Opinion
ANNCV165011631
08-30-2016
Stephen M. Ceslik, Jr. v. Connecticut Hospice, Inc. et al
UNPUBLISHED OPINION
CORRECTED MEMORANDUM OF DECISION
Theodore R. Tyma, J.
The plaintiff, in his individual capacity, brings this action against Yale New Haven Hospital, Hari Desphande and Alyssa French (collectively YNHH defendants), Connecticut Hospice, Inc., Mary Ann Fieffer, APRN, Joseph Andrews, M.D. and Fred Flatow, M.D. (collectively Hospice defendants), Karen Ceslik (Ceslik), and John Carangelo (Carangelo), relating to the death of Stephen M. Ceslik, III (decedent) on January 30, 2013 at 47 years of age. The plaintiff and Ceslik were the parents of the decedent.
The plaintiff's amended complaint, dated April 6, 2016, consists of 123 separately numbered paragraphs. The allegations are not separated into causes of action or counts. Given how the plaintiff has structured his complaint, the court is compelled to construe the allegations to identify the causes of action.
" [T]he interpretation of pleadings is always a question of law for the court . . . The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the 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 . . ." (Citations omitted; internal quotation marks omitted.) Dornfried v. October Twenty Four, Inc., 230 Conn. 622, 629-30, 646 A.2d 772 (1994); see also Petitte v. DSL.net, Inc., 102 Conn.App. 363, 374-75, 925 A.2d 457 (2007) (" Whenever [the] language [of the pleadings] fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties").
The court construes the allegations of the complaint as constituting causes of action for wrongful death premised on claims of medical malpractice against the YNHH and Hospice defendants in causing the death of the decedent; bystander emotional distress against the YNHH and Hospice defendants based on the plaintiff observing the decedent's death while at those institutions; intentional infliction of emotional distress against the YNHH and Hospice defendants, Carangelo and Ceslik based on their alleged conspiring " to conceal [the decedent's] medical records" from the plaintiff " in order to prevent [him] from investigating and obtaining evidence to support claims before the statute of limitations expired"; and Medicare and Medicaid fraud against YNHH and Hospice relating to billing for " killing" the decedent.
The defendants have filed essentially identical motions to dismiss claiming that the plaintiff's action should be dismissed for the following reasons: (1) there is a lack of subject matter jurisdiction because the plaintiff is not the appointed representative of the decedent's estate (in fact, an estate was never opened in the probate court) and, therefore, does not have the standing to bring a statutory wrongful death action; (2) even if the plaintiff was the representative of the decedent's estate, the action is time barred and jurisdictionally deficient as it was not commenced within the applicable limitation of action period for wrongful death claims; (3) the plaintiff failed to comply with General Statutes § 52-190a governing actions based on medical malpractice; the plaintiff's bystander emotional distress claims arc derivative of the medical malpractice claims, and dismissal of the malpractice claims bar recovery on the bystander emotional distress claims; and, (4) the plaintiff lacks standing to pursue an individual action for Medicare and Medicaid fraud. Additionally, Carangelo, an attorney, claims that the absolute/litigation privilege bars the plaintiff's claim against him.
I
LACK OF SUBJECT MATTER JURISDICTION OVER WRONGFUL DEATH CLAIM
The vast majority of the allegations in the plaintiff's complaint challenge the conduct of the' YNHH and Hospice defendants toward the decedent while he was under their care and treatment. " [P]rofessional negligence or malpractice . . . [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] . . . the failure to exercise requisite medical skill . . . From those definitions, we conclude that the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." (Emphasis in original; internal quotation marks omitted.) Boone v. William W. Backus Hospital, supra, 272 Conn. 551, 562-63, 864 A.2d 1 (2005).
The present action arises out the death of the plaintiff's son. At the heart of the plaintiff's complaint against the medical defendants, YHHH and Hospice, is his claim that their negligent care and treatment of the decedent caused his death. Among other things, the plaintiff alleges that the YNHH and Hospice defendants improperly medicated, hydrated and fed the decedent " intentionally contributing to and hastening his death."
The plaintiff's claims certainly arises out of the professional-patient relationship between the YNHH and Hospice defendants, and the decedent, as the facts underlying the claims occurred solely in the context of these institutions' care and treatment of the decedent for cancer. The claims are of a " specialized medical nature" because they directly involve the plaintiff's medical condition: cancer. To decide the medical issues presented by the plaintiff's complaint, which are beyond the understanding of an average juror, a jury would need expert medical testimony as to the appropriate standard of care, and whether the conduct of the YNHH and Hospice defendants breached that standard.
