Opinion
No. CV 030567614
July 11, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The issues to be decided in the motion to strike consist of whether the court should grant the defendants' motion to strike counts four, seven and ten of the plaintiff's amended complaint, dated November 24, 2004, on the grounds that: (1) Counts four and seven "are insufficient as a matter of law because they fail to allege sufficient facts to state claims based on willful, wanton and reckless conduct"; and (2) count ten "is legally insufficient because it fails to allege facts sufficient to establish negligence per se."
On November 24, 2004, the plaintiff, Ruth Lancaster, administratrix of the estate of Theodore St. Peirre, filed a ten-count amended complaint against multiple defendants. The plaintiff alleges in counts four and seven that the defendants, Carol Lochert (Lochert), a nurse, and Lawrence Chong (Chong), a physician, respectively, were reckless in their conduct in treating Theodore St. Peirre, the decedent, which resulted in the decedent's death. Specifically, the plaintiff alleges that a feeding mechanism was improperly placed into the person of the decedent. The plaintiff alleges negligence per se in count ten as to the defendant, Gaylord Hospital (hospital), for violating the Regs., Connecticut State Agencies § 19-13-D5(d)(3) and (e)(1); and 42 C.F.R. §§ 482.22, 482.23(b) and 482.24(c) of the Codes of Federal Regulations. In count ten, the plaintiff claims damages pursuant to General Statutes § 52-555.
There are multiple defendants named in the present case, however, only the defendants, Carol Lochert, Lawrence Chong and Gaylord Hospital are relevant to the motion strike, as they are named in counts four, seven and ten of the amended complaint, respectively.
The plaintiff concedes in his memorandum of law in opposition to the motion to strike that only Regs., Connecticut State Agencies § 19-13-D5(d)(3) and (e)(1) and the federal regulations cited in count ten may state a claim for negligence per se. All other regulations cited in count ten are too broad to support claims for negligence per se.
On January 26, 2005, the defendants, Lochert, Chong and the Hospital, filed a motion to strike counts four, seven and ten of the plaintiff's amended complaint on the grounds that: (1) Counts four and seven "are insufficient as a matter of law because they fail to allege sufficient facts to state claims based on willful, wanton and reckless conduct"; and (2) count ten "is legally insufficient because it fails to allege facts sufficient to establish negligence per se." On February 23, 2005, the plaintiff filed a memorandum of law in support of its objection to the defendant's motion to strike.
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). A motion to strike "consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2003). In addition, "[t]he court must construe the facts in the complaint most favorably to the plaintiff" (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . ." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
This court has previously found that: "To determine whether the plaintiffs' amended complaint states a cause of action sounding in recklessness, we look first to the definitions of willful, wanton and reckless behavior. Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . .
"While we have attempted to draw definitional distinctions between the terms willful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." Petner v. Electrical Contractors, Inc., Superior Court, judicial district of New London, Docket No. CV 04 0569450 (March 18, 2005, Jones, J.), quoting Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003).
"Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted . . . [A] brief reference to recklessness, contained within a count which otherwise is clearly limited to ordinary negligence is [not] sufficient to raise a claim of reckless and wanton misconduct. Simply using the word `reckless' or `recklessness' is not enough . . . Some additional factual allegations are necessary to alter the nature of the conduct complained of from an action for negligence to action for willful and wanton conduct . . . If the plaintiff merely reiterates the facts from the negligence count and inserts the word `reckless,' a motion to strike is properly granted . . . If, however, the factual allegations in the negligence count are detailed and specific enough to support a claim of recklessness, the motion to strike may be denied." (Citations omitted; internal quotation marks omitted.) Petner v. Electrical Contractors, Inc., supra, Superior Court, Docket No. 04 0569450.
In Stravitsch v. Nestle USA, Inc., 49 Conn.Sup. 278, 874 A.2d 340 (2005), the plaintiff suffered serious injury when a commercial vehicle, owned and driven by the defendants, collided with the plaintiff's vehicle. The plaintiff claimed, inter alia, that the defendants were reckless in their disregard of federal and state vehicle requirements and the safety of persons. Id., 284-85. The defendants argued that the counts alleging recklessness were replicative of the allegations in the plaintiff's negligence claim, and moved to strike those counts. The court found that even though the recklessness counts were convoluted with language appropriately found in negligence claims, the plaintiff, nevertheless, alleged that the defendants "knew" that their employee did not have a commercial driver's license or proper training, and despite this consciousness, the defendant permitted their employee to drive the commercial vehicle. The court, in denying the motion to strike, held that under these circumstances the counts alleging recklessness were not vulnerable to a motion to strike. Id., 286-87. See also Janney v. Genesis Health Ventures, Inc., Superior Court, judicial district of New London, Docket No. 562575 (August 14, 2003, Hurley, J.T.R.) (where the count found that the plaintiff's allegations that a healthcare facility was aware of the plaintiff's condition, yet chose to provide inadequate care and refused to treat ailments, were sufficient allegations to state a cause of action for recklessness).
