Opinion
No. 07-5000540
June 5, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#126)
FACTS
On May 19, 2008 the plaintiff, Nancy Birge, filed her fourth amended complaint against the defendants, Medical Electronic Distributors, Inc., International Medical Electronics, Ltd. and Richard Meehan. The plaintiff's amended complaint consists of twelve counts. In counts one through six, which are the only counts at issue, the plaintiff alleges the following facts. The plaintiff had been receiving treatment at the Healthsouth Rehabilitation Center of Connecticut since September 24, 2003, for neck and upper back injuries. On October 2, 2005, when she attended her physical therapy appointment, employees of the center informed the plaintiff that her therapy would include heat therapy. The plaintiff was instructed to remove her shirt and necklace and change into a medical gown. Meehan applied the heat therapy with a machine known as a "Magnetherm," which the codefendant International Medical Electronics, Ltd. manufactures and the codefendant Medical Electronic Distributors, Inc. distributes. Despite the plaintiff's complaint that her shoulder was burning, Meehan continued to apply the heat therapy. When he finally removed the heat pads from the plaintiff's shoulder, a large blister had formed on the top of her scapula. Later, the plaintiff found out that Meehan was not a medical professional, but a salesperson (regional sales manager) employed by Medical Electronic Distributors, Inc. and International Medical Electronics, Ltd. In counts one through three which claim violation of the Connecticut Unfair Trade Practices Act (CUTPA), the plaintiff further alleges that the defendants repeatedly failed to train, instruct and monitor their employees and the defendants authorized their employees to perform therapy upon patients. In counts four through six, the plaintiff further alleges that the defendants invaded her privacy by having her undergo a medical procedure by an unlicensed medical provider without informing her of Meehan's lack of proper training and his identity as a salesperson.
On December 17, 2008, the defendants filed a motion to strike the plaintiff's entire fourth amended complaint. On the same day, the defendants filed a memorandum of law in support of their motion. On February 2, 2009, the plaintiff filed an objection to the motion as to counts one through six. The defendants' motion to strike was not opposed as to counts seven through twelve and those counts were stricken at short calendar on February 9, 2009.
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). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
Counts One through Three: Violation of CUTPA
The defendants argue that counts one through three fail to state a CUTPA claim because the defendants' alleged misconduct is based solely upon a negligent act. The plaintiff counters that her complaint directly addresses the defendants' immoral, unethical, oppressive unscrupulous or offensive to public policy practices and that there is no admission in her complaint that her injuries were solely caused by the defendants' negligence.
"[General Statutes § ]42-110b(a) 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. 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 . . . Thus, a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . . In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice." (Citations omitted; internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 18-19, 938 A.2d 576 (2008).
"By way of analogy, in the consumer context, the Federal Trade Commission has identified the four primary categories of practices which have been prohibited as unfair: (1) withholding material information; (2) making unsubstantiated advertising claims; (3) using high-pressure sales techniques; and (4) depriving consumers of various post-purchase remedies." (Internal quotation marks omitted.) Id., 22, n. 21.
In the present case, the plaintiff alleges in her fourth amended complaint that Meehan, a salesman employed by the codefendants, Medical Electronic Distributors, Inc. and International Medical Electronics, Ltd., continued to apply the heat therapy in spite of the plaintiff's complaint that her shoulder was burning and that the plaintiff sustained burn injuries. The plaintiff further alleges that "[a]s a part of their practices to increase profits in the medical equipment sales business, the defendant[s] failed to properly train, instruct and monitor its employees on the proper way of selling and demonstrating medical equipment to its clients." Additionally, she alleges that her injuries were caused by the defendants' "acts and practices as alleged herein in concealing from the plaintiff the acts alleged above." The court finds that the defendants' conduct and practice as alleged in the complaint go beyond mere negligence and satisfy the criteria set out in the cigarette rule. Causing injury to a patient by performing heat therapy without proper training while withholding information on the therapy provider's real occupation and his lack of training violates public policy and is immoral, unethical, oppressive or unscrupulous. General Statutes § 20-9 prohibits treating any injury of another person without a medical license, and it is a violation of General Statutes § 20-73 to perform a physical therapy procedure without a physical therapy license.