It does not appear to be disputed that the decedent suffered from cancer at the time of his death.
The alleged acts of the YNHH and Hospice defendants also substantially are related to their medical diagnosis and treatment of the plaintiff, and involved the exercise of their medical judgment. Whether or when the decedent needed medication, nutrition and hydration involves the exercise of medical judgment. The types of medication and the dosages involve the exercise of medical judgment.
Notwithstanding the plaintiff's numerous improper characterizations in his complaint of the actions of the YNHH and Hospice defendants, the actions that form the basis of the plaintiff's claims against those defendants inherently involve the exercise of their medical judgment. Therefore, the court construes the allegations of the plaintiff's complaint as stating of cause of action against the YNHH and Hospice defendants for medical negligence.
The defendants contend that there is a lack of subject matter jurisdiction over the medical malpractice action because the plaintiff is not the executor or administrator of the decedent's estate and does not have the standing to bring a statutory wrongful death action based on medical malpractice; (2) even if the plaintiff is the representative of the decedent's estate, the action is time barred and jurisdictionally deficient as it was not commenced within the applicable limitation of action period for wrongful death claims; (3) the plaintiff failed to comply with General Statutes § 52-190a governing actions based on medical negligence; the plaintiff's bystander emotional distress claims are derivative of the medical malpractice claims, and dismissal of the malpractice claims bar recovery on the bystander emotional distress claims.
The plaintiff claims that the YNHH and Hospice defendants wrongfully caused the death of his decedent. " The wrongful death statute, General Statutes § 52-555, is the sole basis upon which an action that includes as an element of damages a person's death or its consequences can be brought. At common law, the death of the injured person, whether contemporaneous with the wrongful act or not, terminated liability of the wrongdoer because the right to enforce it ended with the death . . . Death and its direct consequences can constitute recoverable elements of damages only if, and to the extent that, they are made so by statute." (Citations omitted.) Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 295, 627 A.2d 1288, 1294 (1993).
The statute provides in relevant part: " In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of." General Statutes § 52-555(a).
" General Statutes § 52-555 creates a cause of action that may be maintained only by an executor or administrator of an estate . . . Death, at common law, is not a recoverable element of damage . . . It is only by reason of statute that a death action is maintainable in Connecticut . . . This statute provides for the bringing of such an action by either an executor or an administrator; it does not confer on anyone else, including the parents of a decedent, any right to bring such an action individually." (Citations omitted; internal quotation marks omitted.) Issac v. Mount Sinai Hosp., 3 Conn.App. 598, 600-01, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985).
The plaintiff brings this action in his individual capacity. It is undisputed that the probate court, after a hearing at which evidence was submitted, and the plaintiff was present and heard, concluded that there was " no basis for the appointment of an administrator and further, that no estate examiner is appointed." Because there is no estate, and, consequently, the plaintiff has not been appointed as a representative of an estate, he lacks standing under § 52-555 to bring a wrongful death action, the YNHH and Hospice defendants' motion to dismiss the plaintiff's medical malpractice action based on a lack of subject matter jurisdiction is granted. Johnson v. Esposito, Superior Court, judicial district of Stamford, Docket No. CV-13-6018802-S (September 25, 2014, Genuario, J.) [59 Conn.L.Rptr. 245, ] (granting motion to dismiss for lack of standing under § 52-555).
In view of the conclusion that the plaintiff lacks standing to maintain a claim for medical malpractice, the court need not address the other legal claims advanced by the defendants attacking that cause of action. In dismissing the malpractice claim, the court notes that the plaintiff only brings that claim against the YNHH and Hospice defendants. The dismissal of that claim, therefore, applies only to those defendants, and not to Ceslik or Carangelo.
Most of the plaintiff's allegations concern the medical malpractice claims. In reading the complaint in its entirety and affording all of the allegations a reasonable construction, the plaintiff also has stated claims against the YNHH and Hospice defendants for bystander emotional distress, separate claims for intentional infliction of emotional distress against Carangelo and Ceslik, and a claim of Medicare and Medicaid fraud. Each of those claims will be separately addressed.
II
DISMISSAL OF WRONGFUL DEATH CLAIM REQUIRES DISMISSAL OF BYSTANDER EMOTIONAL DISTRESS CLAIM
The YNHH and Hospice defendants contend that the plaintiff's claim for bystander emotional distress is derivative of the malpractice claim, and cannot survive the dismissal of that claim. The court agrees.
