Opinion
HHDCV176082676S
01-14-2019
Taryn RAMSDELL v. HARTFORD HOSPITAL et al.
UNPUBLISHED OPINION
OPINION
MATTHEW DALLAS GORDON, J.
The defendant, Connecticut Children’s Medical Center (Medical Center) has filed a motion to strike counts one through four of the plaintiff’s complaint alleging, respectively, negligent infliction of emotional distress, negligent misrepresentation, breach of contract, and invasion of privacy. The defendant Hartford Hospital (Hospital) has filed a motion to strike the second, third, and fourth counts of the plaintiff’s complaint. For the reasons explained, the court denies Medical Center’s motion to strike the first count and grants the motions to strike filed by both Medical Center and Hospital regarding counts two, three and four.
Facts and Procedural History
The plaintiff’s complaint alleges that Medical Center and Hospital were "specially-chartered corporations organized and existing under the laws of the State of Connecticut, operating a hospital in Hartford, Connecticut, providing in-patient hospital care, including neo-natal intensive care services, to the general public." Compl. ¶ 1. The complaint also alleges that on or about October 6, 2015, the plaintiff "was a patient at the Defendants ... where she gave birth to her daughter, Kali Nelson." Compl. ¶ 2. "Thereafter, through and including November 17, 2015, the Plaintiff’s daughter was admitted to the neo-natal intensive care unit (‘NICU’) at the Defendants ..." Compl. ¶ 3. "As part of the care and treatment of Kali Nelson in the NICU, the Plaintiff’s medical history was included in the medical records for her infant daughter." Compl. ¶ 4. "Said medical history was factually inaccurate as to the Plaintiff’s prior conditions and contained private information." Compl. ¶ 5. "Said medical records were left unsecured in the NICU near the baby’s isolette by the Defendants ... their agents, servants and/or employees." Compl. ¶ 6. "At some point after October 6, 2015 and prior to November 17, 2015, the father of Kali Nelson and his family members were able to view the unsecured medical information in Kali Nelson’s chart, which contained the Plaintiff’s inaccurate medical history, as well as her private medical information, without the Plaintiff’s knowledge or permission, causing her to sustain and suffer emotional distress, great embarrassment, humiliation and causing her to lose custody of her daughter." Compl. ¶ 7.
Legal Standard
"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). "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.) Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006). "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.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ..." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). In analyzing the defendants’ motions, and the plaintiff’s various objections, the court is required to construe the plaintiff’s complaint in the manner most favorable to sustaining its legal sufficiency. Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350-51, 71 A.3d 480 (2013).
Analysis
1. Negligent Infliction of Emotional Distress
"To prevail on a claim of negligent infliction of distress, the plaintiff is required to prove that (1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff’s distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the plaintiff’s distress." (Internal quotation marks omitted.) Hall v. Bergman, 296 Conn. 169, 183, 994 A.2d 666 (2010).
Medical Center asserts that the plaintiff’s claim of negligent infliction of emotional distress is insufficient as a matter of law because Medical Center did not owe the plaintiff any duty of loyalty or confidentiality. It is Medical Center’s position that the plaintiff’s reliance on Byrne v. Avery Center for Obstetrics & Gynecology, P.C., 327 Conn. 540, 175 A.3d 1 (2018), wherein the Supreme Court recently recognized a common-law cause of action based on a healthcare provider’s alleged breach of the duty of confidentiality regarding its patient’s medical records while complying with a third-party subpoena, is misplaced. In Byrne, Medical Center argues, there was no question that the plaintiff was a patient of the defendant healthcare provider, whereas the plaintiff in this case was not Medical Center’s patient. Medical Center also contends that the plaintiff had no right of privacy or confidentiality in connection with her daughter’s medical records, and that any duty of loyalty and confidentiality was owed to the daughter in her capacity as Medical Center’s patient, not to the plaintiff.
The court agrees that any duty of confidentiality owed to the plaintiff by Medical Center must arise from the healthcare provider/patient relationship, not from the plaintiff’s relationship with her daughter. See, e.g., Abbhi v. AMI, Superior Court, judicial district of New Haven, Docket No. CV-96-0382195-S (June 3, 1997, Silbert, J.) (19 Conn.L.Rptr. 493) (1997 WL 325850).
