Opinion
FBTCV126029435S
04-06-2017
Marjorie Partch v. Wilton Meadows Health Care Center Corp
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
1. Findings of Fact
Marjorie Partch (" Marjorie") loved her mother, Dorothy Partch (" Dorothy"), and they had a close and caring relationship. When her mother had a minor stroke in 2004, Marjorie moved from her home in Vermont to her family home in Norwalk to take care of her mother. From 2004 until 2010, Marjorie was in charge of her mother's care. In 2005 Dorothy signed a durable power of attorney (" Power of Attorney") that appointed Marjorie as her attorney-in-fact and health care instructions (" Instructions") that designated her as Dorothy's health care agent and putative conservator if Dorothy became incapacitated. In 2005 Dorothy also executed a last will and testament that designated Marjorie as executor and sole beneficiary of her testamentary state (the " Will").
Marjorie described Dorothy as her confidant, adviser, best friend and soul mate.
On March 19, 2010, Dorothy had a major stroke and was admitted to the Norwalk Hospital. When she was discharged from the hospital on April 7, 2010, the discharge notes describe her as follows: " [t]he patient remains with a very dense left hemiplegia, flaccid and unable to participate in any meaningful rehab program at this time." The hospital discharge notes also state Dorothy " will require around-the-clock help." Dorothy was receiving nourishment through a feeding tube and was strictly " NPO, " which meant she was to be fed exclusively through the tube and not by mouth. The hospital was concerned that Marjorie would feed Dorothy foods that presented a clotting risk that could clog the feeding tube. Marjorie and hospital staff were at odds about Dorothy's capabilities. The discharge notes state as to Dorothy's awareness and ability to communicate: " She kept her eyes closed most of the time. Even though the daughter reported with her the patient was awake and conversant. Unfortunately, none of the vast rehabilitation staff was able to witness those interactions."
On April 7, 2010, Dorothy was transferred to a nursing home, defendant Wilton Meadows, as a rehabilitation resident. Marjorie admitted Dorothy in her capacity as attorney-in-fact. The resident admission agreement signed by Marjorie on April 25, 2010, clearly indicates that she was acting for Dorothy as her attorney-in-fact under power of attorney. Marjorie also signed the admissions agreement as responsible party.
Marjorie described herself as having been " a professional healer for thirty years." She testified she did not " subscribe to the western medical model, " but preferred a holistic approach for treating the mind, body and spirit drawing from Chinese and Indian traditions. Her preferred approach is to use nutrition, herbs and yoga to prevent disease and to use acupuncture and " reiki, " also known as the " healing touch, " to alleviate pain. In her capacity as holistic healer Marjorie treats patients and regularly consults with doctors of naturopathy, herbalists and acupuncturists. During the six years Dorothy had been under Marjorie's care at home she had lived a holistic lifestyle. Marjorie intended to continue Dorothy's holistic lifestyle at Wilton Meadows and to treat her mother using a complementary approach that combined western medicine and pharmaceuticals with the eastern holistic practices and herbal remedies Marjorie preferred. Marjorie intended to put together a team of certified holistic practitioners (i.e. herbalist, acupuncturist etc.) and Dorothy's community neurologist, Dr. Daryl Story, which she referred to as a " complementary team." Marjorie intended that, with her in a healer/therapist role overseeing Dorothy's care, her team would treat her mother alongside the doctors, nurses, pharmacists, and therapists engaged through the nursing home. Marjorie wanted to remain in overall control of her mother's treatment and care at Wilton Meadows. Marjorie testified she selected Wilton Meadows for her mother's rehabilitation after receiving assurances that the nursing home would be receptive to her plans for complementary care of her mother. Inevitably, Marjorie's approach and that of Wilton Meadows created conflicts between her and Wilton Meadows' professionals, staff and administration.
Marjorie had not been satisfied with her mother's care by other institutions prior to Wilton Meadows. Marjorie had vowed never to put her mother in a nursing home again, but felt she had no choice given her mother's fragile condition following the major stroke. She approached Wilton Meadows with skepticism and distrust. Marjorie believed that Wilton Meadows had " sidetracked" Dorothy to regular long-term care, rather than the temporary rehabilitation she needed to return to home care. Marjorie testified that she delayed signing the admissions agreement for nearly three weeks because it described Dorothy as a " resident, " and Marjorie's plan was to have Dorothy returned to home care as soon as she had completed a satisfactory level of rehabilitation at the nursing home.
Marjorie testified she felt under duress at the time she admitted Dorothy to Wilton Meadows: the hospital was pushing to discharge Dorothy but Marjorie was afraid to bring her home when she was in such " delicate" condition.
Marjorie testified that her mother was more aware and verbal than the evidence submitted by Wilton Meadows and other witnesses showed. Marjorie testified that her mother could speak in sentences, could interact with others and was aware of what was happening around her. The testimony of other witnesses, and nursing home records, portrayed Dorothy as largely non-verbal, dependent and frail; the witnesses and records reported she usually kept her eyes shut. Not surprisingly, the professionals at Wilton Meadows and Marjorie differed on what progress Dorothy could make in therapy. Marjorie was dissatisfied with the therapy Dorothy received at Wilton Meadows and disputed the therapists' evaluation of Dorothy's progress and prognosis. Marjorie was upset when her mother's physical and occupational therapy at Wilton Meadows was ended on May 21, 2010. Dorothy was discharged from therapy based on her therapists' evaluation that she had reached " her maximum rehab potential." Marjorie disagreed with the evaluation of the rehab team and believed that with a holistic approach and alternative medicine, including herbal medication and spiritual healing, her mother could recover from the stroke symptoms. The nurses' notes indicated Marjorie believed her mother could make a miraculous recovery given the right treatment and therapy. Although Marjorie in her testimony disputed the evidence in the therapists' notes that Marjorie believed her mother would walk by the end of July, it is clear that she had a more sanguine view of her mother's capabilities, progress and prognosis than the professionals at Wilton Meadows.
It is also clear that Marjorie resisted the nursing home's plan to discharge Dorothy to home care when her Medicare benefits ran out in July 2010. Amy Lombardo, a social worker employed by Wilton Meadows, met with Marjorie in June 2010 to discuss a discharge plan for Dorothy. Marjorie declined to have an evaluation done of the family home to ensure Dorothy's safety upon her return home. A home evaluation assesses any changes needed to accommodate a patient's disabilities such as ramps, handicapped bathrooms, and widened thresholds for wheelchair access. Marjorie requested a 30-day extension until August 2010, when she thought her mother would improve sufficiently to be discharged to the family home or to some other suitable location. Ms. Lombardo also pressed Marjorie to complete the nursing home's admissions package, including information about the patient's finances, which had never been received when Dorothy was admitted. Marjorie supplied some but not all the financial information requested. Wilton Meadows was concerned about Marjorie's reluctance to participate in the evaluation of the family home necessary for discharge, her vague plans as to where Dorothy would reside after discharge and Dorothy's ability to afford private patient fees when Medicare benefits were to run out in mid-July 2010. Wilton Meadows was also concerned about Marjorie's involvement in her mother's care and disputes she was having with the staff and administration.
Although there was evidence of some efforts to plan for home care and to prepare the family home to receive Dorothy, it was evident that needed renovations were never undertaken. Marjorie never asked to bring Dorothy home. Dorothy never returned home but remained resident at Wilton Meadows until 2013 and then resided in another nursing home until her death in 2015. In or about May 24, 2010, Marjorie was so distressed about her inability to prepare the house to receive Dorothy and about her finances that friends gifted $5,000 to help her out. There is no evidence these funds were used for needed renovations. Marjorie later consulted with a not-for-profit agency which assists in home renovations for the handicapped, but no renovations were ever done to prepare the home for Dorothy's return.
On or about July 8, 2010, Wilton Meadows applied to have an involuntary conservator appointed for Dorothy. Amy Lombardo filled out the application with assistance from attorney Matthew Caputo, the proposed conservator of Dorothy's estate and person. The application incorrectly declared that Dorothy " [h]as not appointed a health care agent." The applicant responded " unknown" to questions about whether Dorothy had executed a living will, a power of attorney for health care decisions and a durable power of attorney. In fact, Dorothy had appointed Marjorie as her health care agent and had executed a living will, a health care power of attorney and a durable power of attorney in favor of Marjorie. In the Instructions Dorothy had stated her preference was to have Marjorie appointed conservator if she became disabled. Marjorie accused Wilton Meadows of falsifying the application to trick the probate court into appointing Mr. Caputo as Dorothy's conservator and thereby seizing control of Dorothy's person and estate. There is no evidence to support this accusation. The credible testimony of Ms. Lombardo and Mr. Caputo is that Wilton Meadows was aware that Marjorie professed to act as attorney-in-fact and health care agent for Dorothy, but Marjorie had not provided copies of the instruments to Wilton Meadows. Attorney Caputo had advised Ms. Lombardo to respond " unknown" to those questions for which there was no written evidence of the authority claimed by Marjorie. Attorney Caputo's advice was to let the probate court " sort things out" at the hearing.
