Opinion
No. CV03 034 83 99 S
December 3, 2003
MEMORANDUM OF DECISION
The plaintiff instituted this proceeding against the Danbury Hospital (hospital) and Sean Vines, an employee of the hospital, for injuries she allegedly sustained when she was subjected to sexual conduct by Vines at the hospital. Prior to November 15, 2000, Heaford was admitted to the psychiatric facilities at the hospital as a patient and placed on suicide prevention watch while being treated for various mental and emotional illnesses. In particular, during the summer of 2000, Heaford was admitted to the facility and, for a three- to four-day period, was placed under the constant supervision of Vines who was assigned to be with her constantly in her room and elsewhere in the hospital, to assist in her treatment and prevent her suicide. Heaford further alleges that Vines immediately attempted to initiate romantic relations with her by conduct that included hugging her and suggesting that he would kiss her as a reward for good behavior. Such conduct, Heaford alleges, is a breach of prevailing standards of care in the psychiatric field.
She also recites that Vines continued his seduction efforts throughout the course of her treatment while she was in a weakened mental and emotional state. She claims that Vines was an employee of the hospital at all times in question and that assigning Vines to watch Heaford, talk to her and assist her in daily living were part of the treatment provided by the hospital. She claims that the hospital was remunerated for these services and therefore they were within the scope of Vines' employment.
Heaford alleges that following her discharge to an outpatient facility affiliated with the hospital, Vines continued his attempts to seduce her by using the hospital's telephone and computer facilities to contact her during his work hours. On or about November 15, 2000, Vines allegedly contacted Heaford using the hospital's computer and requested a last meeting with her at the hospital under the guise that he was leaving the hospital's employment. On that date, when Heaford arrived at the hospital, she claims Vines escorted her to an office at the hospital where he pushed her to the floor, removed her clothing and had sexual intercourse with her. As a result of the sexual intercourse, Heaford became pregnant and gave birth to a child. She further claims the hospital ratified the wrongful conduct of Vines by ignoring her complaints and continuing his employment.
Her complaint sets forth four counts against the hospital and Vines. In counts one and three, the allegations are that the hospital is liable for Vines' wrongful conduct and malpractice. In counts two and four, she asserts claims against Vines for his wrongful conduct and malpractice. The hospital has moved to strike count one on the ground that Heaford fails to adequately allege that Vines was acting within the scope of his employment when he sexually assaulted her, and count three claiming that Heaford fails to adequately allege that Vines' misconduct was related to medical diagnosis and treatment.
"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 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff . . . If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997). On the other hand, a motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged. Fort Trumbull Conservancy, LLC. v. Alves, supra.
The hospital's response in the attack, appearing as count one, is that in order to hold an employer liable for the intentional torts of his employee, "the employee must be acting within the scope of his employment and in furtherance of the employer's business . . . But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply." (Citations omitted; internal quotation marks omitted.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 500-01 (1995). The vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business. "Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant's employment and was done to further his master's business . . . But there are occasional cases where a servant's digression from duty is so clear-cut that the disposition of the case becomes a matter of law." (Citations omitted; internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 207-10 (1990).
In support of its motion to strike, the hospital points to Gutierrez v. Thorne, 13 Conn. App. 493 (1988), wherein the court held that an employee's acts of sexual misconduct constituted an abandonment of an employer's business and was therefore outside the scope of employment as a matter of law. The court held that an aide, whose duties included assisting mentally retarded individuals with their daily life activities, clearly was not furthering his employer's business when he sexually assaulted the plaintiff, a mentally retarded individual. The fact that the aide was allegedly "on duty" at the time of the assaults did not create an inference that the employee was acting to further his employer's interest and ultimately the employer was not held liable under the theory of respondiate superior.
