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Diteresi v. Stamford Health System

Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
Sep 2, 2011
2011 Ct. Sup. 18742 (Conn. Super. Ct. 2011)

Opinion

No. FST CV 06 5001340 S

September 2, 2011


MEMORANDUM OF DECISION RE PLAINTIFFS' MOTION TO REARGUE/RECONSIDER DATED JANUARY 3, 2011 (#349.00)


The plaintiffs, Emmanuel J. DiTeresi and Virginia DiTeresi, Executors of the will of Santina DiTeresi, have moved to reargue this court's decision granting summary judgment in favor of the defendants on Count Twelve of the plaintiffs' Second Amended Complaint dated February 12, 2010 (#212.00). Count Twelve alleges a violation of the Connecticut Unfair Trade Practice Act (CUTPA) by Santina DiTeresi against the defendant hospital. The original Motion for Summary Judgment (#247.00) and the Supplemental Motion for Summary Judgment (#263.00) were granted as to all twelve counts. This court in granting summary judgment stated that "this case tests the limits of the causes of action against a hospital for its employee's sexual assault on a ninety-four-year-old female patient, the hospital's delays and cover up in investigating and reporting the sexual assault and the effects thereof on her adult daughter." (#345.00.)

This CUTPA count against the hospital alleges damages caused by the delays and coverups of the hospital including its failure to provide immediate and adequate medical attention to Santina DiTeresi after it discovered that its employee had sexually assaulted her. It is based on unfair practices. The CUTPA count does not seek any damages for the sexual assault and battery but it does seek damages caused by the hospital's delays and coverups. The essential issue to be resolved in this Motion to Reargue is whether there is a material issue of fact as to whether Santina DiTeresi suffered "any ascertainable loss of money or property" as a result of the hospital's delays and coverups. The plaintiffs are not claiming that the damages Santina DiTeresi may have suffered in the sexual assault and battery are such an ascertainable loss since the focus of Count Twelve is the post-assault omissions and commissions of the hospital; its delays and coverups. The defendants, Stamford Health System, Inc. and the Stamford Hospital, are referred to in this Memorandum as being one and the same "hospital." The court granted reargument.

The hospital filed a Motion for Summary Judgment dated April 30, 2010 (#247.00) and a Supplemental Motion for Summary Judgment dated June 21, 2010 (#263.00) against twelve of the nineteen counts of the plaintiff's Second Amended Complaint dated February 12, 2010 (#212.00). The court rendered a decision on each of these twelve counts by a Memorandum of Decision dated December 14, 2010 (#345.00). On pages 6 and 7 of that December 14, 2010 Memorandum of Decision the court outlined the various supporting documents including pleadings and exhibits submitted by both parties in support of their positions as to these twelve legal arguments. The court noted that the parties had submitted more than 1,100 pages in support of their respective positions. The Memorandum of Decision was 62 pages in length. The court discussed on pages 51 through 54, the CUTPA Count Twelve by Santina DiTeresi, individually against the hospital. The court granted the Motion for Summary Judgment as to the CUTPA Count Twelve by Santina DiTeresi against the hospital in its December 14, 2010 Memorandum of Decision, concluding that there was no genuine issue of material fact that any loss of money or property was suffered by Santina DiTeresi nor was there any personal injury suffered by Santina DiTeresi as a result of the alleged coverups or delays by the hospital in reporting the sexual assault or treating Santina DiTeresi. The court further found that her claim of emotional distress as an ascertainable loss did not meet CUTPA requirements.

