Opinion
HHDCV156057532S
03-07-2016
Brenda Santos v. Derek Bailey, M.D. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE
Cesar A. Noble, J.
This case, claiming sexual assault and medical malpractice on the part of the defendant physician, comes before the court on the defendant's motion to strike three of the complaint's six counts. The defendant argues that the sexual contact alleged in the second count is insufficiently extreme and outrageous to establish a claim for intentional infliction of emotional distress; that the fifth count, captioned " sexual assault/medical malpractice, " fails to allege the consent-related elements required to plead such a claim in the medical malpractice context; and finally, as to the sixth count alleging medical malpractice, that the sexual assault alleged could not be related to the professional diagnosis, treatment or the exercise of professional treatment. The court is not persuaded and denies the motion in its entirety.
I
FACTS AND PROCEDURAL HISTORY
The plaintiff's complaint is in six counts which share the allegation of the claimed touching by the defendant, Derek Bailey, M.D. of the plaintiff's genitalia and vaginal area. Only counts two, five and six are the subject of the defendant's motion to strike.
Because Bailey is the only movant he will, for purposes of this memorandum, be referred to as the defendant. The codefendant, Occupational Medicine of the Northeast, LLC, is sued in the third and fourth counts on the basis of vicarious and direct liability respectively.
Count two alleges intentional infliction of emotional distress as a result of a sexual assault on the part of the defendant by way of intentionally and forcefully grabbing the plaintiff's genitalia and vaginal area. Moreover, the plaintiff alleges that the defendant knew such conduct would likely result in emotional distress and harm to the plaintiff, and that such conduct was extreme and outrageous. The plaintiff claims the defendant's conduct was the cause of her injuries and losses, including post-traumatic stress disorder, depression, fear and anxiety.
The fifth and sixth counts contain the additional fact that the defendant was a medical doctor and was performing a physical examination on the plaintiff at the time of the unwanted touching. Both counts allege medical malpractice, although the fifth count is captioned " sexual assault/medical malpractice."
The fifth count contains the claim that the defendant " breached the standard of care when he intentionally and forcefully touched the plaintiff's vaginal area and genitalia while allegedly performing a hernia exam." The sixth count, simply captioned " medical malpractice, " contains the allegation in paragraph five that the defendant breached the standard of care during the physical examination of the plaintiff when he touched her vaginal area and genitalia while performing a hernia exam. It additionally alleges that the standard of care was breached when the defendant performed a hernia exam upon the plaintiff with no one else in the examining room.
The defendant filed a motion to strike in which he asserts that count two should be stricken because the alleged intentional, forceful grabbing of the plaintiff's genitalia and vaginal area does not constitute the extreme and outrageous conduct required to state a cause of action for intentional infliction of emotional distress. Count five should be stricken, in the view of the defendant, because the plaintiff failed to plead any of the elements required to set forth a claim for assault in the context of medical malpractice. Finally, count six fails to state a claim upon which relief may be granted, argues the defendant, because it fails to allege " facts that demonstrate the requisite standard of care for treatment" and the conduct, a sexual assault, is not properly characterized as that of a specialized medical nature or substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.
The plaintiff demurs to all of the defendant's arguments. She asserts as to the second count that the defendant's sexual conduct during the physical examination was extreme and outrageous; that the fifth count survives because an assault is by definition nonconsensual and the duty of care requires first obtaining consent for any procedure; and that the sixth count sufficiently pleads medical malpractice because the touching took place during the specialized procedure of a physical exam substantially related to medical treatment.
II
STANDARD OF REVIEW
" 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 court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . 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.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
III
DISCUSSION
A
Count Two--Intentional Infliction of Emotional Distress
The elements necessary to state a claim for intentional infliction of emotional distress are well settled. " In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
Although the plaintiff has made general allegations asserting all of the requisite elements for this cause of action, the defendant argues the conduct complained of is insufficiently " extreme or outrageous" to state a claim. The defendant directs the court's attention to the principle that liability for intentional infliction of emotions distress requires conduct exceeding " all bounds usually tolerated by decent society" and refers the court to Petyan v. Ellis, 200 Conn. 243, 254, n.5, 510 A.2d1337 (1986). Indeed, " [l]iability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 527, 43 A.3d 69 (2012).
