Poremba v. Yale New Haven Hospital

Full title: DEBORAH POREMBA, ADMX. OF THE ESTATE OF DANIEL LISI v. YALE NEW HAVEN…

Court: Connecticut Superior Court Judicial District of Waterbury at Waterbury

Date published: Mar 13, 2006

2006 Ct. Sup. 4986 (Conn. Super. Ct. 2006)

Opinion

No. CV03-0177177S

March 13, 2006

MEMORANDUM OF DECISION RE MOTION TO STRIKE

ELIZABETH A. GALLAGHER, JUDGE.

This is an action against a physician brought by the administrator of the estate of a person who died allegedly as a result of a surgical procedure performed by the physician. The three counts of the complaint are labeled informed consent (first count), battery (second count), and assault (third count). The defendant moves to strike the second and third counts of the complaint on the grounds that the counts are legally insufficient. The defendant also moves to strike the plaintiff's claim for punitive damages on the grounds that there is no factual basis to support the claim within the four corners of the complaint.

"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. . . . Thus, [the court] assumes the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly, rather than narrowly . . . In this regard, [Connecticut Appellate courts] long have eschewed the notion that pleadings should be read in a hypertechnical manner. Rather, [t]he modern trend, which is followed in Connecticut, is to 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. (Internal citations omitted; internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173-74, 851 A.2d 1113 (2004).

The defendant argues that the plaintiff has failed to allege an absence of consent which is necessary for an action in battery or assault. "[A] patient who has undergone a procedure without any consent has a claim based, in essence, on civil assault and battery. Godwin v. Danbury Eye Physicians Surgeons, P.C., 254 Conn. 131, 136-37, 757 A.2d 516 (2000). "In [ Logan v. Greenwich Hospital Ass'n., supra, 191 Conn. 289, our Supreme Court] established that a patient can recover for assault and battery when the physician (1) fails to obtain any consent to the particular treatment, (2) performs a different procedure from the one for which consent has been given, or (3) realizes that the patient does not understand what the procedure entails." Godwin v. Danbury Eye Physicians Surgeons, P.C., supra, 137. Duffy v. Flagg, 88 Conn.App. 484, 495, fn.6, 869 A.2d 1270 (2005).

The second count of the revised complaint (battery) contains an allegation that the defendant failed to obtain consent to the particular procedure performed on the plaintiff¹ and another allegation that the defendant realized that the patient did not understand what the procedure entails. The third count (assault) contains the same allegations. The defendant correctly points out that the plaintiff alleges in these counts a lack of informed consent. In paragraph 9 of both counts (incorporated by reference to the first count), the plaintiff alleges that the defendant removed the deviate portion of the plaintiff's septal cartilage and septal bone without the plaintiff's informed consent." In paragraph 12 of the second count and paragraph 13 of the third count, the plaintiff alleges that "the plaintiff was caused to undergo surgery, surgical scarring, brain damage, pain and suffering and medical procedures without Plaintiff's informed consent."

1 Although the complaint refers to the "plaintiff" Daniel Lisi, it should be pointed out that the plaintiff is the administrator of the estate of Daniel Lisi. Daniel Lisi is the plaintiff's decedent.

The second and third counts allege "lack of informed consent." They also contain allegations that the defendant "failed to obtain consent to the particular treatment" and "realized that the patient did not understand what the procedure entails." Clearly, the plaintiff has improperly combined different theories of liability in these counts. The appropriate first response to this complaint was a request to revise.² "The pleading rules applicable to the [defendant's] motion are those supplied . . . by the Connecticut Practice Book. Under those provisions, if the [defendant] had desired [to obtain a separation of causes of action which may be united in one complaint when they are improperly combined in one count], it could have filed a request to revise. [When] no such request has been filed . . . the court construes the allegations of the complaint in the manner most favorable to the pleader . . ." (Citations omitted.) Connecticut State Medical Soc. v. Oxford Health Plans, 272 Conn. 469, 473, 863 A.2d 645 (2005).

2 Sec. 10-35. Request to Revise

Whenever any party desires to obtain (1) a more complete or particular statement of the allegations of an adverse party's pleading, or (2) the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party's pleading, or (3) separation of causes of action which may be united in one complaint when they are improperly combined in one count, or the separation of two or more grounds of defense improperly combined in one defense, or (4) any other appropriate correction in an adverse party's pleading, the party desiring any such amendment in an adverse party's pleading may file a timely request to revise that pleading.

Construing the allegations of the second and third counts in a manner most favorable to the plaintiff, the court finds that a motion to strike is properly granted because the second and third counts raise internally inconsistent theories of liability which make the counts legally insufficient to state a single cause of action.³ As the court stated in Broadnax v. New Haven, supra, a pleading "must not be contorted in such a way so as to strain the bounds of rational comprehension."

3 Sec. 10-39. Motion to Strike

(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint, or (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because the absence of any necessary party or, pursuant to Section 17-56(b), the failure to join or give notice to any interested person, or (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts, or (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.

The defendant's motion to strike the second and third counts of the complaint and the plaintiff's claim for punitive damages as to the third count is granted.