This statement on the application was false because Marjorie had been designated as health care representative in the Instructions. Ms. Lombardo's testimony about why she stated that Dorothy had not designated a health care agent was confusing and unsatisfactory. Her explanation was that Dorothy did not have a community doctor, which also was an incorrect statement. This suggests Ms. Lombardo did not know what a " health care agent" is, unlikely for a social worker experienced in working at a nursing home, or there was a breakdown in communication with Mr. Caputo. To be consistent, Ms. Lombardo should have written " unknown" next to the health care agent question. There was no evidence Ms. Lombardo intended to deceive the Probate Court. The vagueness of the application read as a whole should have raised questions to be resolved at the hearing in Probate Court. As discussed below, however, there is nothing in the record of the probate court hearing that reveals the Probate Judge was aware of the Power-of-Attorney or Instructions before Attorney Caputo was appointed Dorothy's conservator. There also is no evidence the Probate Court was misled by anything in the application, which was not mentioned in the record of the hearing.
Wilton Meadows did not disclose to Marjorie that an application for an involuntary conservatorship was being prepared. Amy Lombardo testified they did not tip off Marjorie out of concern for Dorothy's safety. The date of the doctor's examination was July 1, 2010, and the application was filed with the Probate Court on July 8, 2010, so it is likely Mr. Andrew Krotchko, Director of Wilton Meadows (" Krotchko"), approved seeking appointment of a conservator in the latter days of June 2010, presumably after the various incidents with Marjorie in April, May and June 2010, and after her meeting with Amy Lombardo about the impending Medicare expiration in which Marjorie declined a home evaluation and failed to complete the admissions packages presented to her by Ms. Lombardo, which Marjorie had neglected to complete on admission in April 2010; that conversation occurred sometime in June 2010.
There was a great deal of testimony and other evidence at trial concerning the need to appoint a conservator for Dorothy. From the date of Dorothy's admission on April 7, 2010, until the conservator's appointment on July 27, 2010, Marjorie had frequent disputes with Wilton Meadow's staff, administration and physicians. Marjorie was determined to control all aspects of her mother's care at Wilton Meadows. Marjorie spent an average of 12 hours per day at Wilton Meadows, sleeping in her mother's room, to monitor Dorothy's care because Marjorie did not trust Wilton Meadows to provide the care she believed her mother needed. Marjorie was very critical of the care provided by Wilton Meadows. At a routine physical of Dorothy upon her admission Marjorie interceded when she thought the physician conducting the examination, Dr. Radin, was being too rough and causing her mother pain. At Marjorie's request, Dr. Radin, the Medical Director of Wilton Meadows, within two weeks of Dorothy's admission, was replaced as her primary physician by Dr. Perlin, a consulting physician. Marjorie was also critical of certain aides who she felt were too rough and did not know the proper techniques for turning her mother in bed and aiding in transitions to and from her bed using a hoyer lift. Marjorie posted directions from Norwalk Hospital in her mother's room to remind the staff of the proper way to position and turn a patient and how to use a hoyer lift for transitions. Nursing notes, therapy records and physician order sheets reflected Marjorie's many disagreements about the treatment Dorothy was receiving. For example, nurse's note on May 1, 2010, states Marjorie requested the nurse to discontinue an anti-seizure medication prescribed for Dorothy. Marjorie denied the accuracy of the nurse's note and explained she merely wanted the dosages reduced. Marjorie chastised staff for waking her mother up too early. Her conflicts and disagreements with physicians, therapists and aides are also detailed in the nursing home records. Many of the responses from Wilton Meadows' professionals and staff to her criticisms were dismissive; they regarded her as interfering with their work and their responses could best be summed up as telling Marjorie that they knew what they were doing and they did not need her advice and direction. Clearly, Wilton Meadows' professionals and staff did not appreciate Marjorie's insistent, hands-on approach to the care and treatment of her mother.
As discussed below, conflicts between Marjorie and Wilton Meadows continued after the conservator was appointed.
Marjorie testified she brought her complaints about several matters to the administration but Krotchko, the chief administrator, was not receptive or supportive; specifically, she testified he declined her requests to have her mother fed Chinese herbs and supplements through the feeding tube, or to let her treat her mother with massage, aroma or sound therapy, or to apply lotions and reiki to her mother; he ignored her requests to consult with certified specialists in alternative medicine and herbal remedies or to have an acupuncturist and sound healer treat her mother at the facility.
The most open area of dispute concerned Marjorie's efforts to treat her mother using holistic, natural, alternative medicine and her professed desire to feed her mother Chinese herbs, organic foods and supplements, through the feeding tube. Marjorie was upset when her various requests to treat Dorothy using eastern methods were refused by Wilton Meadows. Marjorie's testimony and the evidence submitted by defendant show marked differences in the perceptions of Marjorie and Wilton Meadows' staff and administration as to Marjorie's role in the care and feeding of her mother. Marjorie wanted Dorothy to continue the holistic lifestyle she had enjoyed while Marjorie was in charge of her home care. Marjorie complained that the administration obstructed her efforts to recreate Dorothy's holistic lifestyle and was not receptive to her efforts to involve in Dorothy's care alternative healthcare providers, including certified herbalist, acupuncturist and therapists, or to consult outside professionals like Dorothy's neurologist, Dr. Daryl Story, and the Norwalk Hospital nutritionist and dietician, Peter McKnight. Marjorie also complained Wilton Meadows resisted her efforts to provide reiki, massage, and sound, vision and aroma therapies to her mother. Marjorie believed that Wilton Meadows had betrayed her trust and had reneged on promises made prior to admission that her mother would be able to receive complementary care, using both eastern and western methods of care and treatment, and live a holistic lifestyle as much as possible.
Serious issues arose concerning Marjorie's role in feeding Dorothy. Concerns about Marjorie feeding Dorothy inappropriate foods began while she was still a patient at Norwalk Hospital. Marjorie wanted her mother to be fed homemade and organic alternatives to the standard formula being fed through the feeding tube. Marjorie also wanted herbs and supplements to be fed through the tube. Mr. McKnight testified he had discussions with Marjorie about her desire to feed organic and homemade foods to Dorothy, but that ultimately the decision was made to continue the standard formula and not to risk aspiration by feeding her homemade and commercial organic foods that carried greater risk of clotting and clogging the feeding tube. The hospital discharge summary included a plan which stated Dorothy " is to continue on NPO diet." Mr. McKnight testified that NPO meant " nothing by mouth." The hospital discharge instructions noted Dorothy had swallowing issues and feeding issues. Deana Skidmore, Assistant Director of Nurses at Wilton Meadows, testified that the hospital discharge plan notified Wilton Meadows that there was an issue with respect to Dorothy's feeding.
After Dorothy's discharge from the hospital, Mr. McKnight had discussions with Marjorie in which she expressed distress that Dorothy was not able to carry on a holistic, herbal, organic lifestyle at Wilton Meadows. She asked him to visit Wilton Meadows to discuss her mother's diet and nutrition, he did so but according to Mr. McKnight nothing ever came of it.
Marjorie was aware of the risk of aspiration from introducing inappropriate food and beverage to her mother. She posted a sign in Dorothy's room that read " NPO." She complained when a candy striper offered her mother apple juice. The nurses' notes, physician order sheets and dysphagia evaluation covering the period April 13, 2010 through July 27, 2010, when the conservator was appointed, indicate great concern among the staff that Marjorie was feeding her mother inappropriate foods outside the dining room. For example, there were nursing reports that Marjorie was feeding her mother cherries and strawberries and also soup, which were inappropriate foods that presented an aspiration risk and were contrary to the physician's instructions. Marjorie strenuously denied doing so in her testimony and accused the nurses making the reports of bearing a personal grudge against her. Marjorie also responded that she and her mother would practice swallowing without food or drink, misunderstood by some staff, and claimed that the speech therapist allowed her limited feeding opportunities using techniques he taught her. There also were reports that reflect concerns that Marjorie was feeding her mother Chinese herbs through the tube. For example, the nurses' notes of April 22, 2010, stated that the nurse refused to feed Dorothy herbs and supplements supplied by Marjorie; the nurse told Marjorie that a doctor must approve any herbal remedies and supplements given to Dorothy, and Marjorie responded she would give them to Dorothy herself. Once again, Marjorie denied having done so. A similar nurse's note recorded a conversation about adding soup to the feeding tube and in response to the nurse's statement you " can't do that, " the nurse records Marjorie's response as " she did not ask for my permission." Marjorie denied giving her mother soup, and stated she had only discussed the feasibility of introducing homemade and organic " blenderized" foods through the feeding tube, as she had discussed with Mr. McKnight at Norwalk Hospital. If nothing else, the back and forth between Marjorie and the staff shows continuing conflict and mutual distrust.