As noted by our Supreme Court in Petyan v. Ellis, 200 Conn. 243, 254 n.5, 510 A.2d 1337 (1986), " '[t]he rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.' (Emphasis added.) Prosser & Keeton, Torts (5th Ed.) § 12, p. 60."
The defendant argues that the plaintiff's allegation that the defendant " sexually assaulted the plaintiff by intentionally and forcefully grabbing her genitalia and vaginal area" while alone with her in an examining room fails to set out outrageous and extreme conduct. Specifically, the defendant argues that this is so because courts have found conduct of a sexual nature extreme and outrageous only when such conduct was repetitive, continuous and constant in nature. The defendant refers the court to Jacobson v. International Tours & Events, LLC, Superior Court, judicial district of New Haven, Docket No. CV-09-5029826-S, (July 11, 2011, Fischer, J.), McKelvie v. Cooper, 190 F.3d 58, 60-61 (2d Cir. 1999) and Berry v. Loiseau, 223 Conn. 786, 793, 614 A.2d 414 (1992) for this proposition. None of these cases, however, support, nor even advance, the proposition that in order for conduct to be extreme and outrageous in the context of sexual contact it must be repetitive, continuous or constant in nature. Research by this court has not found any such rule and, to the contrary, the Superior Courts have often commented that there is no bright line rule to determine what constitutes extreme and outrageous conduct. See, e.g., Green-Cubano v. Norwalk Acquisition I, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-14-6023777-S, (June 23, 2015, Heller, J.) (2015 WL 43 80273, at *3) (no bright line rule to determine what constitutes extreme and outrageous conduct), citing Leone v. New England Communications, Superior Court, judicial district of New Britain, Docket No. CV-01-0509752, (April 10, 2002, Quinn, J.) (2002 WL 1008470) (32 Conn. L. Rptr. 72); see also Parnoff v. Aquarion Co., Superior Court, judicial district of Fairfield, Docket No. CV-14-6045191-S, 2015 WL 7270686, at *5 (October 22, 2015, Arnold, J.) (same); Woodbury-Correa v. Reflexite Corp., Superior Court, judicial district of New Britain, Docket No. CV-11-6011794, (December 15, 2014, Abrams, J.) (2015 WL 7662505) (same); Jean-Charles v. People to Places, Superior Court, judicial district of Fairfield, Docket No. CV-14-6042480-S, (December 03, 2014, Arnold, J.) (same) (2014 WL 77671662).
This court cannot find, as requested by the defendant, that the alleged conduct of intentionally and forcefully grabbing the plaintiff's genitalia and vaginal area is not extreme or outrageous. The conduct certainly transcends the bounds of socially acceptable behavior and does so in a manner which exceeds any boundaries usually tolerated by decent society. The motion to strike count two is therefore denied.
B
Count Five--Sexual Assault/Medical Malpractice
The defendant asserts that the plaintiff's failure to allege any facts other than the defendant having " breached the standard of care when he intentionally and forcefully touched the plaintiff's vaginal area and genitalia while allegedly performing a hernia exam" renders the count insufficient to state a cause of action for medical malpractice. Both the defendant and the plaintiff refer the court to Logan v. Greenwich Hospital Association, 191 Conn. 282, 289, 465 A.2d 294 (1983) for the proposition that the law considers either an assault or a battery to have occurred where a physician fails to obtain any consent to the particular treatment, performs a different procedure from the one for which consent has been given or where he realizes that the patient does not understand what the operation entails. The defendant argues that the plaintiff simply has not alleged any of these circumstances. The plaintiff counters with the bald argument that any consent to a hernia examination--without identifying the nature of the hernia or its location--did not extend to an intentional and forceful touching of the plaintiff's vaginal area and genitalia, and such allegations fully establish a claim for medical malpractice where there is an allegation that the conduct breached the standard of care.
Both arguments presume that the fifth count sets forth a claim for an assault, here one of a sexual nature. A careful reading of this count, however, indicates that it does not. The plaintiff alleges that during the course of a physical examination, while alone with the plaintiff, the defendant breached the standard of care when he intentionally and forcefully touched the plaintiff's vaginal area and genitalia while allegedly performing a hernia examination, and that such conduct caused her injury. The plaintiff does not identify the location of the hernia, does not claim that the intentional and forceful touching was unconsented to (or that any touching of the vaginal area and genitalia was unconsented to) or even that a touching of the vaginal area and genitalia was not part of the examination. There are absolutely no factual allegations in this count suggestive of any assault, sexual or otherwise.