In Abbhi, the plaintiff alleged that the defendant physicians and members of their medical practice knew or should have known that their failure to properly instruct, advise, and consult with the plaintiff regarding how to respond when and if the plaintiff’s daughter experienced an anaphylactic reaction to peanuts created an unreasonable risk of harm to the daughter and an unreasonable risk of distress to the plaintiff in her capacity as the child’s mother. The plaintiff also claimed that when her daughter ultimately did experience an anaphylactic reaction to peanuts, the plaintiff was helpless to respond and suffered extreme emotional distress as a result.
In dismissing the plaintiff’s claim of negligent infliction of emotional distress, the Abbhi court observed that the plaintiff’s complaint did not assert that any of the defendants were actually providing medical care and treatment to the plaintiff at any time pertinent to allegations of the complaint, and that the plaintiff’s claim that the risk of harm to her was foreseeable was insufficient to establish that the duty the defendants owed to the daughter as their patient also ran to the plaintiff in her capacity as the daughter’s mother. Id., *17. According to the court, "[t]he plaintiff suggests that to allow emotional distress claims where the child is in utero, but not following birth, creates an artificial distinction between antenatal and postnatal concern, responsibility and involvement of a mother toward her child and manifests a basic misunderstanding of the relationship between mother and child, the closest and most precious of relationships ... The distinction, however, is not so much based on whether the child is in or out of the womb as it is on whether the parent is a recipient of the physician’s care. While the child is in utero, the mother as well as the unborn child are the subjects of the physician’s duty. Although under some circumstances the doctor-patient relationship with the mother, and hence the duty toward her, may continue for a period of time after birth, depending on the mother’s condition, at some point it becomes apparent that only the child is the patient." (Citation omitted; internal quotation marks omitted.) Id., *17.
In Ravalese v. Lertora, Superior Court, judicial district of Hartford, Docket No. CV- 13- 6042237-S (September 25, 2014, Huddleston, J.) (2014 WL 5471986), the court struck a claim of negligent infliction of emotional distress asserted against a psychologist who had treated the plaintiff’s minor child during protracted litigation between the plaintiff and his ex-wife. The plaintiff’s complaint alleged that the psychologist disclosed confidential information about the plaintiff in violation of General Statutes § 52-146c, which provides for privileged communications between a psychologist and a patient, in a report released to the child’s mother characterizing the plaintiff as a child abuser and a sociopath. The court concluded that the plaintiff’s allegation of negligent infliction of emotional distress was insufficient as a matter of law because the defendant’s statutorily imposed duty of confidentiality was owed only to the defendant’s patient, the minor child, not the plaintiff in his capacity as the child’s parent. According to the court, "[i]n providing mental health services to a child, a psychologist may be required to form opinions about factors affecting the child, including the child’s relationship with his or her parents. To impose a duty on the psychologist to refrain from expressing those opinions would infringe on [the psychologist’s] duty to her patient, the child. Our Supreme Court has repeatedly and consistently held that medical and mental health providers do not owe a duty of care to third parties in circumstances such as these. See, e.g., Jarmie v. Troncale, 306 Conn. 578, 605-15, 50 A.3d 802 (2012) (physician owed no duty to protect pedestrian from consequences of patient’s driving in impaired physical condition); Jacoby v. Brinckerhoff, 250 Conn. 86, 95-100, 735 A.2d 347 (1999) (psychiatrist owed no duty to spouse of patient for harm allegedly arising from patient’s treatment); Zamstein v. Marvasti, 240 Conn. 549, 561, 692 A.2d 781 (1997) (psychiatrist owed no duty, when evaluating child for possible sexual abuse, to avoid harm to person suspected of committing abuse) ..." (Citation omitted.) Ravalese v. Lertora, supra, *3. The court also observed that, "In Jarmie, one of the most recent cases to raise the issue of health care providers’ duties to third parties, the Supreme Court explained the compelling public policy concerns that have led it to reject such a duty. It began with the premise that physicians owe a duty of ‘undivided loyalty’ to their patients ...‘Undivided loyalty’ means that the patient’s well-being must be of paramount importance in the mind of the physician ... Consistent with this view, we have stated that, [a]s a matter of public policy ... the law should encourage medical care providers ... to devote their efforts to their patients ... and not be obligated to divert their attention to the possible consequences to [third parties] of medical treatment of the patient ... With respect to considerations of child abuse, the Supreme Court has similarly stated that imposing such a duty [to a suspected abuser] creates too high a risk that, in close cases, mental health professionals would conclude that no ... abuse had occurred because they feared potential liability to the suspected abusers, rather than because of their professional judgment that, in all likelihood, no abuse had occurred." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., *4.