The Dysphagia Evaluation and the speech therapist notes appended to it track Dorothy's progress off the feeding tube, but they also archive staff concerns about Marjorie's interactions with staff and fears about her feeding inappropriate foods and liquids to her mother. The speech therapist's notes diverge from Marjorie's testimony in significant respects. The speech therapist notes of April 27, 2010, record a meeting with Marjorie " to discuss concerns regarding daughter's interaction with staff." The therapist warned Marjorie " that D. Partch was not to receive anything from her by mouth and that the [patient] was strictly NPO, " only the speech therapist would do trial feeds by mouth. On May 3, 2010, the therapist notes indicate concerns about " practice feedings" by Marjorie and the therapist followed up with a reminder of Dorothy's " NPO status and placing her mother at risk, " to which Marjorie indicated " she is not giving anything by mouth." On May 11, 2010, the speech therapist wrote a note contradicting a report that Marjorie had said Dorothy " could be fed by daughter at my advice"; he stated only the speech therapist could do so, Dorothy was " to remain NPO-not by mouth." He also referred to his prior conversation with Marjorie that " clearly indicated that daughter was not to give mother any food/liquids by mouth." By May 27, 2010, Dorothy had progressed to slow feed by mouth, but the doctor's orders were that all meals were to be in the dining room by a certified nursing assistant. This was in obvious response to staff concern Marjorie was feeding her mother outside the dining room. The feeding tube was discontinued on August 18, 2010.
The staff had other complaints about Marjorie. A nurse's note dated May 28, 2010, reported that Marjorie was found in bed with her mother. Marjorie testified she was given giving her mother a massage and reiki. A nurse's note dated May 30, 2010, reported she had put yogurt into her mother's vagina. Dorothy testified that she had applied yogurt to her mother's crotch area to treat an infection using an accepted home remedy. There were complaints in the interdisciplinary meeting notes on April 15, 2010 that Marjorie was interfering with therapy. There were also reports that Dorothy had left her mother alone outside in the sun. Marjorie countered that this report was blown out of proportion when she left her mother briefly near a door in the shade. Nursing notes also complained about Marjorie's unavailability and failure to return telephone calls. Marjorie explained she was on a respite break.
Marjorie testified she would get into her mother's bed regularly at home, in the hospital and at Wilton Meadows to provide her mother comfort and no one ever complained until a nursing supervisor at Wilton Meadows forced her to get out of the bed. Afterwards Krotchko angrily told her if she did it again he would throw them both out of Wilton Meadows.
The differences in the reports prepared by the Wilton Meadows staff and Marjorie's testimony are profound and irreconcilable. One thing is certain: by the time Wilton Meadows applied for the appointment of a conservator the staff and administration had grave concerns about Dorothy's safety around Marjorie and doubted her ability to represent Dorothy's interests. The upshot of staff concerns about Marjorie's interactions with Dorothy was that on July 26, 2010, the day before the conservator was appointed, Dr. Perlin ordered that all visits by Marjorie were to be supervised.
The nurses' notes for July 25, 2010, report a series of confrontations between Marjorie and nurses about taking her mother outside to feed her and about Marjorie feeding her mother yogurt, cherries and strawberries. The nurses record Marjorie replying " she's my mother and my property, " admitting to feeding her strawberries and professing not to care about the doctor's orders. Marjorie disputed the accuracy of these notes and observed this was shortly before the conservator was appointed and therefore could not be a reason for the application. That being so, the sometimes heated interactions between Marjorie and staff and disregard of doctor's orders would be valid reasons for the supervised visitation order by Dr. Perlin, ratified by Attorney Caputo when he was appointed conservator, the next day.
On July 27, 2010, Judge DePanfilis of the Norwalk Probate Court held a hearing on the application for appointment of an involuntary conservator of the estate and person of Dorothy. Marjorie was present but not represented by counsel. Dorothy was represented by a court-appointed attorney, Michael Rubino. Attorney Caputo was there along with Amy Lombardo and other representatives of Wilton Meadows. After making findings on the need for a conservator based on medical evidence presented through the report of Dr. Carl Abrams from an examination dated July 1, 2010, Judge DePanfilis appointed Attorney Caputo the conservator of the person and estate of Dorothy. Marjorie accused Probate Judge DePanfilis of ignoring her declarations at the hearing that she had Dorothy's durable power-of-attorney and was health care agent for her mother. Marjorie disputes the accuracy of the tape recording of the proceeding and the written transcript provided by the Norwalk Probate Court. In the tape and transcript Marjorie is recorded as identifying herself as Dorothy's " daughter and her heir." Marjorie claims that she also identified herself as holder of the durable power-of-attorney for her mother and as her health care agent. She testified she was holding the instruments in her hands as she informed the Probate Judge of her status. Marjorie believed that the tape of the proceeding, which she had obtained from the Probate Court, had been doctored to remove that portion of the hearing in which she informed the Probate Judge she had her mother's power-of-attorney and was her health care agent, which also is missing from the transcript. I have listened to the tape, which is mostly intelligible, including portions marked unintelligible in the transcript, but could discern no obvious " blips, " as asserted by Marjorie, to show missing portions of the hearing. If there was such a discussion it likely occurred after the hearing closed and Attorney Caputo had been appointed conservator. Indeed, Marjorie testified that when she said she was attorney-in-fact and health care agent for Dorothy someone on the probate court staff told her it was too late, the conservator had already been appointed. Marjorie also testified the Probate Judge told her to give the papers she had brought with her to the conservator and assured her they would " work with her." If the Court were to credit Marjorie's account of the hearing, she disclosed to the Probate Court that she was attorney-in-fact and health care agent for Dorothy and brought the Power of Attorney, Instructions and Will with her to the hearing. In which event, the Probate Court would not have been misled by information falsely reported or missing from the application, but rather the Probate Judge would have decided to appoint Attorney Caputo as conservator despite knowing about the instruments and Dorothy's stated preferences. The more likely event is that Marjorie failed to inform the Court about these matters until after the hearing had been closed and the conservator already appointed. There is no evidence that Marjorie objected to the appointment of Attorney Caputo as conservator at the hearing and no appeal was taken from the decree.
Marjorie offered no proof of Wilton Meadow involvement in the charged doctoring of the tape merely that she had a " sense" it was involved. The Court has no reason to believe either the tape or transcript was altered. There is no evidence Wilton Meadows had any involvement in the preparation of the transcript or tape produced by the Norwalk Probate Court.
Three months later, after Marjorie retained counsel, when she sought to replace Attorney Caputo as conservator of the person, she disclosed the Power of Attorney and Instructions to the Probate Court yet her application was denied and an appeal was later withdrawn.
After the hearing, Marjorie met with Attorney Caputo and Amy Lombardo and was informed that she could only visit her mother with supervision. The supervised visits became another subject of controversy which led to continuing disputes with staff, resulted in serious confrontations between staff and Marjorie and ultimately intervention by the state Ombudsman. Marjorie complained about the supervised visits, which were by appointment and of limited duration with a member of staff present. Marjorie complained she was not permitted at various times to visit her mother, and during some visits she was not permitted to touch her mother. This caused Marjorie great distress. Marjorie's complaints about the restrictions placed upon her visits with her mother went unheeded until she complained to the Ombudsman. Amy Lombardo, who supervised the visits over the first year, testified Marjorie was never prevented from visiting her mother and was unaware of any " black out" period when Marjorie was barred from visiting her mother. Based on review of the entire evidence relating to the supervised visits, I do not find the restrictions to be unreasonable or overly obtrusive under the circumstances. I do not find any calculated plan to isolate Marjorie from her mother or imposition of a " black-out period, " although it is likely there were occasions such as Christmas Eve, 2010, when Marjorie showed up unannounced at the facility but was unable to visit her mother. Wilton Meadows was dealing with a difficult situation; there was a standing order imposing supervised visitation on a resident's daughter who the administration and staff believed was a potential hazard to the resident. In addition to the incidents and concerns described above, twice, after the conservator was appointed, Marjorie attempted to remove her mother physically from Wilton Meadows without approval of the conservator or Probate Court under her authority as health care representative; the police were called and escorted Marjorie off the grounds. Supervised visits were appropriate under the circumstances and were authorized by the conservator. Later, with the intervention of the Ombudsman, the visitation restrictions were loosened.
Marjorie testified she complained to the Ombudsman approximately twenty times and made complaints to the Department of Health four times about Wilton Meadows' conduct toward her and Dorothy.
After the conservator was appointed, Marjorie's relationship with Wilton Meadow's staff and administration became even more adversarial. Witnesses described confrontations in the dining room, in the reception area and in the visitation rooms. At one point staff moved Dorothy to the second floor because they believed Marjorie had brought a van to spirit Dorothy away from the facility.
From July 27, 2010, when he was appointed, until October 17, 2013, when his replacement as conservator was appointed, Attorney Caputo acted as the conservator of Dorothy's person and estate and was responsible for all decisions relating to her care and finances. Although Marjorie argues that defendant Wilton Meadows colluded with Attorney Caputo, there is no evidence to support that accusation. Marjorie's efforts to blame Wilton Meadows for every decision and action taken by the conservator are not borne out by the evidence.