The plaintiffs' Motion to Reargue/Reconsider (#349.00) contains a 15-page brief and 59 pages of exhibits consists of one deposition transcript, three portions of the hospital records, a legislative submission and one reporting form. The hospital filed an Objection to the Motion to Reargue/Reconsider dated January 10, 2011 (#351.00) consisting of a 10-page brief and 8 pages of deposition transcripts. The hospital then filed a Supplemental Brief dated January 25, 2011 (#352.00) consisting of a 10-page brief and 19 pages of exhibits consisting of portions of three deposition transcripts and one affidavit. The plaintiffs filed a Supplemental Brief dated February 10, 2011 (#353.00) consisting of a 20-page brief, 56 pages of case law, as well as an additional 74 pages consisting of 10 exhibits of hospital billing records, one police report, portions of four deposition transcripts, two portions of the hospital records and two responses to requests to admit. The hospital filed a Reply to Plaintiffs' Supplemental Brief, dated February 18, 2011 (#354.00) consisting of a 5-page brief and 12 pages of portions of three deposition transcripts and one affidavit. Finally on May 5, 2011, the hospital filed a Notice of Filing Defendant's Supplemental Exhibits consisting of a 2-page brief and 10 pages of excerpts from the Stamford Hospital records including the nursing department patient care records for March 23, 2004 and March 27, 2004. The parties appeared before the court on April 18, 2011 and offered extensive argument on the Motion to Reargue/Reconsider, addressed only to the CUTPA Count Twelve. The underlying allegations, facts and time line relating to the hospital's post-assault delays and coverups are contained in pages 10-14 of this court's December 14, 2010 Memorandum of Decision (#345.00). The court adopts pages 10-14 in this Memorandum of Decision.

The plaintiffs offered five legal points in the presentation of the Motion to Reargue/Reconsider.

1. Santina DiTeresi was a patient of the Stamford Hospital and thus was a customer, who paid for her services and as such she was entitled to be treated fairly and honestly.

2. The concept in CUTPA of an ascertainable loss is not measured by actual damages.

3. The hospital records demonstrate actual injuries sustained by Santina DiTeresi and the claim of actual injuries is supported by the deposition of Geraldine Hill, the plaintiffs' nursing expert.

4. Trial court decisions hold that emotional distress is sufficient to establish CUTPA.

5. There is a material issue of fact based upon all the hospital records as to whether or not the plaintiff sustained personal injury caused by the hospital's coverups and delays.

The court, in rendering its December 14, 2010 decision, only focused on the ascertainable loss of money or property portion of the Connecticut Unfair Trade Practices Act, Gen. Stat. § 42-110g(a).

CUTPA provides that "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Gen. Stat. § 42-110b(a). CUTPA is based on § 5(a)(1) of the Federal Trade Commission Act 15 USC 45. The courts of this state are to be "guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5(a)(1) of the Federal Trade Commission Act ( 15 USC 45(a)(1)), as from time to time amended." Gen. Stat. § 42-110b(b). Our Supreme Court defined "unfair trade practices" by adopting the "cigarette rule." "We followed this mandate recently, and adopted the criteria set out in the `cigarette rule' by the federal trade commission for determining when a practice is unfair: `(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise-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, competitors or other businessmen." McLaughlin Ford, Inc. v. Ford Motor Company, 192 Conn. 558, 567-68 (1984). "All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 368 (1999). This cigarette rule adopted by our Supreme Court was promulgated by a 1964 Federal Trade Commission Policy Statement requiring warning labels on cigarette packaging and therein the "cigarette rule" was adopted. FTC v. Sperry Hutchinson Co. 405 U.S. 233, 244-45, n. 5 (1972). Connecticut continues to follow the cigarette rule.

A number of courts in Connecticut have pointed out that the Federal Trade Commission has moved away from the first and second prongs of the "cigarette rule" and now uses the "substantial injury test" to define unfair practices. This test focuses on the third prong of the cigarette rule. The substantial injury rule requires that: "(1) the practice must cause a substantial injury to consumers, competitors or other businessmen; (2) the injury must not be outweighed by countervailing benefits to consumers or competition that the practice produces; and (3) it must be an injury that consumers themselves could not reasonably have avoided." Artie's Auto Body, Inc., et al. v. The Hartford Fire Insurance Company, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number X08-CV03-0196141 S (September 22, 2009, Jennings, J.). Judge Jennings noted that the substantial injury test was adopted on December 17, 1980 by the Federal Trade Commission in a publication entitled "Commission Statement of Policy of the Scope of the Consumer Unfairness Jurisdiction."

In further litigation in Artie's Auto Body Judge Jennings had the opportunity to note in his October 13, 2010 Memorandum of Decision that The Hartford Fire Insurance Company is claiming that the court's jury instructions on the "cigarette rule" as an Unfair Trade Practice under CUTPA was in error because the "substantial injury test" adopted by the Federal Trade Commission in lieu of the cigarette rule is now the appropriate standard on unfairness. Artie's Auto Body, Inc., et al. v. The Hartford Fire Insurance Company, Superior Court, judicial district of Stamford/Norwalk of Norwalk, Docket Number X08-CV03-0196141 S (October 13, 2010, Jennings, J.T.R.) [ 50 Conn. L. Rptr. 790].