Although the plaintiff’s complaint does not specifically allege that Medical Center was providing medical care to the plaintiff when the daughter’s father and other members of his family allegedly viewed the daughter’s medical chart, the complaint does allege that on or about October 6, 2015, the plaintiff "was a patient at the Defendants, HARTFORD HOSPITAL and CONNECTICUT CHILDRENS MEDICAL CENTER, where she gave birth to her daughter, Kali Nelson"; Compl. ¶ 2; and that "[t]hereafter, through and including November 17, 2015, the Plaintiff’s daughter was admitted to the neo-natal intensive care unit (‘NICU’) at the Defendants, HARTFORD HOSPITAL and CONNECTICUT CHILDRENS MEDICAL CENTER." Compl. ¶ 3.
Construing the plaintiff’s complaint in the manner most favorable to sustaining its legal sufficiency, Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, supra, 309 Conn. 350-51, the court concludes that Medical Center’s motion to strike must be denied because the complaint alleges that the plaintiff was a patient of both Medical Center and Hospital. "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... 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 ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Id., 350.
Although Medical Center may eventually prove that the plaintiff was not its patient at any time relevant to her complaint, in which case Medical Center may well succeed in defeating the plaintiff’s cause of action for negligent infliction of emotional distress based on the important public policy considerations underlying a healthcare provider’s duty of undivided loyalty to its patient, see Jarmie v. Troncale, supra, 306 Conn. 606, the court cannot at this stage of the proceedings conclude that the plaintiff’s complaint is legally insufficient as a matter of law given that the complaint specifically alleges that the plaintiff was the Medical Center’s patient.
2. Negligent Misrepresentation
The second count of the plaintiff’s complaint incorporates paragraphs 1-7 of the first count, and then alleges that Hospital and Medical Center, "through their privacy policy, represented to the Plaintiff that the privacy of her medical information would be protected in accordance with the law." Compl. ¶ 8. The second count also alleges that "[b]y allowing said private medical information to be viewed by unauthorized persons, the Defendants, their agents, servants and/or employees, negligently misrepresented their privacy policy, thereby causing the Plaintiff to suffer great humiliation, embarrassment and emotional distress and causing her to lose custody of her daughter." Compl. ¶ 9. Both Medical Center and Hospital claim that these allegations are legally insufficient because the complaint fails to allege that the defendants had the "present intent" not to fulfill the promises allegedly made in their privacy policy.
"To establish liability for negligent misrepresentation, a plaintiff must be able to demonstrate by a preponderance of the evidence: (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." (Emphasis in original; internal quotation marks omitted.) Brown v. Otake, 164 Conn.App. 686, 706, 138 A.3d 951 (2016). "Although the general rule is that a misrepresentation must relate to an existing or past fact, there are exceptions to this rule, one of which is that a promise to do an act in the future, when coupled with a present intent not to fulfill the promise, is a false representation." (Internal quotation marks omitted.) Id.
The second count of the plaintiff’s complaint does not allege that Hospital or Medical Center knew that the representation in their privacy policy that the plaintiff’s medical information "would be protected in accordance with the law" was false. The second count also fails to allege that the plaintiff reasonably relied on the defendants’ alleged misrepresentation in any respect. The court therefore concludes that the second count of the plaintiff’s complaint is legally insufficient to support a claim of negligent misrepresentation and therefore orders the second count stricken.
3. Breach of Contract
Hospital and Medical Center assert that the third count of the plaintiff’s complaint, alleging breach of contract, is legally insufficient because the alleged promise to protect the privacy of the plaintiff’s medical information "in accordance with the law" does not constitute sufficient consideration to support an enforceable contract. "In order to form a binding and enforceable contract, there must exist an offer and an acceptance based on a mutual understanding by the parties ... The mutual understanding must manifest itself by a mutual assent between the parties ... Further, the contract must be definite and certain as to its terms and requirements." (Citations omitted.) Steinberg v. Reding, 24 Conn.App. 212, 214, 587 A.2d 170 (1991). The plaintiff does not allege that she had a mutual understanding with Hospital and Medical Center to be bound by contract with them. Instead, the complaint alleges only that Hospital and Medical Center violated their privacy policy by disclosing the plaintiff’s protected health information without her authorization.
