Opinion
No. CV02 047 02 62
December 4, 2003
MEMORANDUM OF DECISION RE MOTION TO STRIKE #118
Before the court is defendant Wolinksy-Friedlan, M.D.'s Motion to Strike Count Nine of plaintiff's Revised Complaint dated May 27, 2003, together with its applicable claim for relief.
On January 15, 2003, the plaintiff, Madeline Parker, filed an eleven-count revised complaint against the defendants, alleging that she sustained injuries and losses while under the defendants' care for multiple sclerosis. Specifically, the plaintiff alleges that the defendants treated her with an experimental drug, Sodium 2, 3-dimercaptopropane-I-sulfonate (DMPS), which the Federal Food and Drug Administration (FDA) has not yet approved for the treatment of multiple sclerosis. The plaintiff further alleges, that, as a result of the DMPS treatment, she suffered poisoning, significant digression in her multiple sclerosis and intestinal complications.
The plaintiff, Madeline Parker, brings this action against seven defendants, Marcie Wolinsky-Friedlan, M.D. (Wolinsky-Friedlan), Wolinsky-Friedlan, as partner of Integrated Medical Arts (IMA), Robban Sica, M.D. (Sica), Sica, as medical director of the Center for the Healing Arts (CHA), Sica, as partner of IMA, Sica, d/b/a IMA, and the CHA. Counts one through four allege negligence/medical malpractice against the defendants Wolinsky-Friedlan, Sica, IMA and CHA, respectively. Counts five through eight allege lack of informed consent by the defendants Wolinsky-Friedlan, Sica, IMA and CHA, respectively. Counts nine through eleven allege a violation of General Statutes § 42-110a, Connecticut Unfair Trade Practices Act (CUTPA), by the defendants Wolinsky-Friedlan, IMA, and CHA and Sica as officer and shareholder, respectively.
On February 25, 2003, the defendant, Wolinsky-Friedlan, filed a motion to strike count nine of the revised complaint, along with the corresponding prayer for relief. In count nine, the plaintiff alleges that the defendants violated CUTPA, by engaging in the entrepreneurial activity of providing alternative medical services and products. The defendant moves to strike count nine on the ground that the plaintiff has failed to state a claim upon which relief can be granted, in that she has simply recast her negligence/medical malpractice claim as a CUTPA violation. Pursuant to Practice Book § 10-42, the defendant filed a memorandum of law in support of the motion to strike. On June 20, 2003, the plaintiff filed a memorandum of law in opposition.
This motion to strike (#118) is brought only by Marcie Wolinsky-Friedlan, hereinafter referred to as the defendant.
"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 . . . and, consequently, requires no factual findings by the trial court." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike admits all CT Page 13452 facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, 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., supra, 580. "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498.
In support of her motion to strike, the defendant argues that the plaintiff has recast her negligence/medical malpractice claim as a CUTPA claim without alleging any new or different facts. The defendant also argues that paragraphs thirty-two and thirty-three of the plaintiff's revised complaint are legal conclusions that are not supported by facts sufficient to demonstrate an entrepreneurial enterprise, as is required under CUTPA. Additionally, the defendant asserts that, although the defendant charged the plaintiff fees for the DMPS treatment, this act alone does not transform the medical services into an entrepreneurial enterprise.
"The conduct of the [defendant] was immoral, unethical, abusive, and in contravention of public policy." (Revised Complaint, Count Nine, ¶ 32.)
"The conduct of the [defendant] was and is unfair trade practice in violation of Connecticut General Statutes 42-110a et. seq." (Revised Complaint, Count Nine, ¶ 33.)