See C.G.S. § 45a-655 (duties of conservator of estate), C.G.S. § 45a-656 (duties of conservator of person). In his decision on May 9, 2013 (p. 14 & n. 22), denying Marjorie's second attempt to be named replacement conservator of Dorothy's person, Probate Judge Caruso noted that by statute, C.G.S. § 19a-580e, " a health care decision of a health care representative takes precedence over that of a conservator" in most cases absent a court order to the contrary. Judge Caruso issued such order after he disqualified Marjorie from becoming conservator of the person based on findings she interfered with her mother's treatment. There is no evidence that Marjorie ever exercised her authority as health care agent to override Attorney Caputo on health care decisions or to enforce her statutory authority. Her efforts to replace Attorney Caputo as conservator of Dorothy's person were unsuccessful.
Attorney Caputo's interim and final accountings were approved by the Probate Court without objection or appeal. Marjorie's motion to reopen and reargue his appointment as conservator, which raised many of the same arguments about the application asserted here, was denied by Probate Judge DePanfilis on March 30, 2011. An appeal was later withdrawn. Probate Judge Caruso of Fairfield took over the oversight of Dorothy's case from Probate Judge DePanfilis. Marjorie's motion to be appointed conservator of the person to replace Attorney Caputo was denied by Probate Judge Caruso by decision dated May 9, 2013. Judge Caruso in his decision found that Marjorie had not objected to the original appointment of the conservator, had not brought to the court's attention her claim that Dorothy had executed advanced directives in her favor, and had not taken an appeal. By decision dated August 15, 2016, Judge Caruso denied Marjorie's motion " to reconsider, revoke, rescind or otherwise alter essentially all the decisions made in all the decrees issued since the inception of this conservatorship." It is unclear from the evidence whether there are pending appeals, but Judge Caruso's decision indicates there may have been probate appeals pending at that time and Marjorie indicated to this Court that other litigation was pending so it is not clear whether the adverse findings were final and would be a basis for collateral estoppel in this case.
Similarly, there is no evidence to support Wilton Meadows' culpability for the various decisions made in the myriad litigation spawned by the appointment of the conservator and the disposition of Dorothy's assets. Although Wilton Meadows made the initial application for conservator, defendant is not responsible for the actions or omissions of the conservator, other parties and the courts in the various litigations plaintiff asserts caused her harm.
According to the evidence submitted at trial, Wilton Meadows successfully brought a collection suit against the conservator to recover resident fees from Dorothy's estate. These fees totaling $88,406.19 were paid by the conservator and the payments were included in the accountings approved by the probate court. There were no objections to the accountings or appeals. The mortgagee brought an action to foreclose its mortgage on the family home that may still be pending. Marjorie and her sister were evicted from the family home by the conservator. Marjorie bought a writ of audita querela after the summary process judgment entered against her, which was not successful apparently because Marjorie testified she was evicted from her family home. The Probate Court quieted title to the family home after Marjorie recorded a deed to herself using the power-of-attorney. The probate appeal from this decree was later withdrawn after remand to the Probate Court and a claim of lien by Marjorie was later released. There may have been other actions and proceedings relating to Dorothy and her estate, some of which may still be pending, but the evidence is murky as to all the litigation relating to Dorothy and their outcome or status. Except for the collateral estoppel special defense asserted by Wilton Meadows and the proceedings related to the appointment and accountings of Attorney Caputo and the failure to replace him at Marjorie's urging and the matters specifically referred to herein, the outcome and status of the other litigations are not relevant to this case.
Marjorie's own actions were responsible for much of the litigation of which she has complained. Marjorie did not quietly accept the control of the conservator over Dorothy's affairs. She transferred $12,000 out of a joint account and deposited it in her account, some or all of which was later recovered by the conservator. She filed a claim of lien on the land records seeking to recover $600,000 from the equity in the family home as the value of her home care for Dorothy from 2003-2010. She twice unsuccessfully sought to have Attorney Caputo removed as conservator and to have herself appointed conservator of Dorothy's person.
In this action Marjorie contended that Dorothy transferred a present interest in her estate to Marjorie before her stroke in 2010. Marjorie based this claim on an unwitnessed conversation she claimed to have had with Dorothy in the family home in 2005 at or about the time Dorothy executed the power-of-attorney drawn up by Dorothy's attorneys. According to Marjorie, Dorothy said " the house is yours . . . you can transfer it whenever you feel it's necessary." There are no documents or other evidence to support any transfer of a present interest in her estate by Dorothy to Marjorie. The Power of Attorney does not purport to create a present interest to Marjorie in any of Dorothy's assets. The statement allegedly made by Dorothy would not be sufficient to pass an interest in the house, let alone other assets that were not mentioned. The first time Marjorie claimed a present interest in Dorothy's assets in this action was in her original Third Revised Complaint dated December 8, 2014, filed after Judge Mary Sommers had struck all the counts of her Second Revised Complaint in part for failure to allege a direct injury to Marjorie from defendant's alleged conduct. This claim was re-alleged in the operative Third Amended Complaint dated July 29, 2016, and the Corrected Third Amended Complaint filed on August 1, 2016. Neither the original complaint dated July 25, 2012, nor the Revised Complaint dated February 25, 2013, nor the Second Revised Complaint dated March 8, 2013, alleged any present interest of Marjorie in Dorothy's assets. For the first time in December 2014, Marjorie alleged that the 2005 durable power of attorney was coupled with an interest in Dorothy's estate. Nor did Marjorie assert any present interest in her mother's estate in the various proceedings in probate court. Review of the tape and transcripts of the conservator hearing on July 27, 2010, and copies of Marjorie's Motion to Reopen and Reargue Appointment of Conservator dated March 24, 2011 (denied by Judge DePanfilis on March 30, 2011), and Judge Caruso's decision dated May 9, 2013, inter alia, denying Marjorie's application to become successor conservator of Dorothy's person, did not reveal any assertion by Marjorie of a present interest in Dorothy's estate. To the contrary, Marjorie is reported as denying an interest in the family home. Judge DePanfilis' Decree to Quiet Title dated August 31, 2011, states: " Marjorie Partch, by her attorney, represented to the Court that Marjorie Partch claimed no interest in a certain document entitled Quit Claim Deed . . . and a document entitled Claim for Lien . . . and that said documents by agreement of the parties and order of this Court would be forever discharged and released of record." In her " Motion to Reargue and Motion to be Made Party Defendant" dated August 19, 2013, filed in the foreclosure action in the Stamford Superior Court, Marjorie did not assert a present interest in the family home, but rather she argued that but for the conservatorship " she would have transferred ownership of the Property to her own name" using the Power of Attorney, and she argued that such transfer would have been upheld under the Medicaid family homestead exception. Surely if Dorothy had conveyed a present interest in her estate to Marjorie when she executed the durable Power of Attorney, Marjorie would have raised it in the various proceedings long before filing her original Third Revised Complaint on December 8, 2014 or the amended Third Revised Complaint on July 29, 2016, yet Marjorie admitted she did not do so before the Probate Court or as part of her efforts to avoid eviction and foreclosure. Marjorie did not characterize the Power of Attorney as being coupled with interest until much later when she reacted to Judge Somers' decision and filed the Third Revised Complaint originally and as amended. She testified that her mother never conveyed or transferred her assets to her and Marjorie did not purport to do so until after the conservator was appointed. Marjorie's present position that the 2005 power of attorney was coupled with an interest evolved over the years for strategic reasons related to her perceived litigation needs of the moment and simply is not credible.
Memorandum of Decision Re Defendant's Motion to Strike, dated December 31, 2013, pp. 12, 14, 22 (Sommers, J.).
In her order dated February 3, 2016, requoted in her order dated July 13, 2016, Judge Sommer made an apt observation about the pleadings in this case: " [i]t is certainly evident that the combination of overlapping motions and objections by both parties has made it all but impossible to understand the legal basis of the plaintiff's claims. It is therefore clear that the interest in justice and the need for the parties to plead their positions clearly and concisely require the plaintiff to file an amended complaint." After that initial statement, plaintiff filed two additional complaints.
The earlier complaints were signed by Marjorie's former attorney, Richard H. Raphael, Esq.; the Third Revised Complaint was signed pro se by Marjorie.
Marjorie also alleged that the look-back provision in 42 U.S.C. § 1396 would permit transfer of the family homestead to a caregiver after two years. This begs the question of whether such transfer was ever made and there is no evidence that any transfer of the homestead was made except for the quitclaim deed Marjorie made to herself that was later released during the quiet title proceeding in probate court. There is a foreclosure action pending brought by the mortgagee on Dorothy's mortgage of the Norwalk property.
This is essentially what Marjorie had attempted to do by entering into and recording the quit claim deed that she discharged and released in 2011.
Marjorie did not appear in the eviction action and did not appeal. Instead, she filed a lien claim and quitclaimed an interest to herself under authority of the power of attorney.
Marjorie testified she was concerned that conveying joint title to herself and her mother would violate the mortgage.
Marjorie blamed Wilton Meadows for physical injuries to and neglect of Dorothy both before and after the conservator was appointed. No expert testimony was offered as to whether Wilton Meadow caused such injuries or committed acts of neglect or whether defendant violated any standard of care. The evidence shows during her residence at Wilton Meadow that Dorothy's feeding tube became dislodged, that her right shoulder was dislocated, that she had signs of bruising, open sores, rashes and carcinomas. No evidence was presented as to any culpability of Wilton Meadows for such conditions or treatment relating thereto; to the contrary the evidence shows that Dorothy was hospitalized and treated by medical professionals, who were not employees of Wilton Meadows, for the various ailments identified by Marjorie as causing her distress.