The plaintiff’s complaint also fails to allege that the plaintiff provided Hospital and Medical Center with any consideration in connection with their alleged contractual obligation to protect her confidential medical information. "The doctrine of consideration is fundamental in the law of contracts, the general rule being that in the absence of consideration an executory promise is unenforceable ... Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made." (Citation omitted; internal quotation marks omitted.) Gianetti v. Norwalk Hospital, 211 Conn. 51, 61, 557 A.2d 1249 (1989). "It is axiomatic that in the absence of consideration, there is no contract." Acton CATV, Inc. v. Wildwood Partners, Ltd., 19 Conn.App. 235, 238 n.2, 561 A.2d 976 (1989). "Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made." (Internal quotation marks omitted.) Gianetti v. Norwalk Hospital, supra, 61. "The general rule is that a promise to do something which the promissor is already legally obligated to do does not constitute consideration." (Emphasis added; internal quotation marks omitted.) Id. "If the department of health had not intended that the hospital abide by its medical staff bylaws, then the requirement that it enact such bylaws would be superfluous. Therefore, because the hospital has this preexisting legal duty to adopt and abide by its medical staff bylaws, that hospital’s agreement to do just that cannot constitute valid consideration to support an enforceable contract." Id., 60.
The court concludes that the third count of the plaintiff’s complaint is legally insufficient to support a claim of breach of contract because the promise allegedly made by Hospital and Medical Center to do what they were already required to do "in accordance with the law" does not constitute valid consideration. See, e.g., Gianetti v. Norwalk Hospital, supra, 211 Conn. 60-61. Absent valid consideration, an enforceable contract does not exist. Id. For these reasons, the third count of the plaintiff’s complaint is hereby stricken.
4. Invasion of Privacy
The fourth count of the plaintiff’s complaint alleges that "[t]he plaintiff had an expectation of privacy of her confidential medical information and the allowing of said information to be viewed by unauthorized persons was an unreasonable intrusion upon her seclusion, caused undue publicity to be given to her private life, and placed her in a false light before the public, thereby causing the Plaintiff to suffer damages, including great humiliation, embarrassment and emotional distress and causing her to lose custody of her daughter."
Connecticut first recognized a cause of action for invasion of privacy in the case of Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982). In Goodrich, the Supreme Court noted that the right to privacy is defined as "the right to be let alone." Id., 125. The Appellate Court recently elaborated on this concept by explaining: "[o]ur Supreme Court has observed that the law of privacy has not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be [left] alone." (Internal quotation marks omitted.) Davidson v. Bridgeport, 180 Conn.App. 18, 29, 182 A.3d 639 (2018). "The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts § 652A as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other’s name or likeness; (c) unreasonable publicity given to the other’s private life; or (d) publicity that unreasonably places the other in a false light before the public." Goodrich v. Waterbury Republican-American, Inc., supra, 128.
The plaintiff alleges that Hospital and Medical Center are liable under the first, third and fourth categories of invasion of privacy in that they allowed the daughter’s father and other members of his family to view information about the plaintiff that was contained in the daughter’s medical chart. In support of their motions to strike, Hospital and Medical Center assert that the plaintiff’s invasion of privacy claims are legally insufficient because (1) the defendants cannot be held liable for another’s intrusion on the plaintiff’s seclusion; (2) the plaintiff cannot satisfy the element of "publicity" required for a claim based on unreasonable publicity of a private fact; and (3) although the plaintiff’s complaint alleges that the information regarding the plaintiff’s medical history was factually inaccurate, the complaint fails to allege that the information misrepresented the plaintiff’s character, history, activities or beliefs to such a degree that a reasonable person in the plaintiff’s position would have taken offense.
a. Intrusion Upon Seclusion
Section 652B of the Restatement (Second) of Torts provides: "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." 3 Restatement (Second), Torts § 652B, p. 378 (1977). "The form of invasion of privacy covered by this Section does not depend upon any publicity given to the person whose interest is invaded or to his affairs. It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man." Id., comment (a), p. 378. "To successfully state an unreasonable intrusion, plaintiffs must prove an intentional physical intrusion [by the defendant] upon the private affairs or concerns of the plaintiffs which would be highly offensive to a reasonable person." (Internal quotation marks omitted.) Parnoff v. Aquarion Co., Superior Court, judicial district of Fairfield, Docket No. CV-14-6045191-S (October 20, 2015, Arnold, J.) (2015 WL 7061748, *8).