The plaintiff counters that she has pleaded sufficient facts in the revised complaint to support her CUTPA claim, i.e., that the defendant engaged in "an entrepreneurial enterprise of providing alternative medical products and services . . ." (Revised Complaint, Count Nine, ¶ 20.) Specifically, the plaintiff relies on paragraphs twenty-one though thirty-one of the revised complaint (count nine) to demonstrate that the defendant's alleged conduct falls outside the realm of traditional medicine and within the sphere of an entrepreneurial enterprise. The plaintiff also makes two additional arguments. First, the plaintiff argues that the defendant's motion to strike should be barred on procedural grounds because it was filed more than five months after the revised complaint was filed. Second, the plaintiff argues that the defendant is presumed to be engaged in an entrepreneurial enterprise when the defendant's activity involves the selling and profiting of alternative medicine and services that are not recognized by the traditional medical profession.
"When any pleading is amended the adverse party may plead thereto within the time provided by [Practice Book] section 10-8 . . ." Traggis v. Shawmut Bank of Connecticut, N.A., 72 Conn. App. 251, 272, 805 A.2d 105, cert. denied, 262 Conn. 903, 810 A.2d 270 (2002). "Commencing on the return day of the writ, summons and complaint in civil actions, pleadings, including motions and requests addressed to the pleadings, shall first advance within thirty days from the return day, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the judicial authority thereon if one is required . . ." Practice Book § 10-8.
Here, the plaintiff filed the revised complaint on January 15, 2003, and the defendant filed her motion to strike on May 30, 2003. Therefore, the defendant's motion is untimely on its face. "[T]he law is well established [however] that the court has discretion as to whether it will consider the merits of an untimely motion. [A]lthough a motion to strike may appear untimely on its face, the court has discretion to permit a late pleading where the parties have both submitted arguments on the merits." (Internal quotation marks omitted.) Huntington Condominium v. Jackson, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 01 0384036 (October 10, 2002, Stevens, J.). In determining whether to exercise this discretion, this court has held that where the parties have argued the merits of the motion, the interest of judicial economy supports the exercise of the court's discretion in considering the motion to strike despite its untimeliness. See People's Bank v. Scarpetti, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 987 0345123 (February 5, 1998, Skolnick, J.) ( 21 Conn. L. Rptr. 357). In the present case, the court heard oral argument on the motion to strike and the parties filed memoranda in support of their respective positions. Furthermore, the plaintiff did not file a motion for default for the defendant's failure to plead. These factors and considerations convince the court that it should exercise its discretion and consider the merits of the motion to strike.
Practice Book § 10-18 states that "[p]arties failing to plead according to the rules and orders of the judicial authority may be nonsuited or defaulted, as the case may be."
"[T]he touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services is implicated . . . Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation. To hold otherwise would transform every claim for medical malpractice into a CUTPA claim. Accordingly, within this framework, [a court] must review the plaintiff's allegations of CUTPA violations and look to the underlying nature of the claim to determine whether it is really a medical malpractice claim recast as a CUTPA claim." (Emphasis added.) Janusauskas v. Fichman, 264 Conn. 796, 809, 826 A.2d 1066 (2003), quoting Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 38, 699 A.2d 964 (1997).
In the present case, the plaintiff argues that the revised complaint sets forth sufficient facts to establish a CUTPA claim independent of her negligence/medical malpractice claim. In support, the plaintiff argues that the defendant made material misrepresentations to the plaintiff that the DMPS treatment was part of an ongoing medical trial and was effective in treating the plaintiff's medical condition. The plaintiff also argues that the defendant's medications caused the high levels of mercury in the plaintiff's urine, which elevated levels were then used by defendant to induce the plaintiff into submitting to the DMPS treatment. Finally, the plaintiff claims that the defendant "intentionally withheld information and did not fully disclose the potential dangers and risks to the [plaintiff] of purchasing the product and services of DMPS treatment." (Revised Complaint, Count Nine, ¶ 31.)
In Janusauskas v. Fichman, supra, 264 Conn. 796, the Supreme Court addressed a CUTPA claim in the medical malpractice context. In that case, the plaintiff brought suit against the defendant ophthalmologist claiming medical malpractice and lack of informed consent, breach of contract and a CUPTA violation. Id., 801. The plaintiff's CUTPA claim was based on the "defendant's advertisements and misrepresentations concerning the defendant's ability to correct visual deficiencies in general, and with respect to the plaintiff in particular." Id., 808. The court concluded that the plaintiff's argument that the defendant made misrepresentations, in themselves, do not implicate CUTPA, but, rather, the doctrine of informed consent, which falls under medical malpractice. Id., 811. "Informed consent requires a physician to provide the patient with the information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy . . . [If] these representations fail to satisfy the requirement of informed consent, and harm results, the remedy would be based upon malpractice, and not CUTPA." (Citations omitted; internal quotation marks omitted.) Id., 810-11.