A number of other court decisions have questioned the continued viability of the cigarette rule.

We refer to the source of these criteria as the "cigarette rule" because they were initially articulated by the Federal Trade Commission in Statement of Basis and Purpose of Trade Regulation Rule 408, Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking. 29 Fed.Reg. 8355 (1964); see Siudyla v. ChemExec Relocation Systems, Inc., 23 Conn.App. 180, 186 n. 2, 579 A.2d 578 (1990). Although we consistently have followed the cigarette rule in CUTPA cases, we also note that, when interpreting "unfairness" under CUTPA, our decisions are to be guided, pursuant to General Statutes § 42-110b(c), by the Federal Trade Commission and federal court interpretations of the Federal Trade Act. Under those authorities, a serious question exists concerning whether the cigarette rule remains the guiding rule utilized by the Federal Trade Commission. See American Financial Services Assn. v. Federal Trade Commission, 767 F.2d 957, 969-70 (D.C. Cir. 1985); see also P. Sobel, "Unfair Acts or Practices Under CUTPA," 77 Conn. B.J. 105 (2003). Nevertheless, because neither party in the present case has raised or briefed this issue or asked us to reconsider our law in this area, it is appropriate that we wait until the issue has been squarely presented to us for determination.

American Car Rental, Inc. v. Commissioner of Consumer Protection, 273 Conn. 296, 305 n. 6 (2005). (Borden, J)

We note that we recently have recognized that a question exists as to whether the cigarette rule remains the guiding rule utilized by the Federal Trade Commission. See American Car Rental, Inc. v. Commissioner of Consumer Protection, 273 Conn. 296, 305 n. 6, 869 A.2d 1198 (2005). In the present case, however, neither party has raised or briefed this issue or asked us to reconsider our law in this area, and, accordingly, we will wait to consider this question until it has been presented to us for determination. See id.

Votto v. American Car Rental, Inc., 273 Conn. 478, 484 n. 3 (2005). (Vertefeuille, J.)

Although we consistently have followed the cigarette rule in CUTPA cases, we also note that, when interpreting "unfairness" under CUTPA, our decisions are to be guided by the interpretations of the Federal Trade Act by the Federal Trade Commission and the federal courts. See General Statutes § 42-110b(c). Review of those authorities indicates that a serious question exists as to whether the cigarette rule remains the guiding rule utilized under federal law. See American Financial Services Assn. v. Federal Trade Commission, 767 F.2d 957, 969-70 (D.C. Cir. 1985), cert. denied, 475 U.S. 1011, 106 S.Ct. 1185, 89 L.Ed.2d 301 (1986); see also P. Sobel, "Unfair Acts or Practices Under CUTPA," 77 Conn. B.J. 105 (2003). Because, in the present case, neither party has raised or briefed this issue, and both have briefed the issue applying the cigarette rule, we decline to address the issue of the viability of the cigarette rule until it squarely has been presented to us. See American Car Rental, Inc. v. Commissioner of Consumer Protection, 273 Conn. 296, 305 n. 6, 869 A.2d 1198 (2005).

Glazer v. Dress Barn, Inc., 274 Conn. 33, 82 fn. 34 (2005) (Katz, J.)