This incident occurred in April 2010. Marjorie bitterly complained to Krotchko that this could only have been caused by rough handling; people at Wilton Meadows said the tube was found in Dorothy's hands. There is insufficient evidence to conclude how the tube became dislodged.
According to Marjorie, some of the treatment came after complaints to the State Health Department. Wilton Meadows denied it mistreated Dorothy and its records claim the bruising was the result of capillary fragility. There is insufficient evidence to discern the cause of any of the ailments complained about by plaintiff or culpability therefor.
The relevancy of defendant's care of Dorothy is limited to Marjorie's claims that Wilton Meadows intentionally caused her emotional distress. Marjorie is party to this action in her individual capacity only. Her motion to intervene as executor of her mother's testamentary estate was denied. Whether Dorothy or Marjorie as her executor would have had any claims against Wilton Meadows is beyond the scope of this action.
2. Conclusions of Law
A. Plaintiff Has Not Proven Defendant Was Negligent
The First Count of the Third Revised Complaint alleges that defendant was negligent in that it violated duties of care owed to plaintiff as responsible party under the resident admission agreement signed by Marjorie to admit Dorothy to the facility by filing a false application for conservator. Plaintiff alleges that as a result of such negligence a conservator was appointed in contravention of the Power of Attorney and Instructions that designated Marjorie as Dorothy's attorney-in-fact and representative, which prevented Marjorie from transferring Dorothy's assets to her name, that depleted Dorothy's estate by unwanted private pay for nursing home care, that led to her eviction from the family home and its ultimate sale for less than fair market value, and which required plaintiff to engage in constant litigation to protect her rights. Defendant has denied these allegations and alleged that the conduct complained of was by Attorney Caputo, the conservator, and not Wilton Meadows.
Defendant also raised other special defenses discussed below.
In Jarmie v. Troncale, 306 Conn. 578, 580-90, 50 A.3d 802 (2012), the Supreme Court reiterated established standards for analyzing a common-law claim of negligence:
The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Contained within the first element, duty, there are two distinct considerations . . . First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty . . . The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand . . . If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant . . .
Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result . . .
A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed . . . A further inquiry must be made, for we recognize that duty is not sacrosanct in itself . . . but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results. (Citations omitted.)
Plaintiff asserts that Wilton Meadows' duty to her relating to preparation of the conservator application is based on her status as " responsible party" who signed the resident admission agreement by which Dorothy was admitted as a resident. The Court disagrees. The relationship between a nursing home and a responsible party is narrow, contractual and basically financial depending on the specific promises made by the responsible party in the agreement. See Sturman v. Socha, 191 Conn. 1, 11, 463 A.2d 527 (1983); Meadowbrook Center, Inc. v. Buchman, 149 Conn.App. 177, 200-03, 90 A.3d 219 (2014); Sunrise Healthcare Corp. v. Azarigian, 76 Conn.App. 800, 808, 821 A.2d 835 (2003). The admissions agreement governs inter alia the responsible party's right to designate physicians and professional providers of service, the defendant's right to discharge or transfer the resident and the responsibilities of the responsible party upon discharge or transfer, the responsible party's promise " to comply with all rules and regulations established by the facility, " the choice of pharmacy, and various financial obligations. None of these provisions imposed any duty on Wilton Meadows concerning preparation or submission of the conservatorship application.
Nor did Wilton Meadows exceed its rights in demanding financial information from Marjorie or using any information provided by her to apply for the conservator. There are specific provisions in the admission agreement related to Medicare and Medicaid and disclosure of financial information relating to the resident's assets and income. " When the facility staff determines that the resident is no longer eligible for Medicare Part A, the resident/responsible party will be notified and security deposit and Room and Board will be due and payable upon this notification." The meeting between Marjorie and Amy Lombardo in June 2010 was to notify Marjorie as responsible party that Dorothy's Medicare benefits would run out in July 2010 and to ascertain any discharge or transfer plan. The admission agreement also provides for disclosure of the resident's assets and any transfer of assets to ensure the assets are available to pay costs of care and services to the defendant. " If the responsible party has control of or access to the resident's income and/or assets, the responsible party agrees that these funds shall be used for the resident's welfare, including but not limited to making prompt payments for care and services rendered to the resident in accordance with the terms of the agreement." The agreement also provides for financial disclosure regarding the resident's income and assets. " The resident and responsible party agree to complete any financial disclosure documents that are required by the facility within fifteen days of the date of the resident's admission to the facility (if not completed prior to admission) and to provide updated financial information within fifteen days of the facility's request for the same." Amy Lombardo's request for financial information relating to Dorothy's income and assets and to any transfer thereof was perfectly appropriate given Marjorie's failure to fill out the financial disclosure forms and the imminent termination of Dorothy's Medicare benefits. Wilton Meadows did not violate any duties to Marjorie by exercising its rights under the admission agreement.
Perhaps recognizing her limited relationship as responsible party, Plaintiff also asserts her status as health care representative and attorney-in-fact in an attempt to assume the mantle of her mother, the resident of the nursing home. However, just because one is authorized to act for a resident, does not mean the nursing home has a legal duty to a third-party agent commensurate to its direct and primary relationship with its resident. Compare, Kindred Nursing Centers East, LLC v. Morin, 125 Conn.App. 165, 173, 7 A.3d 919 (2010) (attorney-in-fact had no duty to assist nursing home to obtain Medicaid benefits for resident). As an attorney-in-fact, unlike her role as responsible party, Marjorie did not have a direct relationship with Wilton Meadows but was acting as Dorothy's agent when she bound Dorothy to the agreement. See Sunrise, 76 Conn.App. at 812-13. Similarly, her status as health care representative is derivative of the nursing home's relationship with her mother and is not a direct relationship. Any claim for disregard of her instructions or authority as Dorothy's agent would not give rise to a direct claim by Marjorie against Wilton Meadows but a claim by Dorothy that the home is not following the resident's directive. Similarly, the assets at issue were Dorothy's assets, not plaintiff's assets.
Plaintiff constantly conflates her interests and those of her mother. The alleged interference with her ability to act as her mother's agent would be a wrong to Dorothy, as principal, and not to Marjorie as agent.
The assets subject to the conservatorship were Dorothy's assets. As Dorothy's sole heir and beneficiary under the Will, Marjorie had a mere expectancy, not a present interest in the assets. See Krause v. Krause, 174 Conn. 361, 365, 387 A.2d 548 (1978). The Power of Attorney was only a contract of agency, see Long v. Schull, 184 Conn. 252, 256, 439 A.2d 975 (1981) and Bank of Montreal v. Gallo, 3 Conn.App. 268, 273, 487 A.2d 1101 (1985), it did not create any present interest of Marjorie in Dorothy's assets, just the power to control the assets. A power coupled with interest must " be an interest in the thing itself, and not merely the execution of the power." Mansfield v. Mansfield, 6 Conn. 559, 562-63 (1827). The conversation between Dorothy and Marjorie about transfer of the realty would fail to convey an interest in the real estate under our conveyancing statute, C.G.S. § 47-5, which requires a transfer by deed and other formalities, see Cavanaugh v. Richichi, 100 Conn.App. 466, 469, 918 A.2d 290 (2007); an oral agreement to convey land also could not be enforced under the statute of frauds, C.G.S. § 52-550(a). The Medicaid safe harbor provision in 42 U.S.C. § 1396p(c)(2)(A)(iv) facilitates the transfer of a homestead to a resident's son or daughter caregiver of a nursing home resident trying to spend down assets to qualify for Medicaid, but it creates no interest therein. In any event, there is a dearth of evidence about any effort by Dorothy or Marjorie to pursue the caretaker exception and transfer the realty to spend down assets to qualify Dorothy for Medicaid before July 27, 2010. Dorothy's application for Medicaid occurred during the conservatorship after Marjorie no longer had unilateral authority to transfer Dorothy's homestead to herself, as Marjorie recognized when she agreed to release the quitclaim deed to herself she recorded in the land records and acquiesce to the Probate Court's decree quieting title in favor of Dorothy.
Plaintiff has not proven any other basis for imposing a duty on defendant relating to the preparation and submission of the conservatorship application. There is a strong public policy in favor of applying for involuntary conservatorship in appropriate cases. See C.G.S. § 45a-650. Nor has plaintiff shown unreasonable conduct by Wilton Meadows in applying for appointment of a conservator. Plaintiff has failed to prove Wilton Meadows was negligent.