It is true that the caption of the fifth count reads " sexual assault/medical malpractice, " but the count contains no factual allegations asserting a claim for sexual assault. Indeed, neither the word " assault" nor the phrase " sexual assault" appear anywhere in the body of the count. Although captions of pleadings serve generally to identify the specific claims presented, they are merely a legal conclusion by the pleader. As stated by the court in ShareAmerica, Inc. v. Ernst & Young, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X02-CV-93-0150132-S, (July 2, 1999, Sheldon, J.), " [t]o properly assess the legal sufficiency of a challenged count or pleading, the court must therefore look beyond its caption to the allegations of the count or pleading itself. If the allegations in question describe and/or make provable facts tending to establish all the essential elements of a valid claim or cause of action, the case must be allowed to go forward on that claim or cause of action even if the pleader has mislabeled it." " Regardless of the title of the pleading, it is the substance of the text which binds the court." Hugman Co. v. Errato, Superior Court, judicial district of Litchfield, Docket No. CV-08-5004567-S, (February 24, 2010, Shaban, J.). " It is not the label that the plaintiff placed on each count of her complaint that is pivotal but the nature of the legal inquiry." Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 580, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009). The defendant's assertion that the fifth count is legally insufficient is, in essence, a claim that it fails to fulfill the promise of its caption. When viewed in the light most favorable to sustaining its legal sufficiency, the fifth count sufficiently alleges a cause of action for medical malpractice by alleging that the defendant breached the standard of care when he intentionally and forcefully touched the plaintiff's vaginal area and genitalia while allegedly performing a hernia examination. Accordingly, on the grounds asserted by the defendant, the motion to strike the fifth count is denied.
C
Sixth Count--" Medical Malpractice"
The defendant claims that the sixth count fails to state a legally sufficient claim for medical malpractice on the basis that " she fails to allege facts that demonstrate the requisite standard of care for treatment" and more generally that a sexual relationship with or assault on a patient is not substantially related to medical diagnosis or treatment.
As to the first assertion, the defendant fails to provide any authority for the principle that a plaintiff is obliged to set forth the actual standard of care in a complaint. Research by the court has failed to find any authority to support the defendant's bald assertion. It is true that in order to " prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury." (Internal quotation marks omitted.) Rosa v. Lawrence & Memorial Hospital, 145 Conn.App. 275, 303, 74 A.3d 534 (2013). Our Supreme Court has identified the relevant considerations for the determination of whether a claim sounds in medical malpractice. These 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." (Citation omitted.) Gold v. Greenwich Hospital Association, 262 Conn. 248, 254, 811 A.2d 1266 (2002).
Here, the plaintiff pleaded that the defendant breached the standard of car by touching the plaintiff's vaginal area and genitalia while performing a hernia exam and when he performed a hernia exam upon the plaintiff with no one else in the examining room. " Malpractice is commonly 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 . . ." (Footnote omitted; internal quotation marks omitted.) Barnes v. Schlein, 192 Conn. 732, 735, 473 A.2d 1221 (1984). The allegations contained in the sixth count are sufficient to state a cause of action for medical malpractice. The plaintiff has plead legal effect as permitted by Practice Book § 10-2 by alleging that the defendant breached the standard of care.
Practice Book § 10-2 provides in relevant part that " [a]cts and contract may be stated according to their legal effect, but in so doing the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove."
The defendant's second argument, that a sexual relationship with or assault on a patient is not substantially related to medical diagnosis or treatment, suffers from the same infirmity as that asserted by the defendant to the fifth count, to wit, nowhere in the sixth count may be found an allegation of assault or even sexual assault. Thus, the defendant's factual premise is simply in error. Viewed in the light most favorable to find it legally sufficient, the sixth count states a claim upon which relief may be granted, and the defendant's motion to strike this count is denied.
This observation applies equally to the plaintiff, who argues in objection to the defendant's motion to strike this count, that her complaint makes it clear that " it was during the course of the physical examination that the defendant began to grope her vaginal area and genitalia."
For all the above reasons the defendant's motion to strike is denied in its entirety.