I agree with and join the well reasoned opinion of the majority in this matter. I write only to express my concern that, since the passage of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., we increasingly have ignored the directive in the statute that "[i]t is the intent of the legislature that in construing subsection (a) of this section, the commissioner [of consumer protection] and the courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5(a)(1) of the Federal Trade Commission Act ( 15 U.S.C. 45(a)(1)), as from time to time amended." General Statutes § 42-110b(b). I point out that commentators, at least as early as 1988, have noted this court's lack of attention to major policy statements and decisions issued by the Federal Trade Commission (FTC). For example, Professor John Morgan noted in a 1988 article in the Connecticut Bar Journal that, "[a]s to unfair and deceptive acts and practices, FTC doctrine has been altered significantly in the [1980s]. Major policy statements have been issued and have later become binding precedent for the FTC by incorporation in FTC decisions. In spite of this adoption by the FTC, courts interpreting CUTPA have so far given only brief attention to the statements with no substantial discussion of their import. Courts continue to cite older authority where the current FTC policy is rather more elaborate or even where it differs markedly." J. Morgan, "The Connecticut Unfair Trade Practices Act: Determining the Standards of Conduct," 62 Conn. B.J. 74, 94 (1988). Other changes to FTC policy and decisions have occurred since this article was written but have received limited, if any, attention in our opinions. Nevertheless, it is also my view that the case presently before us would not be the appropriate case to take on such a review of our precedent, and, therefore, any such review must be left to a future case.

Naples v. Keystone Building and Development Corp, 295 Conn. 214, 238-39 (2010) (concurring by Zarella, J.)

Artie's Auto Body, Inc. et al. v. The Hartford Insurance Company in which a jury rendered a plaintiffs' verdict for $14,765,556.27 against the defendant, Hartford Fire Insurance Company, is now on appeal. Judge Jennings declined to adopt the substantial injury test holding that "we may not overturn prior case law established by our Supreme Court." Sullivan v. Brown, 116 Conn.App. 660, 662 (2009).

It would appear that the Artie's Auto Body, Inc. litigants have accepted the invitation of four justices of the Connecticut Supreme Court to test the continued viability of the cigarette rule in unfair practices CUTPA cases. The court therefore is going to analyze the issues in this Motion to Reargue/Reconsider on the basis of current CUTPA law on unfairness and focus on the ascertainable loss issue. The court will leave the consideration and possible adoption of the substantial injury rule in unfair practices CUTPA cases to our appellate courts.

The ascertainable loss rule established in Connecticut by statute is not the equivalent of damages. Under CUTPA, liability must be proven by a plaintiff before damages can be awarded. Gen. Stat. § 42-110g(a). "The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief . . . Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation . . . An ascertainable loss is a loss that is capable of being discovered, observed or established . . . The term `loss' necessarily encompasses a broader meaning than the term `damage' and `has been held synonymous with the term depravation, detriment and injury' . . . To establish an ascertainable loss, a plaintiff is not required to prove actual damages of a specific dollar amount . . . A loss is ascertainable if it is measurable even though the precise amount of loss is not known." Artie's Auto Body, Inc. v. Hartford Fire Insurance Co., 287 Conn. 208, 217-18 (2008).

Our conclusion finds initial support in the language chosen by the legislature when it framed 42-110g(a). Where drafters meant "actual damages," they employed those exact words. The use of different terms within the same sentence of a statute plainly implies that differing meanings were intended. See Johnston v. Hartford, 96 Conn. 142, 150-51, 113A. 273 (1921). Moreover, the inclusion of the word "ascertainable" to modify the word "loss" indicates that plaintiffs are not required to prove actual damages of a specific dollar amount. "Ascertainable" means "capable of being discovered, observed or established." Scott v. Western International Surplus Sales, Inc., 267 Or. 512, 515, 517 P.2d 661 (1973).

"Loss" has been held synonymous with deprivation, detriment and injury. Black's Law Dictionary. It is a generic and relative term. United States v. City National Bank of Duluth, 31 F.Sup. 530, 533 (D.Minn. 1939). "Damage," on the other hand, is only a species of loss. Id., 532. The term "loss" necessarily encompasses a broader meaning than the term "damage." Id. page 614.

Whenever a consumer has received something other than what he bargained for, he has suffered a loss of money or property. That loss is ascertainable if it is measurable even though the precise amount of the loss is not known.

Hinchcliffe v. American Motors Corporation, 184 Conn. 607, 613-14 (1981).

After reviewing the recent and prior submissions on the CUTPA issue, the court finds that there is no evidence that Santina DiTeresi suffered any loss of money or property. There is no evidence that any hospital bills, medical bills or other monetary costs were incurred by Santina DiTeresi as a result of the hospital's delays or coverups post-assault. There is nothing in the record to indicate that any personal property of Santina DiTeresi was lost, destroyed or damaged. There is nothing in the record to indicate that the gown or bed linens destroyed or disposed of by the hospital and/or the assailant post-assault were Santina DiTeresi's property. Reargument having been granted, the relief requested as to the loss of money or property is denied.