In the present case, the plaintiff alleges in count four that Lochert knew that the decedent was extremely hypotensive, tachycardic, tachypneic, and was vomiting. Despite the decedent's condition, the plaintiff alleges that Lochert failed to arrange for immediate transfer of the decedent to an acute care facility. The plaintiff further alleges that once Lochert determined the decedent had to be transferred, she failed to arrange the transfer for nearly two and a half hours. Moreover, the plaintiff alleges that Lochert believed that a feeding tube inserted into the decedent was misplaced, but failed to direct its removal.
In count seven, the plaintiff alleges that Chong, the physician, became aware of the decedent's life-threatening condition. Despite this recognition, the plaintiff alleges that Chong failed to transfer decedent to an acute care facility, but instead delegated the decedent's health care to the nursing staff. The plaintiff further alleges that once Chong recognized the need to transfer the decedent, he failed to arrange for the transfer for nearly two and a half hours.
In the present case, the facts, as alleged, go beyond mere thoughtlessness, inadvertence, or simply inattention. "Recklessness . . . requires knowledge, or what has been described as a state of consciousness with reference to the consequences of one's acts . . . [T]here must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them." (Citations omitted; internal quotation marks omitted.) Stravitsch v. Nestle USA, Inc., supra, 49 Conn.Sup. 286. Here, as in Stravitsch, the plaintiff alleges that Lochert and Chong had knowledge of the decedent's dire condition, and despite this consciousness, failed to treat or transfer the decedent for proper care in a timely manner. It is therefore submitted that the actions of Lochert and Chong do rise to an extreme departure of ordinary care, in a situation where a high degree of danger was apparent. The motion to strike counts four and seven should be denied.
In count ten, the plaintiff alleges that the hospital was negligent per se for violation of Regs., Connecticut State Agencies § 19-13-D5(d)(3) and (e)(1); and 42 C.F.R. §§ 482.22, 482.23(b) and 482.24(c) of the Code of Federal Regulations. The defendants argue that the regulations relied on by the plaintiff do not address the injury sustained by the plaintiff, do not establish any code of conduct, or that the regulations are too broad to establish a claim for negligence per se. The plaintiff argues in opposition that the regulations are all specific and result-oriented and are directly linked to the health and welfare of patients. Moreover, the regulations were established to protect against the very dangers that ultimately caused the decedent's death.
"[U]nder general principles of tort law, a requirement imposed by statute may establish the applicable standard of care to be applied in a particular action. It is well established that [i]n order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions. First, the plaintiff must be within the class of persons protected by the statute . . . Second, the injury must be of the type which the statute was intended to prevent." (Citations omitted; internal quotation marks omitted.) Gore v. People's Savings Bank, 235 Conn. 360, 375-76, 665 A.2d 1341 (1995). In the present case, the plaintiff alleges, inter alia, in count ten, by incorporation of paragraphs one through seven of count nine, that the hospital did not have any protocols in place governing charting of the patients' vital signs, input and outflow of patients being fed via a feeding tube, or oversight of the placement of feeding tubes. Moreover, the plaintiff alleges that the hospital violated federal codes by failing to have adequate medical staff cover, by failing to supervise and evaluate nursing care for each patient, and by failing to ensure that the medical records were accurate and complete in order to describe patients' progress and response to services and medications.
The regulations cited by the plaintiff in count ten relate to the treatment or the administration of patients' health or records. Therefore, the regulations address patients as the class of persons intended to be protected by the regulations: a class to which the decedent was a member. Moreover, the regulations are intended to prevent complications or injuries arising from basic hospital functions, which includes monitoring and record-keeping of patients' conditions and providing adequate and qualified personnel to attend to patients. Therefore, the plaintiff's decedent satisfies the two conditions to establish liability for negligence per se. See Herbert v. Frontier of Northeast Connecticut, Inc., Superior Court, judicial district of Windham at Putnam, Docket No. CV 01 0065465 (January 29, 2004, Swienton, J.) (where the court found that the plaintiff sufficiently alleged statutory negligence relying on the code of federal regulations that governed the standard of care for nursing homes).
See, e.g., 42 C.F.R. § 482.23(b) which provides in part: "There must be supervisory and staff personnel for each department or nursing unit to ensure, when needed, the immediate availability of a registered nurse for bedside care of any patient." See also 42 C.F.R. § 482.24(c)(2)(vi) which provides in part that records must document the following: "All practitioners' orders, nursing notes, reports of treatment, medication records, radiology, and laboratory reports, and vital signs and other information necessary to monitor the patient's condition." Both regulations have been cited by the plaintiff in count ten.
Conclusion
For all the foregoing reasons, the defendants' motion to strike counts four, seven and ten of the plaintiff's amended complaint should be and hereby is denied.
Clarance J. Jones, Judge