" Bystander emotional distress is a derivative claim, pursuant to which a bystander who witnesses another person (the primary victim) suffer injury or death as a result of the negligence of a third party seeks to recover from that third party for the emotional distress that the bystander suffers as a result." Squeo v. Norwalk Hosp. Ass'n., 316 Conn. 558, 564, 113 A.3d 932, 937 (2015). In Squeo, our Supreme Court " conclude[d] that a bystander to medical malpractice may bring a claim for the resulting emotional distress only when the injuries result from gross negligence such that it would be readily apparent to a lay observer. This additional element reflects our determination that bystander claims should be available in the medical malpractice context only under extremely limited circumstances. [W]e [further] conclude that a bystander must suffer injuries that are severe and debilitating, such that they warrant a psychiatric diagnosis or otherwise substantially impair the bystander's ability to cope with life's daily routines and demands." Id., 560-61.
The plaintiff's claim for bystander emotion distress, brought in the context of a medical malpractice action, is a derivative claim brought only against the YNHH and Hospice defendants. Because the bystander emotional distress claim is inextricably interwoven with the dismissed malpractice claim, the plaintiff's claim for bystander emotional distress also is dismissed as to those defendants. See Drew v. William W. Backus Hosp., 77 Conn.App. 645, 669, 825 A.2d 810, 824-25 (2003).
III
THERE EXISTS A LACK OF SUBJECT MATTER JURISDICTION OVER MEDICARE AND MEDICAID FRAUD CLAIMS
In paragraphs 108-10 of the 123 paragraph complaint, the plaintiff alleges that Hospice " committed Medicare and Medicaid fraud because [the decedent] was not qualified for services in a Hospice facility, and because Hospice billed these agencies for attempting to kill [the decedent]; and " by killing [the decedent] and getting paid for it." The plaintiff also alleges that YNHH " committed Medicare and Medicaid fraud because they transferred [the decedent] to Hospice when he was not qualified for services in a Hospice facility and because [YNHH] billed these agencies for killing [the decedent] upon his remission from Hospice."
The YNHH and Hospice defendants claim that allegations of such fraud are governed by the federal False Claims Act, 31 U.S.C. § 3729 et seq., and that there exists a lack of subject matter jurisdiction because the plaintiff improperly asserts an individual claim, and failed to comply with the statutory filing and notice requirements.
" The FCA authorizes suits by both the government and private citizens to recover monies erroneously paid to those who defraud the government by submitting or collecting falsified claims." Manning v. Utilities Mut. Ins. Co., 254 F.3d 387, 394 (2d Cir. 2001). " In a qui tam action, the plaintiff sues on behalf of and in the name of the government and invokes the standing of the government resulting from the fraud injury. See United States ex rel. Milam v. University of Texas M.D. Anderson Cancer Ctr., 961 F.2d 46, 49 (4th Cir. 1992) (" The government, and not the relator, must have suffered the 'injury in fact' required for Article III standing")." U.S. ex rel. Kreindler & Kreindler v. United Techs. Corp., 985 F.2d 1148, 1154 (2d Cir. 1993).
" While relators indisputably have a stake in the outcome of False Claims Act qui tam cases that they initiate, the Government remains the real party in interest in any such action . . . As we have explained: All of the acts that make a person liable under [the False Claims Act] focus on. the use of fraud to secure payment from the government. It is the government that has been injured by the presentation of such claims; it is in the government's name that the action must be brought; it is the government's injury that provides the measure for the damages that are to be trebled; and it is the government that must receive the lion's share--at least 70%--of any recovery . . . In short, while the False Claims Act permits relators to control the False Claims Act litigation, the claim itself belongs to the United States . . . Accordingly, as the United States remains the real party in interest in qui tam action . . . the case, albeit controlled and litigated by the relator, is not the relator's own case . . . nor one in which he has an interest personal to him . . . Because relators lack a personal interest in False Claims Act qui tam actions, we conclude that they are not entitled to proceed pro se." (Citations omitted; internal quotation marks omitted.) U.S. ex rel. Mergent Services v. Flaherty, 540 F.3d 89, 93 (2d Cir. 2008).
The plaintiff has commenced this case in his individual capacity, and, consequently, lacks the standing to maintain Medicare and Medicaid fraud claims. Therefore, the plaintiff's claims of such fraud are dismissed.
IV
THERE IS A LACK OF SUBJECT MATTER JURISDICTION OVER EMOTIONAL DISTRESS CLAIM AGAINST CARANGELO
The defendant, Carangelo, moves to dismiss the plaintiff's claim against him for intentional infliction of emotional distress because there is a lack of subject matter jurisdiction based on the doctrine of absolute privilege. The sole allegation against Carangelo in the plaintiff's lengthy complaint is he " intentionally interfered with the discovery of [the decedent's] medical records" causing the plaintiff an aggravation of his emotional distress.