After reviewing the recent and prior submissions on the CUTPA issue, the court finds that it is possible that Santina DiTeresi did sustain some emotional distress by reason of the delay in treatment post-assault and other delays and coverups of the hospital post-assault. Due to Santina DiTeresi's dementia upon admission, she was incapable of reporting any complaints or conditions whatsoever. The court remains convinced that emotional distress is not an ascertainable loss sufficient to support a CUTPA liability claim. The court references the law on that subject found in its December 14, 2010 Memorandum of Decision (#345.00) at pages 53 and 54. Reargument having been granted, the relief requested as to the claim of emotional distress as an ascertainable loss is denied.

The court now will discuss the final issue of an ascertainable loss, whether there is a material issue of fact that Santina DiTeresi sustained personal injury caused by the hospital's delays and coverups. This will require a detailed review of the pertinent hospital records from the morning of March 23, 2004 when the assault occurred, the records immediately prior to March 23, 2004 and the records thereafter throughout Santina DiTeresi's continued in-patient hospital stay.

Nurse Latrina Futrell saw Robert Mayes in the act of sexually assaulting Santina DiTeresi at approximately 10:30 a.m. on the morning of March 23, 2004. The Nursing Department Patient Care Records for the period are before this court; Bates stamped documents TSH 000253 through and including Bates stamped documents TSH 000256. Ex. A, #356.00. None of the boxes on page TSH 000254 entitled Neuro, Cardio, Resp, GI, GU/GYN, Muskulo Skeletal and Skin have any abnormal notations. The only notation on the GU/GYN box throughout that entire day are "Foley", meaning that she was catherized all throughout March 23, 2004, before and after the sexual assault. The 3:00 p.m. to 11:00 p.m. box stated "Foley-clear yellow," which is not evidence of any injury. None of the boxes on page TSH 000255 entitled Activity, Safety, Diet, Wound Dressing, Peripheral IV Therapy and Central Lines have any abnormal notations. The measurements of vital signs, fluid intake and fluid output on page TSH 000253 appear within the normal range with no notations of abnormalcy. On March 23, 2004 at 8:00 a.m. her temperature was 98.7, pulse 80, respiratory rate 20 and blood pressure 115/48. The vital signs were recorded every eight hours. On March 23, 2004 at 4:00 p.m., the next routine recording of her vital signs, recorded her temperature at 97.0, pulse 93, respiratory rate 20, and blood pressure at 124/60. No nurse's notes indicated any abnormalcy or need for treatment for the difference in vital signs from 8:00 a.m. on March 23, 2004 until 4:00 p.m. on March 23, 2004. The only manuscripted nurses's notes for March 23, 2004 occurred at 8:00 a.m. on page TSH 000256. No further nurses' notes were made on that page. Most of page TSH 000256 is blank. The manuscripted nurse's notes state: "pt alert eyes open. But pt confused speaks out but doesn't make sense." "Pt (diagnosed with) dementia." "Pt (without) physical signs of pain." "Pt resting comfortable", "Pt diapered and inc." and "Pt turned and reposition will continue to monitor." The fact that no nurse's manuscripted notes appear after the 8:00 a.m. entry on March 23, 2004 is strong evidence that the above noted conditions continued throughout March 23, 2004 without change.

Similar comments can be made for the equivalent four pages of Nursing Department Patient Care Records for the twenty-four hours of March 24, 25 and 26, 2004.

The Nursing Department Patient Care Records for the twenty-four hours of March 27, 2004 are found in Bates stamped documents TSH 000270 through and including Bates stamped document TSH 000273. Ex. B, #356.00. The vital signs were recorded for March 27, 2004 three times including 8:00 am and 4:00 pm with no notation of abnormalcy on page TSH 000270. The first abnormalcy appears on page TSH 000271 on March 27, 2004 in the 0700-1500 period. The notes of March 23, 2004 for the period ending at 7:00 a.m. in the Skin box indicates "(decreased) Skin turgor, right heel (dressing)." Those same notes appear in the Skin boxes for the periods ending 3:00 p.m. and 11:00 p.m. on March 23, 2004. Skin turgor is a common sign used by medical personnel to measure dehydration by squeezing the skin between two fingers for a few seconds and then releasing to test if the skin returns to its former shape. A decreased skin turgor is a sign of dehydration. Throughout March 23, 2004, before and after 10:30 a.m., Santina DiTeresi had decreased skin turgor. The plaintiffs are not claiming that this decreased skin turgor is evidence of injuries suffered by Santina DiTeresi.