The plaintiff's alleged damage meets the third prong of substantial injury as well. "While a CUTPA claim may not be appropriate to recover damages for personal injuries . . . expenditures for medical bills . . . constitute an `ascertainable loss of money.'" Mulqueen v. Nutri System Weight Loss Center, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 90 0113014 (May 29, 1992 Rush, J.) (6 Conn. L. Rptr. 459, 459). The plaintiff alleges that as a result of her burn injuries, she incurred expenses for medical care, treatment and drugs in addition to suffering pain, disability and mental anguish. "To justify a finding of unfairness the injury must satisfy three tests. It must be substantial; it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and it must be an injury that consumers themselves could not reasonably have avoided." A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 216, 579 A.2d 69 (1990). All three of the tests can be satisfied by the plaintiff's allegations.
Construed in the manner most favorable to the plaintiff, her allegations in counts one though three are sufficient to withstand a motion to strike. Accordingly, the defendant's motion to strike counts one through three is denied.
Counts Four through Six: Invasion of Privacy
The defendants argue that the plaintiff has failed to allege that the defendants performed highly offensive intrusive conduct for her invasion of privacy claims because the plaintiff consented to the alleged heat treatment and voluntarily received it. The plaintiff counters that whether offensiveness exists is a factual determination and that a reasonable jury may conclude it offensive that a salesman operated the heat treatment machine on her without fully disclosing his true occupation or that the device was being offered for sale to Healthsouth Rehabilitation Center.
"Connecticut recognizes a cause of action for invasion of privacy." Hellanbrand v. National Waste Associates, LLC, Superior Court, judicial district of Hartford, Docket No. CV 07 5010727 (January 31, 2008, Hale, J.T.R.) (44 Conn. L. Rptr. 849, 852) "[T]he law of privacy has not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be left alone. [W.] Prosser, Torts (4th Ed. 1971) § 117, p. 804. The four categories of invasion of privacy are set forth in 3 Restatement (Second). Torts § 652A [1977] as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public." (Internal quotation marks omitted.) Foncello v. Amorossi, 284 Conn. 225, 234, 931 A.2d 924 (2007). The only category that is applicable to the present case is unreasonable intrusion upon the seclusion of another. "The Connecticut Appellate Courts have not yet set forth the necessary elements of a claim for unreasonable intrusion upon seclusion." Hellanbrand v. National Waste Associates, LLC, supra, 44 Conn. L. Rptr. 852. "Comments to the section of the Restatement adopted by the Supreme Court in Goodrich [v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982)], however, state that `One who intentionally intrudes physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.' 3 Restatement (Second) of Torts, 652B (1977)." Bonanno v. Chevrolet, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 99 066603 (February 4, 2000, Nadeau, J.).
"The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be by use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. [3 Restatement (Second), Torts § 652B], comment (b). The defendant is subject to liability under the rule stated in this Section [652B] only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs . . . Even in a public place, however, there may be some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters Id., comment (c) . . .
"Even in a public place, there may be some matters about the plaintiff, such as the most intimate parts of her body, that are not exhibited to the public, and there may still be an invasion of privacy when there is intrusion upon these matters. See 3 Restatement (Second), Torts § 652B, comment (c). Furthermore, highly personal questions or demands by a person in authority may be regarded as an intrusion on psychological solitude or integrity and hence an invasion of privacy." W. Prosser W. Keeton, Torts (5th Ed. Supp. 1988) 177, p. 121." (Internal quotation marks omitted.) Gallagher v. Rapoport, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0149891 (May 6, 1997, D'Andrea, J.) (19 Conn. L. Rptr. 474, 475).
Research has revealed no Connecticut cases which address facts similar to the present case. Case law from other jurisdictions, however, is instructive.
In Sanchez-Scott v. Alza Pharmaceuticals, 86 Cal.App. 4th 365, 103 Cal. Rptr. 2d 410 (2001), the plaintiff, a breast cancer patient, went to a doctor's office for an examination. Id., 369. The doctor allowed a defendant, a drug salesperson, to stay in the room during the plaintiff's examination without disclosing the defendant's status as a salesperson. Id. During the examination, plaintiff was required to undress in front of the salesperson. Id. The California Appellate Court noted that "[i]t cannot be easily disputed that medical examinations involve private matters." Id., 375. The court further stated, "[a]lthough by checking himself [or herself] into a hospital, a patient may well waive this right of privacy as to hospital personnel, it is obvious that he has not turned `his' [or her hospital] room into a public thoroughfare. Indeed, the classic example of tortious invasions of privacy involves a hospital room . . . [A] hospital room is clearly not a public hall which anyone in the building is free to use as needed.