As indicated, at oral argument counsel for Carangelo indicated that he was adopting the oral arguments and memorandum of counsel for the YNHH and Hospice defendants. Attached to the memorandum is a copy of a probate court decree dated April 26, 2013, relating to the petitions by the plaintiff and Ceslik to be appointed administrators of the estate of the decedent. The decree indicates that " [b]oth parties acknowledged that the decedent had no assets upon which an estate must be administered." The decree also states that Carangelo was the attorney for Ceslik in the probate proceedings. A reasonable inference from the allegation, which expressly alleges misconduct involving " discovery of [the decedent's] medical records, " is that challenged conduct of Carangelo occurred during his representation of Ceslik in the underlying probate court proceeding.
" The principle that defamatory statements by attorneys during judicial proceedings are absolutely privileged when they are pertinent and material to the controversy is now well established in American jurisprudence. The formulation of the rule in the Restatement (Second) of Torts, which has been adopted in nearly every state . . . provides: 'An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding . . .' One of the comments to . . . the Restatement (Second) further provides that the privilege 'protects the attorney from liability in an action for defamation irrespective of his purpose in publishing the defamatory matter, his belief in its truth, or even his knowledge of its falsity.'" (Citations omitted.) Simms v. Seaman, 308 Conn. 523, 534-35, 69 A.3d 880, 886-87 (2013). " Like other jurisdictions, Connecticut has long recognized the litigation privilege." Id., 536.
" Absolute immunity has also been called [an] absolute privilege or the litigation privilege by the courts." Carney v. Amendola, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV-10-6003738, (May 14, 2014, Brazzel Massaro, J.).
[W]hether attorneys are protected by absolute immunity for their conduct during judicial proceedings is a question of law over which our review is plenary.' Simms v. Seaman, 308 Conn. 523, 530, 69 A.3d 880 (2013). As the doctrine of absolute immunity concerns a court's subject matter jurisdiction; Stone v. Pattis, 144 Conn.App. 79, 96-97, 72 A.3d 1138 (2013); we are 'mindful of the well established notion that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.' (Internal quotation marks omitted.) Id., at 95, 72 A.3d 1138. The question before us is whether the facts as alleged in the pleadings, viewed in the light most favorable to the plaintiff, are sufficient to survive dismissal on the grounds of absolute immunity. Rioux v. Barry, 283 Conn. 338, 341, 343, 927 A.2d 304 (2007)." Perugini v. Giuliano, 148 Conn.App. 861, 873, 89 A.3d 358, 366 (2014).
Here, the plaintiff claims that in the context of discovery in the underlying probate court proceedings Carangelo " interfered with the discovery of . . . records" causing the plaintiff emotional distress. The alleged conduct of Carangelo is privileged under the circumstances alleged in the plaintiff's operative complaint. See Petyan v. Ellis, 200 Conn. 243, 255, 510 A.2d 1337 (1986) (claim of intentional infliction of emotional distress precluded if based on privileged conduct).
Accordingly, the plaintiff lacks standing to maintain his emotional distress claim against Carangelo, and his motion to dismiss that claim is granted.
V
EMOTIONAL DISTRESS CLAIM AGAINST CESLIK DEFENDANT
The plaintiff's intentional infliction of emotional distress claim against Ceslik is not precluded by absolute immunity, and, therefore, there exists subject matter jurisdiction. As a result, the Ceslik defendant's motion to dismiss the plaintiff's claim for intentional infliction of emotional distress is denied.
VI
CONCLUSION
1. The plaintiff's wrongful death claim based on medical malpractice against the YNHH (113.00) and Hospice (123.00) defendants is dismissed for a lack of subject matter jurisdiction;
2. The plaintiff's bystander emotional distress claim against the YNHH and Hospice defendants is dismissed for a lack of subject matter jurisdiction;
3. The plaintiff's claim for Medicare and Medicaid fraud is dismissed for a lack of subject matter jurisdiction;
4. The plaintiff's claim for intentional infliction of emotional distress against Carangelo (138.00) is dismissed for a lack of subject matter jurisdiction; and
5. Ceslik's (144.00) motion to dismiss the plaintiff's claim for intentional infliction of emotional distress is denied.
6. The plaintiff's objections (147, 148, 149) are overruled.
7. The plaintiff's objection (150) is sustained.