Opinion
No. FST CV 07-5003525 S
June 25, 2010
MEMORANDUM OF DECISION ON DEFENDANT'S STAMFORD HEALTH SYSTEM. INC. MOTION TO STRIKE DATED SEPTEMBER 15, 2009 (#137.00)
The plaintiff is alleging three separate theories of vicarious liability against the defendant, Stamford Health System, Inc. (Stamford Hospital): agency, apparent agency and non-delegable duty. This motion is only addressed to the non-delegable duty claim.
The plaintiff has alleged that the defendant, Samuel Maryles, M.D., is an emergency medical physician employed by Emergency Medicine Physicians, Inc. and Emergency Medicine Physicians of Fairfield County, LLC (collectively EMP). Dr. Maryles was assigned by EMP to the emergency room of the Stamford Hospital. Dr. Maryles was not an employee of the Stamford Hospital. The plaintiff alleged that Dr. Maryles was negligent in failing to adequately diagnose and/or treat the plaintiff's medical condition and as a result the plaintiff died.
The Stamford Hospital's Motion to Strike (#132.00) states in its entirety: "Defendant, Stamford Health System, Inc., hereby moves to strike paragraph 15, 16 and 17 of plaintiff's Revised Complaint dated March 28, 2008, on the ground that plaintiff attempts to state a cause of action in `non-delegable duty' and therefore fails to state a claim upon which relief can be granted. A memorandum in support of this Motion is attached hereto."
This court has applied the well-known standards in deciding this Motion to Strike. Craig v. Driscoll, 262 Conn. 312, 321 (2003). The parties agreed that this non-delegable duty issue can be decided by a motion to strike even though it is alleged in only three paragraphs of a count instead of in a separate count. The court finds that this procedure is appropriate since those three paragraphs contain a separate claim. "While it is usually improper for a single paragraph of a count to be stricken, where that paragraph can be construed as an attempt to state a separate claim, a motion to strike may be granted." Vasudevan v. Pragosa, Superior Court, judicial district of Hartford at Hartford, Docket Number HHD CV 05-4012416 S (January 23, 2006, Keller, J.) [ 40 Conn. L. Rptr. 617].
The court has carefully considered the pleadings in the file, the standards relating to deciding motions to strike, the briefs filed by both parties, and the court's own independent research of Connecticut and foreign decisions.
The court finds that Connecticut law does not recognize a claim based on non-delegable duty against a Connecticut hospital for the negligence of physicians employed by another non-hospital entity as emergency room physicians staffing that hospital's emergency room.
The defendant, Stamford Health System, Inc., Motion to Strike dated September 15, 2009 (#137.00) is granted.
This Memorandum of Decision will be articulated at a later date by the undersigned in a written Memorandum of Decision in excess of twenty pages.