Heaford counters the hospital's reliance on Gutierrez with Mullen v. Horton, 46 Conn. App. 759, 765, 766-70 (1997), an example of a case in which the court found a question of fact existed as to whether an employee's sexual misconduct did occur in the furtherance of the employer's business. In Mullen the plaintiff sued a religious order whose priest entered sexual relations with the plaintiff during counseling sessions. The priest had weekly duties at a local parish but was also a psychologist with a private practice, the proceeds of which were contributed to the religious order in full in accordance with his vow of poverty. He also served as the staff psychologist for the religious order providing counseling during religious retreats. The priest began counseling the plaintiff and sexually exploited her during his church-sanctioned pastoral-psychological counseling sessions as well as while he staffed church retreats. In denying the religious order's motion for summary judgment, the court determined it could reasonably be seen that the "sexual relationship with the plaintiff was a misguided attempt at pastoral-psychological counseling, or even an unauthorized, unethical, tortious method of pastoral counseling, but not an abandonment of church business." This outcome was based partially on an affidavit of a clinical psychologist who stated that sexual relationships often mistakenly arise out of emotional therapeutic relationships because of the transference-counter transference phenomenon. In addition, the court noted that the order "did benefit monetarily from [the priest's] misguided counseling of the plaintiff."
"Transference is the term used by psychiatrists and psychologists to denote a patient's emotional reaction to a therapist and is generally applied to the projection of feelings, thoughts and wishes onto the analyst, who has come to represent some person from the patient's past . . . What the notion of transference assumes is that as therapy develops, and if therapy is working, the client comes to either consciously or unconsciously, or both, regard the therapist as a child might regard the parent . . . [W]hat happens when therapy is working . . . is that this transference relationship grows so that the client comes to experience the therapist as a powerful, benevolent parent figure . . . Transference is crucial to the therapeutic process because the patient unconsciously attributes to the psychiatrist or analyst those feelings which he may have repressed towards his own parents . . . [I]t is through the creation, experiencing and resolution of these feelings that [the patient] becomes well . . . Understanding of transference forms a basic part of the psychoanalytic technique. The proper therapeutic response is countertransference, a reaction which avoids emotional involvement and assists the patient in overcoming problems . . . Courts have uniformly regarded mishandling of transference as malpractice or gross negligence." (Citations omitted; internal quotation marks omitted.) Simmons v. United States, 805 F.2d 1363, 1364-65 (9th Cir. 1986).
The hospital's reliance on Gutierrez is misplaced and the present case is more like Mullen in that it is not clear that this is not "one of those exceptional cases in which the servant's digression from the duty is so clear cut that the disposition of the case is a matter of law." Heaford alleges that Vines was engaged in her treatment when he initiated a relationship with her as was the situation in Mullen. She specifically pleads that the hospital assigned the defendant Sean Vines to the Plaintiff to be with the Plaintiff constantly in her room and elsewhere in the hospital to assist in her treatment and to prevent her suicide.
Although Heaford alleges that at the time the sexual intercourse took place, she was discharged to an outpatient facility, and apparently was no longer under the supervision of Vines she contends Vines continued to use the hospital's facilities to further the relationship. Moreover, this facility was affiliated with the hospital and the sexual contact took place on hospital grounds. Finally, Heaford also alleges that the hospital received compensation for Vines' treatment of her. Based on the foregoing, Heaford's allegations are such that the issue of whether Vines was acting in furtherance of his employer's business cannot be determined in context of a motion to strike. See also Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 989 F. Sup. 110 (D.Conn. 1997); Bishop v. Paine Webber, Inc., Superior Court, judicial district of Danbury, Docket No. 331709 (July 28, 1999, Moraghan, J.) ( 25 CLR 173). Consequently, the motion to strike count one is denied.
The hospital claims in count three that Heaford failed to adequately allege that the hospital committed malpractice when Vines committed sexual misconduct against her. In count three, she alleges that the hospital is a medical care provider under § 52-184b of the General Statutes and that Vines, by virtue of his employment with the hospital, is a medical care provider under the same statute. Heaford continues that Vines was assigned to accompany Heaford and to assist in her recovery and that his conduct breached the prevailing standard of care for employees of medical care providers in failing to assist in her recovery or care for her and instead seducing her and having intercourse with her, and that the hospital is liable for his conduct as its employee.