B. Plaintiff Has Not Proven Intentional Misrepresentation by Defendant
In the Second Count plaintiff alleges that defendant intentionally misrepresented the following facts: 1.) " that Wilton Meadows required that Plaintiff demonstrate the ability to pay, in order for the Patient to stay for the [additional] month, and that as part of this determination process, Wilton Meadows required information on the entire family's finances"; 2.) that Wilton Meadows misrepresented its intentions and that the real reason it wanted the family financial information was to discover whether Dorothy still owned the assets and to ascertain they had not been transferred to Marjorie. Plaintiff alleges in reliance on these representations she disclosed to defendant family financial information and that the assets remained in Dorothy's name and had not been transferred to Marjorie. Plaintiff also alleges in reliance she did not transfer the assets into her name using the authority of the Power of Attorney. Plaintiff alleges she was harmed by the alleged intentional misrepresentations by interference with her close relationship to her mother, loss of residence and personal property through the conservator's actions, interference with her interest in her mother's assets, prolonged and unnecessary litigation in the foreclosure case on her homestead and other unidentified financial losses, emotional distress and damages. As above, defendant denies the allegations and alleges Wilton Meadows is not responsible for Attorney Caputo's actions as conservator.
Plaintiff has not proven its allegations that Wilton Meadows made misrepresentations on which she relied to her detriment. The application was not false and neither plaintiff nor the Probate Court relied on representations therein. Nor did Amy Lombardo misrepresent the reasons why plaintiff was required to provide information about Dorothy's finances. To the extent plaintiff provided financial information about Dorothy's assets she did not do so in reliance to any representation by Amy Lombardo but because she was obligated to provide such information under the admission agreement she signed two months before at or about the date when Dorothy was admitted.
Marjorie as responsible party signatory of the admission agreement had an obligation to disclose to Wilton Meadows " true, correct and complete" information about " the resident's income and assets, " as well information relating to eligibility for Medicaid, including asset transfers to the responsible party: " if the responsible party has received a transfer of assets from the resident that results in the resident's ineligibility for Medicaid assistance, the responsible party agrees that these assets . . . will be used to pay for the cost of care and services rendered to the resident . . ." To the extent Marjorie disclosed information about Dorothy's assets and income, and they remained in Dorothy's name and were not transferred to her, Marjorie has not proven that the representations as to the reasons for requesting the information were false or that her reliance on such representations caused her harm. Wilton Meadows had a right to request the information for the reasons stated above and Marjorie had an obligation to provide the information requested about Dorothy's assets, income and any transfers pursuant to the admission agreement. There is no evidence Marjorie disclosed any information about her own assets, only the current state of Dorothy's assets. As the responsible person under the admissions agreement, Marjorie had a contractual obligation to use Dorothy's assets subject to Marjorie's control to pay for Dorothy's welfare, including nursing home care. See Sunrise, 76 Conn.App. at 811. Therefore, plaintiff was not harmed by the financial disclosures or to the extent that Wilton Meadows received payments by the conservator from Dorothy's assets.
Plaintiff has failed to prove any element of her intentional misrepresentation claim against Wilton Meadows. See Sturm v. Harb Development, 298 Conn. 124, 142, 2 A.3d 859 (2010).
C. Plaintiff Has Not Proven Negligent Misrepresentation by Defendant
Count Three realleges the same facts as alleged in Count Two and recasts them as a claim for negligent misrepresentation. For the same reasons, plaintiff has failed to prove negligent misrepresentation by defendant.
Guided by the principles articulated in § 552 of Restatement (Second) of Torts, this court " has long recognized liability for negligent misrepresentation." . . . " We have held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result."
Here, the alleged representations made were to the Probate Court in the application for conservator not to plaintiff, who was not privy to the application and could not be held to have relied on the representations or suffered any harm based on reliance on representations in the application. Also plaintiff was not able to prove defendant knew or should have known the representations were false or had any duty to plaintiff to ascertain the truth. Wilton Meadows was entitled to respond " unknown" to questions where plaintiff had not provided it with copies of the instruments. Given plaintiff's failure to cooperate in the submission of the full admission package when Dorothy was admitted, as Amy Lombardo testified, I find it credible that Wilton Meadows had not been given copies of the Power of Attorney and Instructions as of the date the application was being prepared. Moreover, although the statement about the health care agent was untrue, plaintiff has failed to prove Wilton Meadows knew or should have known it was false. Plaintiff had failed to provide defendant with a copy of the Instructions until after the application was submitted. Although " unknown" would have been a more appropriate response under the circumstances, simply because Marjorie may have been claiming she had a " proxy" and was health care agent does not prove Wilton Meadows knew or should have known that fact, particularly given that Marjorie had signed the admissions agreement as attorney in fact under authority of the Power of Attorney, not as health care agent under the Instructions. As to the only representation in the application that was false, that Dorothy had not designated a health care agent, plaintiff cannot prove reliance thereon. Marjorie knew the statement was false yet either she failed to inform the Probate Court of her status as health care agent at the hearing, as the transcript and tape report, or she did inform the Probate Judge and he disregarded her status, as she testified. There is no evidence plaintiff or the Probate Court relied on any representations in the application. Plaintiff cannot establish pecuniary damage to her from the alleged misrepresentation. Plaintiff's alleged damages occurred after the appointment of the conservator based on his actions, not on those of defendant. Any loss she claims to have suffered from the conservator's actions from his initial appointment is too attenuated to be recoverable from Wilton Meadows. Although defendant was responsible for initiating the hearing to appoint the conservator, Wilton Meadows is not responsible for the conservator's acts during the conservatorship.
The only reference in the admission agreement to Marjorie's status as health care agent was in the contact information on the last page where she described herself as " POA/PROXY."
D. Plaintiff Has Not Proven a CUTPA Violation by Defendant
The Fourth Count purports to allege violation of the Connecticut Unfair Trade Practices Act, C.G.S. § 42-110a et seq. (" CUTPA"). Plaintiff accuses defendant of " unscrupulous, immoral and deceptive acts in filing the conservator application, " which plaintiff alleges was " unwarranted and false." In addition to the damages alleged in the prior counts, plaintiff alleged she suffered ascertainable loss when the conservator seized a joint bank account she had with her mother.
In Gaynor v. Hi-Tech Homes, 149 Conn.App. 267, 275-76, 89 A.3d 373 (2014), the Appellate Court reviewed the principles for alleging a CUTPA claim:
" CUTPA provides in relevant part 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. General Statutes § 42-110b(a). Connecticut courts, when determining whether a practice violates CUTPA, will consider (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise-whether, 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 (or competitors or other businessmen) . . . 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 . . . Whether a practice is unfair and thus violates CUTPA is an issue of fact . . . The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court . . . Additionally, our Supreme Court has stated that [a]ll 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." . . .
" [N]ot every contractual breach rises to the level of a CUTPA violation" . . . " Not every misrepresentation rises to [the] level of [a] CUTPA violation." . . ." There must be some nexus with a public interest, some violation of a concept of what is fair, some immoral, unethical, oppressive or unscrupulous business practice or some practice that offends public policy." . . . " In the absence of allegations arising to such a level of conduct, the plaintiffs have failed to properly plead a cause of action under CUTPA." (Citations omitted.)
As noted above, plaintiff has failed to prove any misrepresentation or breach of contract by defendant. Under the facts proven at trial the application was not " unwarranted and false, " as plaintiff asserts. The application was substantially true and left it to the Probate Court to determine whether a conservator was needed. There is no evidence that the Probate Court was misled by anything in the Application, which is not even mentioned in the transcript or audio tape of the hearing.
Wilton Meadows had a statutory right to seek appointment of a conservator for Dorothy under C.G.S. § 45a-648(a). Serious disputes existed between Marjorie and Wilton Meadows as to Dorothy's care and treatment that called out for the intervention of a conservator of her person to take the lead in dealing with health and safety issues and a conservator of her estate to deal with financial issues. With her Medicare benefits expiring Wilton Meadows had a legitimate interest in having a conservator of her estate to protect her assets and implement a plan to conserve her assets and possibly spend down to secure Medicaid benefits. Wilton Meadow's conduct in applying for a conservator was neither unfair nor deceptive and benefitted Dorothy by assured continuance of nursing care. The seizure of the joint account was done by the conservator, not by Wilton Meadows. The proceeds were placed into the conservatorship account, not defendant's account, and the Probate Court approved the conservator's accountings, including all payments to defendant, without objection or appeal from plaintiff.
Marjorie never appealed the probate decrees on the accountings which approved the conservator's payments to Wilton Meadows in the exercise of its jurisdiction under C.G.S. § 45a-175(a). She is precluded from challenging the accounting decrees which are final judgments. See Davis v. Davis-Henriques, 163 Conn.App. 301, 308-09, 135 A.3d 1247 (2016).
Plaintiff has failed to prove any deceptive or unfair conduct by Wilton Meadows, and has failed to prove ascertainable loss from defendant's conduct.
Defendant is in the nursing home business and was seeking a conservator, in part, to protect its fees so the trade and commerce element was satisfied. There was insufficient evidence in the record to support defendant's argument that the alleged acts were only incidental to its primary business. Compare, Schiavone v. Irvine, 2013 WL 1189417 *6 (Conn. Super. 2013) (Radcliffe, J.).