The Skin box on March 27, 2004 noted at the 7:00 a.m. reading "decreased turgor" and "(right) heel (with) blackened area" and "seat ecchy area." At the 7:00 a.m. to 3:00 p.m. period the Skin box notes read "redness to peri area. That same notation was made for the 3:00 p.m. to 11:00 p.m. period with the addition of "butt paste," presumably the treatment for the redness. These two notations are the first change in Santina DiTeresi's physical condition after the 10:30 a.m. March 23, 2004 sexual assault. This change of condition occurred approximately four days after the assault. The nurses' manuscripted notes of March 27, 2004 contain no mention of this "redness to peri area." A redness of the peri area can be equated with diaper rash. Peri is short for perineum, the area located between the genitals and the anus.

If this "redness to peri area" is claimed by the plaintiffs to be proof of physical injury caused by the hospital's delays and coverups including the delay in treating Santina DiTersi on the morning and early afternoon of March 23, 2004, the court finds that this is not a material issue of fact. The hospital records only record this redness four days after the assault and over three days after the termination of the hospital's delays and coverups. The plaintiffs have produced no expert testimony that relates the "redness to peri area" to the hospital's delays and coverups. It would amount to speculation to relate the "redness to peri area" noted on March 27, 2004 to the events of March 23, 2004.

A material issue of fact cannot be demonstrated by speculation. Belle Hev v. LXPI Limited Partnership et al., Superior Court, judicial district of Waterbury, Docket Number CV 00-1617019S (May 2, 2002, Wolven, J.); Guertin v. Servus, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket Number CV 92-0513996 S (February 6, 1995, Corradino, J.). This is especially so since the nurse's manuscripted notes of March 27, 2004 at page TSH 000273 notes that she was wearing a diaper and the sexual assault occurred on March 23, 2004 during the process of changing her diaper. This is so since the plaintiffs concede that Santina DiTeresi could not express her concerns to anyone including medical providers due to her dementia.

The plaintiff's nursing expert, Geraldine Hall, provided a March 26, 2010 deposition testimony that the plaintiffs' claim contain a material issue of fact as to the hospital records containing evidence of Santina DiTeresi's post-assault physical injuries due to the hospital's delays and coverups. Geraldine Hall was not a treating nurse and there is no evidence that she examined Santina DiTeresi. The issue in Count Twelve is not whether or not Santina DiTeresi sustained personal injuries as a result of the sexual assault itself, but rather did she sustain personal injuries caused by the hospital's post-assault delays and coverups including the failure to promptly treat her. Nurse Hall noted that the hospital records before March 23, 2004 showed no redness in the vaginal or perianal area and the records after March 23, 2004 indicated such redness and thus that supported her opinion that Santina DiTersi suffered physical injuries as a result of the sexual assault itself. So too, Nurse Hall noted that the records after March 23, 2004 showed "scattered bruises on her arms and legs" and that supported her opinion of physical injury sustained as a result of the sexual assault itself. The nurse's notes of March 24, 2004 do indeed state "scattered bruises on arms/legs" in the Skin box. Ex. 4, #349.00. Despite plaintiffs' claim, the March 24, 2004 notes are silent as to redness in the vaginal or perianal area. The nurse's manuscripted notes for March 24, 2004 show no abnormalities. Only scattered bruises are mentioned in the March 25, 2004 records, not redness in the vaginal or perianal area. Ex. 4, #349.00. The same can be said for the March 26, 2004 records, silent as to redness but mentioning of scattered bruises. Ex. 4, #349.00. The plaintiffs are correct that the hospital records are silent as to redness and bruising for March 20, 21, and 22, 2004. Ex. 5, #349.00. The first record of redness in the perianal area was the aforementioned Skin box on March 27, 2004.