The plaintiff’s complaint does not allege that the defendants made any unlawful entry or investigation into the plaintiff’s private matters. Instead, the plaintiff’s complaint alleges only that the defendants allowed others to view confidential information about the plaintiff that was contained in the plaintiff’s daughter’s medical chart. Hospital and Medical Center assert that even if the viewing of the plaintiff’s information could somehow be construed as intruding into the plaintiff’s seclusion, Hospital’s and Medical Center’s passive act of "allowing" the viewing to take place is legally insufficient to support a claim that Hospital and Medical Center unreasonably intruded upon the plaintiff’s seclusion. See Cavallaro v. Rosado, Superior Court, judicial district of New Haven, Docket No. CV-05-4009939 (October 5, 2006, Robinson, J.) (2006 WL 2949143, *5) (striking the plaintiff’s claim that a neighbor had permitted his dog to intrude upon the plaintiff’s property on the grounds that, "[s]uch passivity will not support the intentional tort of invasion of privacy based upon the intrusion of seclusion category").
In Pearce v. Miele, Superior Court, judicial district of Hartford, Docket No. CV-13-6045901-S (February 1, 2016, Noble, J.) (2016 WL 785557), the plaintiff claimed that the defendant had intruded upon his seclusion by executing a search warrant approved by a judge of the Superior Court. In granting the defendant’s motion for summary judgment, the court noted that although the Appellate Court has yet to consider the invasion of privacy category of intrusion upon the private affairs of another, "[d]ecisions of the Superior Court have observed the principle that liability under this form of invasion of privacy is predicated solely on the manner of the intrusion and not on any act of dissemination of a matter subject to a privacy protection." Pearce v. Miele, supra, *7. "Thus, in [Gleason v. Smolinski, Superior Court, judicial district of New Haven, Docket No. CV- 06-5005107-S (July 20, 2009, Wilson, J.) (2009 WL 2506607), aff’d on other grounds, 149 Conn.App. 283, 88 A.3d 589 (2014), rev’d on other grounds, 319 Conn. 394, 125 A.3d 920 (2015) ] the court granted a motion to strike a complaint alleging an unreasonable intrusion upon the plaintiff’s seclusion against a newspaper editor for the publication of an article chronicling the life of the plaintiff where the plaintiff did not allege facts concerning how the editor obtained any of the information published in the article ... The court observed that [p]ublication of private information alone is not legally sufficient to sustain this particular cause of action, which is concerned with the methods used when obtaining private information, rather than its subsequent dissemination." (Citation omitted; internal quotation marks omitted.) Id. In granting the defendant’s motion for summary judgment, the Pearce court held that "[t]he only manner complained of and pleaded by the plaintiff in which the defendant intruded upon his private affairs is the execution of a search warrant, which the court finds cannot provide the basis for an unreasonable intrusion." Id.
The court concludes that the plaintiff’s allegation that the defendants allowed third parties to review confidential information about the plaintiff that was contained in the medical chart of the plaintiff’s infant daughter is legally insufficient to support a claim of invasion of privacy based on unreasonable intrusion upon the seclusion of another.
b. Undue Publicity to Private Life
Hospital and Medical Center next assert that the plaintiff’s claim that the defendants tortiously allowed third parties to view confidential medical information about the plaintiff contained in the daughter’s medical chart is legally insufficient because the conduct alleged does not constitute "publicity" within the meaning of Section 652D of the Restatement (Second) of Torts. The court agrees with this analysis and concludes that the plaintiff’s complaint does not allege the type of publicity needed to assert a claim of invasion of privacy based on unreasonable publicity given to private life.
Section 652D of the Restatement (Second) of Torts provides: "One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public." 3 Restatement (Second), Torts § 652D, p. 383 (1977). "The Connecticut Supreme Court has approvingly cited the Restatement’s definition of what constitutes the tort of publicity given to a private life. See [Perkins v. Freedom of Information Commission, 228 Conn. 158, 171-72, 635 A.2d 783 (1993) ]. The Supreme Court has not, however, specifically addressed the parameters of what constitutes ‘publicity’ as used by the Restatement." Pearce v. Miele, supra, Superior Court, Docket No. CV-13-6045901-S, *8.