Section 52-184b of the General Statutes provides in relevant part: "(a) For the purposes of this section, `health care provider' means any person, corporation, facility or institution licensed by this state to provide health care or professional services, or an officer, employee or agent thereof acting in the course and scope of his employment."
"[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." (Citations omitted; internal quotation marks omitted.) Gold v. Greenwich Hospital Ass'n, 262 Conn. 248, 254 (2002). "The rule of law that distinguishes between medical malpractice and ordinary negligence requires a determination of whether the injury alleged occurred during treatment because of a negligent act or omission that was substantially related to treatment." Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn. App. 353, 360, appeal dismissed, 258 Conn. 711 (2001). In the present case, although Heaford alleges that Vines was assigned to assist in her recovery, she does not allege facts that show that he rendered a medical diagnosis or treatment or exercised medical judgment in his conduct towards her.
Although Connecticut courts have not seen this issue very frequently, Petronio v. Burich, Superior Court, judicial district of New Britain, Docket No. 509130 (April 23, 2002, Wiese, J.) ( 32 CLR 156-58), embraces the general rule that a health care provider's sexual relationship with a patient is not substantially related to medical diagnosis or treatment, and therefore is not actionable as malpractice. In Petronio, the plaintiff alleged that the defendant nurse assigned to her while she was hospitalized, "covered the monitoring cameras in her hospital room, that he smiled and gestured inappropriately, that he initiated unwanted sexual and intimate contact all during catheterization procedures and that he subsequently initiated a personal relationship with her." In determining these actions were unrelated to and outside the realm of any conceivable medical care or treatment and therefore not medical malpractice, the court stated, "there is no medical malpractice where the jury need not be guided by medical experts in determining whether the defendant breached its duty of care to the patient and there are no esoteric or uniquely medical issue[s] to be determined . . . nor any complex issue requiring specialized knowledge . . ." (Internal quotation marks omitted.)
Several jurisdictions have treated cases involving medical malpractice and sexual misconduct similarly. See, e.g., Smith v. St. Paul Fire Marine Ins. Co., 353 N.W.2d 130 (Minn. 1984); South Carolina Medical Malpractice Liability Ins. Joint Underwriting Assn. v. Ferry, 291 S.C. 460, 354 S.E.2d 378 (S.C. 1987); Washington Ins. v. Hicks, 49 Wash.App. 623, 744 P.2d 625 (1987).
The courts have acknowledged a narrow exception to the principle that a health care provider's sexual misconduct is not malpractice in cases where the "medically negligent procedure is so inextricably intertwined and inseparable from the intentional conduct that [could serve] as the basis for the separate claim of a sexual assault." St. Paul Fire Marine Ins. Co. v. Shernow, 222 Conn. 823, 830 (1992) (because negligent dental procedure was inseparable from intentional conduct that served as the basis for the separate claim of sexual assault, the trial court properly determined that professional liability portion of the policy covered plaintiff's injuries because jury found that defendant negligently administered a drug, the drug was directly related to dental treatment in progress, that it caused permanent injury, and plaintiff's injuries resulted from tortious conduct that took place in the course of providing professional services). See also, Smith v. Christoforo, Superior Court, judicial district of New Haven, Docket No. 425766 (July 25, 2000, Alander, J.) (Where the complaint alleged that the defendant improperly massaged and fondled the plaintiff for the purported purpose of treating the plaintiff's anxiety disorder, the court held the defendant should have the opportunity to prove the sexual assault occurred under the guise of treatment and constitutes a failure to properly treat the patient.)
For each and all of the foregoing reasons, the allegations do not show that Vines' alleged negligence is of a specialized medical nature that arose out of a medical professional-patient relationship or that his alleged negligence is substantially related to a medical diagnosis or treatment and involved the exercise of medical judgment, the motion to strike count three is granted.
To reiterate, count one survives the motion to strike which, however, is granted as to count three.
MORAGHAN, JUDGE TRIAL REFEREE.