Likewise, in Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 17, the Supreme Court addressed a CUTPA claim in the medical malpractice context against a hospital. The plaintiff brought suit on behalf of the decedent against Yale-New Haven Hospital for medical malpractice and a CUTPA violation. Id., 21. The plaintiff alleged that the defendant "engaged in unfair and deceptive trade practices because, although the hospital was certified as a major trauma center, it had failed to meet the requisite standards of care for such a center . . ." Id. The court concluded that "[if a defendant] fails to meet the standard of care and harm results, the remedy is not one based upon CUTPA, but upon malpractice." Id., 39.
As in Janusauskas and Haynes, the plaintiff in her CUTPA claim relies on the defendant's alleged misrepresentations. The plaintiff attempts to distinguish the defendant's misrepresentations from her medical malpractice claim by arguing, more or less, that the misrepresentations transcended medical negligence, and amounted to an unfair and fraudulent commercial practice. Besides the alleged misrepresentations, however, the plaintiff provides no facts to support the allegation that the defendant is engaged in an unfair and fraudulent commercial practice.
The Supreme Court has stated that "although physicians and other health care providers are subject to CUTPA, they may be liable only for unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of the entrepreneurial, commercial, or business aspect of the practice of medicine . . . The practice of medicine may give rise to a CUTPA claim only when the actions at issue are chiefly concerned with entrepreneurial aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the competence of and strategy employed by the . . . defendant." (Citation omitted; emphasis in original; internal quotation marks omitted.) Janusauskas v. Fichman, supra 264 Conn. 808-09. In this case, rather than alleging facts related to the billing or business practice of the defendant's medical services, the plaintiff recasts her negligence/medical malpractice claim as a CUTPA violation by merely alleging that the treatment complained of was outside of traditional medical practice.
The plaintiff argues, nevertheless, that when a defendant sells or profits from holistic or alternative medicine, i.e., DMPS treatment that is not yet approved by the FDA, the defendant is presumed to be engaging in a commercial activity. For several reasons, the plaintiff's argument fails. First, the plaintiff cites no legal authority in her memorandum in opposition to support her argument. The Practice Book requires that "[e]ach motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies." Practice Book § 10-42.
Additionally, the use of holistic or alternative medicine, by itself, does not transform a medical treatment practice into a commercial enterprise. In Johnson v. Skowron, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 0354780 (July 28, 2000, Skolnick, J.), this court did not presume that the defendant was engaged in a commercial enterprise when the defendant sold the plaintiff Chinese pills at a 100 percent profit to treat the plaintiff's lung cancer. Instead, this court in Johnson concluded that the plaintiff failed to plead with sufficient particularity how the defendant's sale of Chinese pills amounted to an entrepreneurial or commercial aspect of the defendant's medical profession. Id. As in Johnson, the defendant's use of the DMPS treatment does not transform the defendant's medical services into a commercial or entrepreneurial enterprise. Under a CUTPA claim, a plaintiff must plead with "particularity to allow evaluation of the legal theory upon which the claim is based." (Internal quotation marks omitted.) Id. The plaintiff, in this case, has not established how the defendant's use of the DMPS treatment is a commercial or entrepreneurial aspect of the defendant's medical services. Thus, the plaintiff has failed to plead with particularity a commercial or entrepreneurial enterprise of the defendant's medical services to support a CUTPA claim.
For the foregoing reasons, the defendant's motion to strike as to count nine of the plaintiff's revised complaint and the corresponding prayer for relief because the plaintiff fails to allege a claim under CUTPA is granted.
SKOLNICK, JUDGE.