The evidence offered by the plaintiffs of physical injury sustained by the sexual assault is not relevant to whether or not Santina DiTeresi sustained any physical injury post-assault caused by the hospital's delays and coverups as alleged in the CUTPA Count Twelve. Nurse Hall testified that she saw no evidence of fresh bruising in the hospital records. Ex. A, page 72, #351.00. Nurse Hall also testified that redness would have occurred within a day or two. Ex. A, page 122, #351.00, yet the hospital records first noted redness in the perianal area on March 27, 2004, four days after the assault. No deposition testimony from Nurse Hall was provided to this court where she rendered an opinion of any physical injuries to Santina DiTeresi caused by the hospital's delays and coverups including delayed treatment.

Dr. Santi Neuberger, plaintiff's treating physician, noted that a GYN consultation was performed on March 24, 2004 and there was no evidence of trauma reported. Dr. Neuberger then examined her on March 24, 2004 and noted no abnormality. He testified that the bruising he noted was due to skin breakdown or early decubitus or ulceration, not trauma. Ex. C, page 51-54, 58, #352.00. There is no evidence in the file of any medical treatment or administration or prescription of medication as a result of the March 23, 2004 sexual assault or any events thereafter. Ex. C, page 53-54, #352.00. The plaintiffs' medical expert, Dr. John C. Shershow, testified: "Retrospectively looking back, I have no reason to believe she suffered physical damage, but at the time who knew." Ex. A, Page 140, #352.

The plaintiffs claim that Santina DiTeresi was billed for medical services during her stay. The bills are attached as Ex. 2, #353.00. The bills showed that she was billed $912 for each day from March 15, 2004 through and including March 29, 2004, in a med/surg/gyn semi-private room. She had previously been in a room called Post ICU from March 9, 2004 through and including March 14, 2004 and was billed $1,419 for each day in Post ICU. There was no increase in the room billings post-assault after March 23, 2004.

She was billed for intravenous solutions commencing on March 9, 2004 through March 30, 2004. The IV billings were for the same service for March 15, 2004 through and including March 25, 2004; Dextrose 5% 50ML Bag $45.25, Dextrose 5% 50ML Bag $45.25 and Dextrose 5% in water 100 ML $51.50. On March 26, 2004 she was billed only for one Dextrose 5% 50ML Bag $45.25. On March 27, 2004 she was only billed for Normal Saline 0.9% 1,000ML $115.00 and Normal Saline 0.9% 1,000ML $115.00. On March 28, 2004 she was billed only for Normal Saline 0.9% 1,000ML $115.00. On March 29, 2004 she was billed only for Dextrose 5% in water 1,000ML $52.50. On March 30, 2004 she was billed only for Dextrose 5% in water 1,000ML $52.50. There was no expert testimony indicating the significance of the March 26, 2004 through March 30, 2004 IV charges. The court finds that immediate post-assault for the remainder of March 23, 2004 and all of the next two days her IV intake remained the same. On March 27, 2004 and March 28, 2004 the IV changed. On March 25, 2004, March 29, 2004 and March 30, 2004 the IV was at a lower rate than for the March 15, 2004 through March 25, 2004 period. These facts do not support the plaintiffs' claims of personal injury or increased medical bills post-assault.

Santina DiTeresi was supplied with oxygen on March 10, 2004 through March 13, 2004. Oxygen was not administered to her after March 13, 2004.

She was administered medication from March 9, 2004 through March 30, 2004 every day. Her medication levels remained essentially the same from March 14, 2004 when she was moved from Post ICU to a semi-private room. That medication remained essentially the same post-assault through March 26, 2004. On March 26, 2004 her medication was reduced from two AMPICILLIN-SULBACTAM 1.5GM Vials to one per day. On March 27, 2004 she had discontinued that AMPICILLIN medication. From March 19, 2004 through March 26, 2004 there were occasional charges in medication but the same seven medications remained. The court was not provided with the significance of the billing changes in medication: March 19, 2004 NYSTATIN/TRIAMCIN/ZNO OINT.-60 GM $15.00 (ointment repeated only on March 27, 2004); March 20, 2004 FUROSEMIDE 20MG TABLET $1.15 (repeated daily until March 30, 2004); March 21, 2004 TEMAZEPAM 15MG CAPSULE $2.30 (not repeated); March 23, 2004 PILOCARPINE 4% OPH.SOLN.-2ML $28.00 (repeated only on March 27, 2004); March 27, 2004 DORZULOIMIDE 2% OPH.SOLN .5ML $104.00 (not repeated). There was no expert testimony indicating the significance of the continuing of medications and these few changes in medication post-assault. The court finds that her medications were administered at a lower rate post-assault. These facts do not support the plaintiffs' claims of personal injury or increased medical bills post-assault.

