be appraised by a layman; in medicine, almost more certainly than anywhere else, the patient has not the knowledge requisite for judgment." Despite the greater availability of some medical information now available online to laypersons and consumers of healthcare, this statement is still true today. For example, it is why expert opinions are essential and required in order to maintain any cognizable medical malpractice claim against a doctor. Coupled with that disparity in knowledge by patients in the position of these plaintiffs is one further reality. The ancient and honorable profession of medicine has long since, as the good professor put it, "lived on into an epoch in which it has to make its terms with, and employ pecuniary devices from, and to respond to the incentives of, business . . . [T]he profession has now to be practiced in an industrial world dominated by business." Id.
Walton H. Hamilton, Medical Care for the American People: The final report of the Committee on the Cost of Medical Care, Chicago University Press, 1932. The author of this report as well as many other publications, Hamilton served as Southmayd Professor of Law at Yale Law School from 1928 to 1948. A professorship has since been established in his honor at the law school.
Unfair trade practice statutes were clearly not enacted to address potential abuses in the practice of medicine itself. That is what medical malpractice claims are for. But CUTPA could conceivably address potential abuses in the business of medicine. Despite the fact that the Hospital has a financial interest in its Breast Center, essentially it is the medical competence or incompetence of Dr. Rubins that is at the heart of these allegations, and the Hospital's decision as to that issue and the standard of the care rendered and the provision of health care services are beyond the reach of CUTPA. If the plaintiffs have a basis for making a claim that the Hospital violated its duty to notify the DPH about Dr. Rubins in a timely manner, as the plaintiffs allege in their brief (but not in their complaint currently before this court), they may plead over as permitted by Practice Book § 10-44. Such allegations however, cannot be read into the present pleadings.
For the reasons stated herein, the motion to strike counts one and two is granted.
IT IS SO ORDERED.