Opinion
No. CV01 0278583-S
January 9, 2004
MEMORANDUM OF DECISION MOTION TO STRIKE # 133
I PROCEDURAL HISTORY
On May 23, 2003, Charles G. Treadwell, executor of the estate of Charles H. Treadwell, filed an eight-count amended complaint against several defendants, including Yale-New Haven Hospital, Dr. Joseph Piepmeier, Dr. Veronica Chiang and Dr. Kenneth Vives (collectively referred to as the defendants in this memorandum). This action arises out of the injury and subsequent death of the plaintiff's decedent, Charles H. Treadwell, on July 17, 1999. The plaintiff brings this action on behalf of the decedent's estate. The plaintiff alleges that the decedent's death resulted from negligent medical care following the decedent's slip and fall at a supermarket on July 13, 1999. Counts one and four are brought against Yale New-Haven Hospital, and Drs. Piepmeier, Chiang and Vives, respectively, and allege negligence based on the defendant's failure to properly diagnose, treat and administer medication to the decedent. Counts five and eight, which incorporate counts one and four, respectively are also brought against these defendants and allege loss of chance for successful treatment resulting from the negligent care administered by each defendant.
The six named defendants include: Yale-New Haven Hospital, Dr. Prescott Wiske, Cardiology Associates of New Haven, Dr. Joseph Piepmeier, Dr. Kenneth Vives and Dr. Veronica Chiang.
Practice Book § 10-3 states in relevant part: "When any claim made in a complaint is grounded on a statute, the statute shall be specifically pleaded by number." The plaintiff's amended complaint does not explicitly refer to General Statutes § 52-555 as the basis for the plaintiff's claims. However, the failure of the plaintiff to specifically refer to § 52-555 in a wrongful death action is not fatal to the complaint. See Haskos v. Jung, Superior Court, judicial district of New Haven, Docket No. CV 01 0448262 (March 20, 2002, Thompson, J.) ( 31 Conn. L. Rptr. 560, 560-61).
Counts two and three, a claim in negligence, are against Dr. Wiske and Cardiology Associates of New Haven, P.C., respectively and counts five and eight, also against these defendants, respectively, allege loss of chance. The defendants filed a motion to strike counts five and eight that was denied on December 22, 2003.
On June 5, 2003, the defendants filed a motion to strike counts five and eight of the amended complaint, accompanied by a memorandum of law in support. On August 28, 2003, the plaintiff filed a memorandum of law in opposition to the defendants' motion to strike.
II DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The defendants move to strike counts five and eight, the loss of chance counts, on the ground that a plaintiff may not assert them as separate causes of action in a wrongful death case. Relying on Alfano v. Montewese Health and Rehabilitation, Superior Court, judicial district of New Haven, Docket No. CV 02 0469356 (April 2, 2003, Thompson, J.) ( 34 Conn. L. Rptr. 418), the defendants claim that at common law, a plaintiff could not recover damages for death itself or any resulting injuries. The defendants argue that "[a] loss of chance claim brought against a medical provider by an estate alleging that the defendants' failure to properly diagnose the decedent's condition, [which] decreased the defendants' chances of successful treatment . . . must be asserted as an alternative theory of recovery under the wrongful death statute." In other words, the defendants are arguing that the wrongful death statute provides the exclusive means under which an estate may recover damages for death and its resulting injuries.
The plaintiff argues in opposition that the amended complaint sets forth legally sufficient claims because Borkowski v. Sacheti, 43 Conn. App. 294, 682 A.2d 1095, cert. denied, 239 Conn. 945, 686 A.2d 120 (1996), recognized a loss of chance and wrongful death as separate causes of action that may be pursued in conjunction with one another. The plaintiff further contends that Borkowski is factually analogous to his claim, as both are medical malpractice claims sounding in wrongful death and loss of chance.
Loss of chance is primarily relied upon in the context of medical malpractice actions. It allows a plaintiff to recover in proportion to her chance of survival prior to the allegedly negligent treatment. To prove loss of chance, the "plaintiff must show (1) that [the decedent had] in fact been deprived of a chance for successful treatment and (2) that the decreased chance for successful treatment more likely than not resulted from the defendant's negligence." (Emphasis in original.) LaBieniec v. Baker, 11 Conn. App. 199, 207, 526 A.2d 1341 (1987).
Courts have thus far looked to Borkowski to determine whether a plaintiff may bring loss of chance and wrongful death claims together. Borkowski v. Sacheti, supra, 43 Conn. App. 294. In Borkowski, the plaintiff sought relief based on three separate counts: 1) wrongful death caused by negligence of the defendant; 2) loss of chance of survival caused by negligence of the defendant; and 3) loss of consortium. Id., 296. The trial court declined to submit the loss of chance count to the jury, stating, "there is no cognizable cause of action in Connecticut for recovery on the `loss of chance' theory alleged in [the] second count." Id. The Appellate Court reversed the trial court's decision, reasoning that Connecticut indeed adopted loss of chance as a basis of recovery in LaBieniec. Id., 311. The Appellate Court then remanded the case for adjudication on the loss of chance count. Id., 315.