Several courts have recognized that the publicity needed to support a claim under the unreasonable publicity given to private life category of invasion of privacy is different than the "publication" needed to support a claim of defamation. See, e.g., Doe I v. Saint Francis Hospital & Medical Center, Superior Court, judicial district of Hartford, Docket No. CV-17-6076368-S (February 5, 2018, Noble, J.) (2018 WL 1177460, *3). "The courts which have addressed this issue have almost universally adopted the definition of ‘publicity’ contained in § 652D, Comment a of the Restatement."(Quoting Daconto v. Trumbull Housing Authority, Superior Court, judicial district of Fairfield, Docket No. CV-03-0399811 (January 30, 2004, Doherty, J.) (2004 WL 304325).) Evans v. Blanchard, Superior Court, judicial district of Waterbury, Docket No. CV-03-0177251-S (January 11, 2005, Matasavage, J.) (2005 WL 407846, *2). "The commentary to the Restatement explains that ‘ "Publicity," as it is used [in Section 652D], differs from "publication," as that term is used in [3 Restatement (Second), Torts § 577. p. 201] in connection with liability for defamation ..."Publicity" ... means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge ... [I]t is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff’s private life to a single person or even to a small group of persons.’ 3 Restatement (Second), Torts § 652D, comment (a)[, p. 384] (1977)." Doe I v. Saint Francis Hospital & Medical Center, supra, *3.
The plaintiff’s complaint alleges that the infant’s father and other members of the father’s family were able to view the infant’s chart in the NICU. (Compl. Count Four ¶ 7.) The court concludes that disclosure to this relatively small group of persons is insufficient to support a claim of unreasonable publicity because the disclosure was not communicated "to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." 3 Restatement (Second), Torts § 652D, comment (a), p. 384 (1977).
c. False Light
"[A] false light invasion of privacy occurs if: ‘(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.’" (Quoting 3 Restatement (Second), Torts § 652E, p. 394 (1977).) Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 131. "The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true ... and (2) is [‘]such a [ ]major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position[ ...]’" (Quoting 3 Restatement (Second), Torts § 652E, comment (c), p. 396.) Id. Although the plaintiff’s complaint alleges that the medical history in her daughter’s chart "was factually inaccurate as to the plaintiff’s prior conditions" (Compl. Count Four ¶ 5), the complaint does not specify how the information was inaccurate, or how or why the information was such a major misrepresentation of the plaintiff’s character, history, activities or beliefs that it was reasonable to expect that a reasonable person in her position would have taken offense. For this reason the plaintiff’s false light claim is insufficient as a matter of law.
The plaintiff’s false light allegation is also legally insufficient because the complaint alleges only that the defendants allowed a small group of individuals to view her confidential information. Numerous courts have found such limited disclosure inadequate to sustain a false light claim. See Pearce v. Miele, supra, Superior Court, Docket No. CV-13-6045901-S, *8 ("Wile following decisions have found inadequacies in the scope of the dissemination of information; Deutsch v. Backus Corp., Superior Court, judicial district of New London, Docket No. CV-10-6004265-S, 2011 WL 522849 (January 14, 2011, Cosgrove, J.) (51 Conn.L.Rptr. 337) (no dissemination of information beyond internal hospital review proceedings); Pickering v. St. Mary’s Hospital, Superior Court, judicial district of Waterbury, Docket No. CV-05-4002947-S, 2005 WL 1971003 (June 29, 2005, Eveleigh, J.) (communications only to co-employees and patients at a hospital); Daconto v. Trumbull Housing Authority, Superior Court, judicial district of Fairfield, Docket No. CV- 03-0399811-S, 2004 WL 304325 (January 30, 2004, Doherty, J.) (dissemination to approximately eight co-employees)"). "Superior Court decisions have recognized the need for a communication to the public at large in both publicity given to a private life and false light publicity, which share the same definition of publicity." Id.
The court concludes for the reasons stated that the plaintiff’s claims of invasion of privacy set forth in Count Four of the plaintiff’s complaint are legally insufficient and are hereby ordered stricken.
Conclusion
Having carefully considered the plaintiff’s complaint, the defendant’s motion to strike, the plaintiff’s objection and the arguments advanced by the parties in their legal briefs and at oral argument, and taking into consideration the Supreme Court’s recent recognition in Byrne of a common-law cause of action for a health care provider’s alleged breach of duty of confidentiality while complying with a third-party subpoena, and having construed the plaintiff’s complaint broadly and realistically rather than narrowly and technically, and construing all of the allegations in the complaint and the facts necessarily implied from those allegations as admitted by Hospital and Medical Center, the court concludes that the first count of the plaintiff’s complaint sets forth a legally cognizable cause of action for negligent infliction of emotional distress. Medical Center’s motion to strike the first count of the plaintiff’s complaint is therefore denied. As for the second, third and fourth counts of the complaint, the court concludes that those counts are legally insufficient and therefore orders those counts stricken.