E. Plaintiff Has Not Proven Intentional Infliction of Emotional Distress
The Fifth Count purports to allege a claim for intentional infliction of emotional distress based on the conduct previously alleged that is incorporated into this count, which plaintiff characterized as " extreme and outrageous, 'surpassing all bounds of decency.' " In addition, plaintiff asserts that as a witness to her mother's pain and suffering and physical maladies and injuries caused by defendant's " abuse, " and by her " forced separation" from her mother, Wilton Meadows intentionally inflicted severe emotional distress on plaintiff.
The Third Revised Complaint also alludes to distress caused by plaintiff's concern over her sister's loss of financial security and residence. As noted above, the conduct that resulted in financial loss to Dorothy's estate and the eviction from and foreclosure of the family home were by the conservator and mortgagee, respectively, and not by Wilton Meadows.
In Marsala v. Yale University Hospital, 166 Conn.App. 432, 451-52, 142 A.3d 316 (2016), the Appellate Court concluded that allegations of direct intentional infliction of emotional distress by family members of a patient whose life support was terminated by the hospital were actually claims of bystander distress:
" In order for the plaintiff to prevail in a case for liability . . . [alleging intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 526-27, 43 A.3d 69 (2012). By contrast, to recover in a case for bystander emotional distress, a plaintiff must establish that he or she is closely related to the injured victim, had contemporaneous sensory perception of the injuring event or immediate observation of its consequences, that the injured party suffered substantial injury, and that the recovering party suffered serious emotional distress beyond that anticipated from a disinterested observer and which is itself not abnormal. Clohessy v. Bachelor, [ supra, 237 Conn. at 56] . . .
Reasoned jurisprudence instructs that when a defendant's extreme and outrageous conduct is directed toward a third party, but is specifically intended to or recklessly causes the plaintiff emotional distress, the plaintiff may, if other elements are also satisfied, have a claim for bystander (indirect) intentional infliction of emotional distress. See Clohessy v. Bachelor, supra, 237 Conn. at 56, 675 A.2d 852. The Restatement (Third) of Torts states that " [w]hen an actor's extreme and outrageous conduct causes harm to a third person, as, for example, when a murderer kills a husband in the presence of his wife, the actor may know that the murder is substantially certain to cause severe emotional harm to the witnessing spouse. The murderer acts at least recklessly with regard to that risk." 2 Restatement (Third), Torts, Liability for Physical and Emotional Harm § 46, comment (m), p. 147 (2010). Additionally, mirroring the limitations placed on bystander claims for emotional distress in Clohessy, the Restatement (Third) further suggests that recovery for bystander emotional harm be limited to bystanders " who are close family members and who contemporaneously perceive the event." Id., comment (m), p. 148; see Clohessy v. Bachelor, supra, 237 Conn. at 56 . . .
Here, plaintiff has combined claims of intentional infliction of emotional distress and bystander distress in the same count. The claims based on allegations defendant sought to deprive her of assets, residence and a relationship with her mother would all constitute allegations purporting to allege intentional infliction of emotional distress because they allege purposeful activity directed at her. On the other hand, the claims based on her observation of her mother's condition are bystander emotional distress claims and not direct claims because the conduct alleged is not directed at her, although the emotional harm alleged is the intended or reckless result of mistreatment of another close to plaintiff.
The Supreme Court has cautioned that courts should exercise " restraint when presented with opportunities to extend the duty of health care providers to persons who are not their patients." Jarmie v. Troncale, 306 Conn. 578, 592, 50 A.3d 802 (2012). Compare, Costello v. Yale New Haven, 161 Conn.App. 600, 128 A.3d 607 (2015) (no emotional distress claim against hospital by family members for loss of patient's personal property).
The plaintiff has failed to present evidence Wilton Meadow intentionally or recklessly caused her emotional distress. See Stancuna v. Schaffer, 122 Conn.App. 484, 492, 998 A.2d 1221 (2010). Plaintiff has also failed to present any evidence of extreme or outrageous conduct. See Perez-Dickson, 304 Conn. at 527. Nor is there any proof that defendant's alleged misconduct caused plaintiff emotional distress or that such distress was severe. See Gillians v. Vivanco-Small, 128 Conn.App. 207, 211-12, 15 A.3d 1200 (2011).
As found above, it was reasonable for defendant to apply for appointment of a conservator and, after the conservator was appointed, it was reasonable for Wilton Meadows to follow Attorney Caputo's instructions, including supervised visitation of Marjorie's visits to Dorothy. This conduct was not tortious and well within Wilton Meadows' rights to protect its self-interests and to protect the health, safety and welfare of its resident, Dorothy. Most of the events that plaintiff testified were distressful, i.e. the eviction, the foreclosure, the probate litigation, were not based on conduct of defendant but of others including the conservator and the mortgagee of her family home. Even as to those matters related to physician orders from Drs. Radin and Perlin with which Marjorie disagreed, they were not employees of Wilton Meadows. Nor did plaintiff present any evidence of severe distress other than her own testimony and anecdotal evidence of her distress from plaintiff's friends and acquaintances; that testimony often attributed plaintiff's distress to her helplessness and frustration concerning mother's illness and fragility, plaintiff's precarious financing, and her thwarted desire to oversee her mother's treatment, diet and lifestyle.
The remainder of plaintiff's emotional distress claims concern defendant's treatment and care of her mother, and are really bystander emotional distress claims. Plaintiff does qualify as a close relation who had reasonably contemporary observation of her mother's physical ills. However, plaintiff has failed to prove that the injuries, bruising, sores and carcinomas she observed were caused by Wilton Meadows, let alone that defendant intended or recklessly inflicted emotional distress on plaintiff. As noted above, plaintiff did not present any expert testimony to establish that Wilton Meadows violated any standards of care or caused the injuries or afflictions observed by plaintiff.
Plaintiff's claim that Wilton Meadows interfered with her close relationship with her mother sounds suspiciously like a loss of parental consortium claim which is not recognized for adult children. See Campos v. Coleman, 319 Conn. 36, 58, 123 A.3d 854 (2015). As for plaintiff's constitutional claims, Wilton Meadows has not been shown to be a state actor subject to due process constraints.
The same reasons plaintiff failed to prove a direct intentional or reckless infliction of emotional distress claim also apply to preclude her bystander claim. Plaintiff's distress was diffuse and caused by many other unrelated stresses and frustrations undifferentiated from any injuries or physical condition of Dorothy she observed for which she blamed Wilton Meadows. The Court credits the testimony that Wilton Meadows was not responsible for the various ailments and injuries that caused plaintiff distress, including the dislodgment of the feeding tube and shoulder dislocation. Plaintiff did not prove those injuries resulted from abuse by defendant. The Court credits the testimony of plaintiff and other witnesses that she felt overwhelmed and was deeply distressed by her mother's circumstances, but plaintiff has not proven her distress was intentionally or recklessly caused by defendant.
F. Special Defenses
Defendant alleged fifteen special defenses. The Fourth, Fifth and Sixth Special Defenses alleged that plaintiff's claims concerned conduct by the conservator, not Wilton Meadows are addressed above. The Probate Court did approve the accountings of Attorney Caputo. Plaintiff neither objected to nor appealed the decrees approving the accountings and therefore is estopped to complain about the conservator's payments to Wilton Meadows as alleged in the Ninth and Tenth Special Defenses. See Davis, 163 Conn.App. at 308-09.
The lack of standing asserted in the Third Special Defense was not proven, primarily because any claims that belonged to Dorothy, which could have been alleged by Marjorie as her executrix, were not deemed part of this action and her motion to intervene as executrix was denied on the eve of trial. Therefore, the only claims adjudicated concerned Marjorie's personal claims, which she had standing to raise.
As for the collateral estoppel defenses alleged in the Seventh and Eighth Special Defenses relating to plaintiff's interest in the family home, the evidence disclosed that the Probate Court quieted title in favor of Dorothy and discharged and released Marjorie's lien and deed to herself that had been filed in the land records. Plaintiff agreed to this decree, informed the court she had no interest in the property and failed to appeal from the final decree. Plaintiff is collaterally estopped from re-litigating her continuing right, title and interest in said property. See Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988).
Plaintiff did not appear and defend the summary process action, which would not preclude her from asserting an interest in and title to the property because the limited scope of that proceeding would not fully and fairly adjudicate those claims. See Virgo, 209 Conn. at 501.
The Ninth Special Defense alleges collateral estoppel related to the initial appointment of Attorney Caputo as conservator. The record discloses that plaintiff did not object to his initial appointment and the decree appointing him was never appealed. Plaintiff also did not pursue her appeal of the Probate Court decree denying her application to reopen and reargue the conservator's appointment so the decree became final upon withdrawal of the appeal. Plaintiff is estopped to challenge the bona fides of the conservator's appointment. See Davis, 163 Conn.App. at 308-09. She is not estopped, however, to claim Wilton Meadows misled the Probate Court by any false statement in the application because those arguments, albeit raised in the Probate Court, were not fully and fairly litigated in that limited proceeding. Nor can plaintiff be held to have waived her right to pursue claims against Wilton Meadows in this action.