Connecticut Appellate decisions that have addressed loss of chance and wrongful death thus far have not involved motions to strike on the ground that the two causes of action cannot be pleaded together. Connecticut trial court cases interpreting Borkowski provide the most procedurally and factually analogous situations. Given that the plaintiff in Borkowski sought relief based on wrongful death and loss of chance as separate counts, and the Appellate Court remanded the case for further adjudication, a number of Superior Court cases have treated the case as impliedly allowing the two claims to be pleaded together.
In Torres v. American Medical Response of Connecticut, Inc., Superior Court, judicial district of Hartford, Docket No. CV 00 0802360 (September 6, 2001, Peck, J.), the plaintiff, acting as administratrix of her mother's estate, filed a sixteen-count complaint seeking damages resulting from alleged negligent medical care. Id. The plaintiff pleaded wrongful death and loss of chance separately, among other counts. Id. The defendant filed a motion to strike the loss of chance claim, arguing that the wrongful death statute is the sole basis of recovery for damages relating to death. Id. The court denied the motion, citing Borkowski as permitting the two counts to stand separately. Id. The court also reasoned that a plaintiff claiming loss of chance does not seek damages for death, rather she seeks damages for the deprivation of a chance for successful treatment.
Similar to the case before this court, the plaintiff failed to cite the wrongful death statute as the basis for her claim in the complaint. The court found that her negligence claim was indeed grounded in the wrongful death statute, and that her failure to specifically plead § 52-555 was not fatal to the complaint since Practice Book § 10-3(a) is a directory provision, rather than a mandatory provision. Torres v. American Medical Response of Connecticut, Inc., supra, Superior Court, Docket No. CV 00 0802360.
Similarly, in Cuhna v. Fisher, Superior Court, judicial district of Hartford, Docket No. CV 000594957 (July 6, 2000, Fineberg, J.) ( 27 Conn. L. Rptr. 496), the administratrix of the decedent's estate sought damages from various defendants alleging medical malpractice. The complaint included fourteen separate counts, including wrongful death and loss of chance. Id. The defendant filed a motion to strike, arguing that the plaintiff was precluded from maintaining separate causes of action for wrongful death and loss of chance because General Statutes § 52-555 provides the sole basis of recovery for damages resulting from death and its consequences. Id. The court denied the defendant's motion to strike, citing Borkowski for the proposition that "the Appellate Court would have allowed the loss of chance second count to be presented to the jury right along with the wrongful death first count." Id., 497.
Finally, in Haskos v. Jung, Superior Court, judicial district of New Haven, Docket No. CV 01 0448262 (March 20, 2002, Thompson, J.) ( 31 Conn. L. Rptr. 560), the plaintiff, executor of the decedent's estate, brought separate counts for wrongful death and loss of chance based on alleged medical malpractice. The defendant filed a motion to strike the loss of chance count on the ground that § 52-555 provided the sole remedy. Id. The court denied the motion to strike, reasoning that a plaintiff claiming loss of chance seeks damages for a decreased chance for successful treatment rather than death itself. Id., 561.
Despite the forgoing precedent, one trial court in Alfano v. Montowese Health Rehabilitation, supra, 34 Conn. L. Rptr. 418, which is relied on by the defendants in the present case, recently held that Borkowski does not imply that loss of chance is a separate cause of action in wrongful death claims. In Alfano, Judge Thompson revisited his previous decision in Haskos v. Jung, and stated anew that loss of chance must be presented as an alternative theory of recovery. Id. In granting the defendant's motion to strike, the court stated that "the court is not holding that the plaintiff cannot assert a loss of chance claim as that would run counter to the Appellate Court's holding in Borkowski. Such [a] claim should be asserted, however, as an alternative theory of recovery pursuant to § 52-555 and not as a separate common law cause of action." Id.
Contrary to the recent holding in Alfano, this court finds the previous line of Superior Court cases more persuasive. As stated in those opinions, a loss of chance plaintiff recovers damages for the decreased chance for successful treatment. Pursuant to § 52-555, an executor or administrator may bring an action for "injuries resulting in death" and "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, including funeral expense." "`Just damages' [for wrongful death) include (1) the value of decedent's lost earning capacity less deductions necessary for her living expenses and taking into consideration that a present cash payment will be made, (2) compensation for destruction of capacity to carry on and enjoy life's activities in a way decedent would have done had she lived, and (3) compensation for conscious pain and suffering." (Internal quotation marks omitted.) Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn., 134, 149 n. 12, 491 A.2d 389 (1985). The death itself may be added as an element of damages. Id., 149. Loss of chance, therefore, may be pleaded with a wrongful death claim since compensation for loss of chance for successful treatment is not provided under the statute.
III CONCLUSION
For the foregoing reasons, the court denies the defendants' motion to strike counts five and eight of the amended complaint.
So ordered.
BY THE COURT, PETER EMMETT WIESE, JUDGE.