A breast cancer patient who goes into an oncologist's office to be examined does not, nor should she, take a risk that what goes on in the examination room will be seen or heard by anyone other than medical personnel. She does not take a risk that a drug salesperson will be a part of the process during which her breasts will be examined. Therefore, the mere presence of . . . a drug salesman in the examination room could be deemed by a trier of fact to be both a physical and sensory intrusion into plaintiff's seclusion. Under such circumstances, we conclude that jurors could conclude a breast cancer patient such as plaintiff had an objectively reasonable expectation of privacy in the medical examination room of her oncologist." Id., 376.
In that case, the defendants, the doctor and the drug salesperson, argued that their conduct was not highly offensive because the plaintiff consented to the salesperson's presence in the examination room. Id., 376. The court stated that "in determining whether offensiveness exists, a court must consider a variety of circumstances of the intrusion . . . The factors include: (1) the degree of intrusion; (2) the context, conduct and circumstances surrounding the intrusion; (3) the intruder's motives and objectives; (4) the setting into which the intrusion occurs; and (5) the expectations of those whose privacy is invaded." Id., 377. The court emphasized that "[t]he complaint makes it clear that plaintiff, a cancer patient, never consented having an examination of her breasts observed by a male drug sales person. At no time did [the doctor] explain [the salesperson]'s true identity. Further, [the sales person] never explained his true identity." Id., 377. The court concluded that "the complaint alleges highly offensive conduct involving a cancer patient whose breasts were observed by a drug salesperson, whose occupation was never disclosed, during an examination inside the confines of a physician's office. It bears emphasis that there are specific allegations that plaintiff was never advised as to [the sales person]'s role other than he was present to watch." Id. 377-78.
In that case, the California Appellate Court relied on the 1881 seminal ease of De May v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881), for its analysis of the tort of unreasonable intrusion upon seclusion. "In De May [v. Roberts], a physician took a nonprofessional male . . . to a patient's home to assist in the delivery of a baby. The physician introduced the gentleman identified only as Mr. Scattergood, to the patient's husband as `a friend.' Mr. Scattergood had no knowledge about the practice of medicine. However, Mr. Scattergood was allowed to assist in the delivery by taking the patient's hand and holding her during a paroxysm of pain.'" Sanchez-Scott v. Alza Pharmaceuticals, supra, 86 Cal.App. 4th 374. There, the Michigan Supreme Court ruled that "the plaintiff and her husband had a right to presume that a practicing physician would not, upon an occasion of the character, take with him and introduce into the house, a young man, in no way, either by education or otherwise, connected with the medical profession." De May v. Roberts, supra, 46 Mich. 163. The court further held that "[t]he fact that at the time, she consented to the presence of Scattergood supposing him to be a physician, does not preclude her from maintaining an action and recovering substantial damages upon afterwards ascertaining his true character." Id., 166. The court concluded that both the physician and Mr. Scattergood were liable for the intrusion. Id.
In the present case, viewed in the light most favorable to the plaintiff, her allegations in counts four through six are sufficient to state a claim for invasion of privacy based on an unreasonable intrusion upon the plaintiff's seclusion. The plaintiff alleges that the defendant Meehan was present in a hospital treatment room where the plaintiff was expecting a medical treatment while she was wearing a medical gown with her shirt removed and that she was never informed that Meehan was not a medical professional, but a salesperson. As discussed above, "medical examinations involve private matters." Sanchez-Scott v. Alza Pharmaceuticals, 86 Cal.App. 4th 365, 375. The same should be true with medical treatment and therapy. The plaintiff further alleges that there was touching of the plaintiff's body by Meehan, which resulted in her burn injuries because of Meehan's lack of training and credentials. "In fact, as a matter of basic human decency, it is difficult to imagine something more deserving of the right to privacy than one's own body." Liu v. Striuli, 36 F.Sup. 2d 452, 479 (D.R.I. 1999). The plaintiff had a reasonable expectation that no one other than medical personnel would be present in her treatment room and provide treatment. The presence of Meehan, a salesperson, in the treatment room and his touching of the plaintiff's body intruded upon the plaintiff's seclusion.
The defendants' argument that their conduct was not highly offensive because the plaintiff consented is not persuasive. The plaintiff's complaint clearly alleges that Meehan's status as a sales person was never disclosed to the plaintiff until after she incurred the injury. Her alleged consent was not an informed one. When the totality of the circumstances of the intrusion are examined, a reasonable jury may find that the defendants' conduct was highly offensive. Accordingly, the defendants' motion to strike is denied as to counts four through six.
CONCLUSION
For the foregoing reasons, the defendants' motion to strike is denied as to counts one through six. The defendants' motion to strike counts seven through twelve was not opposed and granted at short calendar.