The Twelfth, Thirteenth, Fourteenth and Fifteenth Special Defenses were not proven by the facts alleged. Although there was evidence of the facts alleged, as a matter of law the evidence does not support the defenses alleged.
Failure to mitigate damages.
Unclean hands.
Comparative negligence.
Estoppel.
The First Special Defense that the applicable statute of limitations expired on plaintiff's negligence claims under C.G.S. § 52-584, the tort claims under C.G.S. § 52-577 and the CUTPA claim under C.G.S. § 42-110g, requires comparison of the Third Revised Complaint to earlier complaints filed within the statutes of limitation to determine whether the claims relate back to the timely pleadings. See Austin-Casares v. Safeco Ins. Co., 310 Conn. 640, 656-57, 81 A.3d 200 (2013).
Under the relation back doctrine, " a party properly may amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same . . . If a new cause of action is alleged in an amended complaint . . . it will [speak] as of the date when it was filed . . . A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but [when] an entirely new and different factual situation is presented, a new and different cause of action is stated . . . DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 140, 998 A.2d 730 (2010).
" We have previously recognized that our relation back doctrine is akin to rule 15(c) of the Federal Rules of Civil Procedure, which provides in [relevant] part . . . [that] [w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading . . . The policy behind rule 15(c) is that a party, once notified of litigation based [on] a particular transaction or occurrence, has been provided with all the notice that statutes of [limitation] are intended to afford." . . . Sherman v. Ronco, 294 Conn. 548, 555-56, 985 A.2d 1042 (2010). " If a party seeks to add new allegations to a complaint and a statute of limitations applicable to those allegations has run since the filing of the complaint, the party must successfully invoke the relation back doctrine before amendment will be permitted." New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 483 n.38, 970 A.2d 592 (2009).
" Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . ." . . . Id. " [I]n the cases in which we have determined that an amendment does not relate back to an earlier pleading, the amendment presented different issues or depended on different factual circumstances rather than merely amplifying or expanding [on] previous allegations." Grenier v. Commissioner of Transportation, 306 Conn. 523, 560, 51 A.3d 367 (2012).Austin-Casares, 310 Conn. at 656-57.
In applying the relation-back test the pleadings are construed " broadly and realistically, rather than narrowly and technically." See DiMiceli v. Town of Cheshire, 162 Conn.App. 216, 232-33, 131 A.3d 771 (2016).
" 'Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . . To relate back to an earlier complaint, the amendment must arise from a single group of facts . . . In determining whether an amendment relates back to an earlier pleading, we construe pleadings broadly and realistically, rather than narrowly and technically . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties . . . Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension . . . Finally, in the cases in which [our Supreme Court has] determined that an amendment does not relate back to an earlier pleading, the amendment presented different issues or depended on different factual circumstances rather than merely amplifying or expanding upon previous allegations.' . . . J. Wm. Foley, Inc. v. United Illuminating Co., 158 Conn.App. 27, 63-64, 118 A.3d 573 (2015)." DiMiceli, 162 Conn.App. at 232-33.
The negligence claim in the First Count was raised in the original complaint dated July 25, 2012 served on July 27, 2012, within two years of the July 27, 2010 conservator hearing and thus was timely under C.G.S. § 52-584. The crux of the negligence claim was not changed in the Third Revised Complaint which concerns Wilton Meadows' failure to identify Marjorie as Dorothy's attorney-in-fact under the Power of Attorney and health care agent and designated conservator pursuant to the Instructions and alleges that the appointment of the conservator meant loss of control over her mother's estate and person and resulting financial loss to plaintiff. To respond to Judge Sommer's memorandum of decision dated December 31, 2013, striking her second revised complaint, plaintiff added allegations of duties owed to her by defendant, including extensive allegations about duties owed her as responsible party under the admission agreement, but the basic allegations remained the same. The additional facts amplified and expanded upon what had been alleged; the cause of action remained the same as the one of which defendant had notice since July 27, 2012. The negligence count is not barred by C.G.S. § 52-584.
C.G.S. § 52-584 provides, in pertinent part: " [n]o action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
The Second Count of the Third Revised Complaint alleged intentional misrepresentation based on two separate incidents, the conversation between Amy Lombardo and plaintiff inquiring about finances in June 2010 and the application for appointment of the conservator that culminated in his appointment on July 27, 2010. The Third Revised Complaint was filed on July 29, 2016 in compliance with Judge Sommer's order dated July 13, 2016. This was six years and two days after the July 27, 2010, hearing and six years and approximately a month after the financial inquiries. The upshot of the convoluted procedural history of this case is that the Third Revised Complaint was filed over three years after the three-year statute of limitations in C.G.S. § 52-577 had expired. The Second Revised Complaint that had been stricken was filed on March 8, 2013, within three years of the hearing. The Third Revised Complaint restates allegations about the errors in the application, but adds factual allegations about defendant's misrepresentations to plaintiff in order to induce her to provide information about her family finances that were not included in the Second Revised Complaint. Thus the new theory of liability in the allegations in the Third Revised Complaint would not relate back and is barred by the statute. The Second Count is not barred by the applicable statute of limitations, C.G.S. § 52-577, as it relates back to allegations about errors in the application, but it is barred as to the alleged misrepresentations by Amy Lombardo in June 2010.
The allegations are substantially the same as the putative Third Revised Complaint plaintiff filed on December 8, 2014, four years four months and eleven days after the appointment of the conservator and four years and nearly six months after the June 2010 conversation. As Judge Sommer explained in her order that complaint was filed while the case was on appeal and could not be considered by the trial court because the trial court had no authority to set a scheduling order and plaintiff had no right to replead until the appeal was dismissed. The original Third Revised Complaint filed on December 8, 2014, disclosed this theory of liability. Although technically it did not become the operative complaint, it was not a nullity, and arguably would be sufficient to place defendant on notice of this theory of liability and thus satisfy the fair notice policies underlying the relation-back test. See Austin-Casaras, 310 Conn. at 657. However, this complaint was not timely under C.G.S. § 52-577.
Another corrected complaint was filed on August 1, 2016.
C.G.S. § 52-577 provides: " No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
[Editor's Note: The text for this footnote #47 was omitted in the original opinion and has not been made available.]
The Third Count alleges negligent misrepresentation. In addition to the allegations of negligent representations in the conservatorship application, which was alleged in the original complaint, plaintiff added a new theory of liability that defendant made misrepresentations to her to induce her to provide financial information about her family's assets. Plaintiff also made material changes relating to damages including interference with plaintiff's interest in her mother's estate that was not alleged in the timely complaint. The new theory of liability and damages in the Third Count do not relate back and are barred by the applicable statute of limitations, C.G.S. § 52-584.
The Fourth Count alleges violation of CUTPA, C.G.S. § 42-110b, based on the filing of the conservatorship application with misrepresentations therein about plaintiff's designation as Dorothy's attorney-in-fact under the Power of Attorney and her health care agency and status as putative conservator under the Instruments. The same allegations were made in the original complaint dated July 25, 2012, the revised complaint dated February 25, 2013, and the second revised complaint dated March 8, 2013, so they relate back. The Fourth Count is timely under C.G.S. § 42-110g(f), except as to the claim related to the June 2010 financial inquiry which had not been alleged in prior complaints within the limitations period and are barred.
C.G.S. § 42-110g provides: " (f) [a]n action under this section may not be brought more than three years after the occurrence of a violation of this chapter."
The Fifth Count alleges intentional infliction of emotional distress, which is governed by C.G.S. § 52-577. There are material differences between the allegations in the Second Revised Complaint dated February 25, 2013, and the Third Revised Complaint dated July 29, 2016, both as to the misrepresentations to plaintiff and other conduct alleged and the damages claimed. Plaintiff's new theory of liability added claims of direct infliction of emotional distress and bystander claims based on plaintiff's observation of her mother's condition and treatment. These new allegations would not relate back to the Second Amended Complaint, but they are alleged in the original Third Amended Complaint filed on December 8, 2014, and carried over into the operative complaint. Unlike the claims rooted in the July 27, 2010 hearing and June 2010 conversation, many of these new claims refer to a course of conduct that allegedly continued during Dorothy's residence at Wilton Meadows, which did not end until she moved to another nursing home on April 22, 2013. The Fifth Count is not barred by C.G.S. § 52-577, except as to the allegations relating to the June 2010 financial inquiries which do not allege a continuing course of conduct and are barred.
The plaintiff complained about continuing alleged abuse that she argued manifested at various times in sores, rashes, carcinomas she observed on Dorothy's skin. Defendant did not highlight the dates of these manifestations in seeking to prove its limitations defense by demonstrating the alleged conduct fell outside the limitations period. Defendant failed to meet its burden of proof. Certainly, the dislodging of the feeding tube and dislocated shoulder were discrete events that defendant could have proven fell outside the limitations period. However, given the nature of the allegations and the ambiguity of proof as to timing, the Court addressed this claim on its merits and found no evidence of abuse.
Conclusion
For the reasons stated above, the Court finds in favor of defendant Wilton Meadows and against plaintiff Marjorie Partch on all counts alleged in her complaint. Judgment shall enter for defendant.