Santina DiTeresi was billed for laboratory tests and procedures from March 9, 2004. Most days she had a BASIC METABOLIC PANEL taken and was billed $197.00 each. On March 12, 2004 and March 16, 2004 she did not have a BASIC METABOLIC PANEL but had a COMPREHENSIVE METABOLIC PANEL for $144.50. She had no metabolic panels on March 18, 2004, March 20, 2004, March 21, 2004 and March 22, 2004. Her only lab tests and procedures thereafter was a BASIC METABOLIC PANEL $197.00 done on March 23, 2004, March 26, 2004 and March 30, 2004. These facts do not support the plaintiffs' claim of personal injury or increased medical bills post-assault.

She had a CT ABDOMEN WO CON on March 11, 2004 and no further CT scans were repeated. She had XR CHEST on March 9, 2004, March 19, 2004, March 22, 2004 and XR CHEST 2 VIEWS on March 27, 2004. She had two URINALYSIS tests done in the urology lab on March 9, 2004 and March 18, 2004. Various cultures were taken from her: seven on March 9, 2004, three on March 18, 2004 and one AEROBIC CULTURE on March 22, 2004 and a STOOL C. DIFF on March 30, 2004. Two electrocardiograms were conducted on March 9, 2004 and not repeated. She had Lab/Chemistry tests and procedures done on March 9, 10, 12, 14 and 22, 2004 and they were not repeated thereafter. She had Lab/Hematology tests done on many days with the routine CBC, PLATELET AUTO DIFF done on March 9, 10, 11, 12, 14, 15, 16, 17, 18, 20, 22, 23, 26 and 30, 2004 each for $57.50. On March 26, 2004 she had a DIFFERENTIAL FLAG for $21.25 done.

The last two pages of the billing records Ex. 2, #353.00, show a variety of procedures including ULTRASOUND, PHYSICAL THERAPY, OCCUPATIONAL THERAPY EMERGENCY ROOM VISIT, PULMONARY FUNCTION, all performed before March 23, 2004 and none after March 23, 2004. She did have speech pathology for SWALLOW EVAL and SWALLOW FEED TREATMENT on March 12, 15, 16, 17 and 18, 2004. She did have an ST TREATMENT 15 MIN on March 26, 2004 for speech pathology. These facts do not support plaintiff's claims of personal injury and increased medical bills post-assault.

Although Santina DiTeresi was billed for a myriad of medical services by the hospital, the records provided do not support any increased bills rendered to her post-assault.

The hospital records demonstrate that Santina DiTeresi continued to receive medical treatment from her pre-assault condition on and after March 23, 2004. The plaintiffs have not demonstrated any diminution in that medical care and treatment. Ex. B, #354.00.

The court finds that based on the documents submitted that there is no material issue of fact that Santina DiTeresi sustained a personal injury post-assault as a result of the hospital's delays and coverups. The court finds no evidence of her personal injuries post-assault as a result of the hospital's delays and coverups.

The court having granted reargument, denies the relief requested as to the claim of post-assault personal injury sustained by Santina DiTeresi as a result of the hospital's delays and coverups as being an ascertainable loss.

Having granted reargument, the relief requested in the entirety of the Motion to Reargue is denied.


Summaries of

Diteresi v. Stamford Health System

Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
Sep 2, 2011
2011 Ct. Sup. 18742 (Conn. Super. Ct. 2011)
Case details for

Diteresi v. Stamford Health System

Case Details

Full title:EMMANUEL J. DITERESI ET AL. EXECUTORS OF THE WILL OF SANTINA DITERESI ET…

Court:Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford

Date published: Sep 2, 2011

Citations

2011 Ct. Sup. 18742 (Conn. Super. Ct. 2011)