Opinion
CV166062726S
08-24-2017
Enrico Vaccaro, Individually and as Administrator of the Estate of Marie J. Vaccaro v. Christopher P. Loscalzo, M.D. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#111)
Robin L. Wilson, J.
FACTS
On May 26, 2016, the plaintiffs, Enrico Vaccaro, individually and as administrator of the estate of Marie J. Vaccaro (decedent), commenced this action by serving a six-count complaint on the defendants, Christopher P. Loscalzo, Yale Medical Group, Cardiology Associates of New Haven, P.C., Yale University School of Medicine, and Yale-New Haven Hospital, Inc. The six-count complaint alleges wrongful death, loss of consortium, medical negligence, and seeks reimbursement of expenses incurred under General Statutes § 46b-37.
The complaint alleges the following facts. Loscalzo is a cardiologist who treated the decedent, and was a member, agent, servant, and/or employee of the remaining defendants. The defendants undertook the continuous medical care and treatment of the decedent, starting on or about November 9, 2009, through and including the date of the decedent's death on December 26, 2015. The defendants negligently cared for, treated, and diagnosed the decedent, and negligently monitored and supervised the decedent's medical treatment. The negligence primarily involved the decision to discontinue a prescription, Coumadin, and replace it with aspirin. As a result of the defendants' negligence, the decedent suffered a massive stroke and, ultimately, died.
The plaintiffs divide the six-count complaint into two parallel sets of postmortem and antemortem claims. Counts one through three of the plaintiffs' complaint assert claims for wrongful death, loss of consortium, and a claim for reimbursement for any liability incurred per § 46b-37 for antemortem or postmortem expenses, relating to the decedent's treatment, stroke, and death. Counts four through six of the plaintiffs' complaint assert antemortem claims for medical malpractice, loss of consortium, and a claim for reimbursement for any liability incurred per § 46b-37 for antemortem expenses, relating to the decedent's treatment and stroke.
On February 17, 2017, the defendants filed a motion to strike counts three through six of the plaintiffs' complaint on the ground that they fail to state claims upon which relief can be granted. The defendants concurrently filed a memorandum of law in support of their motion to strike. The plaintiffs have not filed an objection to date. The matter appeared on the court's June 13, 2017 short calendar as take papers.
" Practice Book § 10-40 provides in relevant part: '(a) Any adverse party shall have thirty days from the filing of the motion to strike to respond to a motion to strike filed pursuant to Section 10-39 by filing and serving in accordance with Sections 10-12 through 10-17 a memorandum of law in opposition.' There remains no direct appellate authority on this issue. Nonetheless, a majority of [Superior Court] decisions have concluded that the failure to file a timely opposing memorandum will not necessarily be fatal and that the court, in its discretion, may address the merits of the motion to strike ... Furthermore, our appellate courts have consistently found that [i]n determining whether a motion to strike should be granted, the sole question is whether, if the facts alleged are taken to be true, the allegations provide a cause of action or a defense. (Emphasis added.) County Federal Savings & Loan Assn. v. Eastern Associates, supra, 3 Conn.App. at 585.' (Citation omitted; emphasis in original; internal quotation marks omitted.) Everbank v. Shine, Superior Court, judicial district of Danbury, Docket No. CV-14-6014362-S, (April 15, 2015, Russo, J.) ; see also; but see McDuffie v. Schaffer Associates, LLC, Superior Court, judicial district of New Haven, Docket No. CV-08-5024230-S, (May 27, 2010, Wilson, J.) ('[s]ome of the decisions in the majority have stressed the absence of an objection from the moving party')." Holt v. Adams, Superior Court, judicial district of Hartford, Docket No. HHDCV-16-6070761-S (Dubay, J., April 4, 2017) [64 Conn.L.Rptr. 169, ]. Although the plaintiff in the present case has failed to file a timely opposing memorandum, the court in its discretion will consider the merits of the defendants' motion to strike.
DISCUSSION
" A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint . . . or of any one or more counts thereof, to state a claim upon which relief can be granted; or . . . (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts." Practice Book § 10-39(a). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
The defendants first argue that counts four and five of the plaintiffs' complaint--a medical malpractice claim and a related loss of consortium claim--must be stricken. The defendants assert that the medical malpractice claim cannot be brought alongside a claim pursuant to the wrongful death statute, General Statutes § 52-555, because the wrongful death statute provides the sole cause of action available to the plaintiff. Moreover, the defendants state that the loss of consortium claim must be stricken as it derives from the incurably deficient medical malpractice claim.
General Statutes § 52-555(a) provides in relevant part: " In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses ..."
Connecticut's wrongful death statute allows an executor to recover damages for injuries resulting in death, and " is the sole basis upon which an action that includes as an element of damages a person's death or its consequences can be brought. At common law, the death of the injured person, whether contemporaneous with the wrongful act or not, terminated liability of the wrongdoer because the right to enforce it ended with the death . . . Death and its direct consequences can constitute recoverable elements of damages only if, and to the extent that, they are made so by statute." (Citation omitted.) Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 295, 627 A.2d 1288 (1993). " In other words, there cannot be a recovery of damages for death itself under the wrongful death statute in one action and a recovery of ante-mortem damages, flowing from the same tort, in another action brought under [§ 52-555]." Floyd v. Fruit Industries, Inc., 144 Conn. 659, 669, 136 A.2d 918 (1957) . " Any other result would defy the rule that death is not recoverable as damages at common law." Torres v. American Medical Response of Connecticut, Inc., Superior Court, judicial district of Hartford, Docket No. CV-00-0802360-S, (September 6, 2001, Peck, J.).
General Statutes § 52-555a establishes the extent to which death and its direct consequences constitute recoverable elements of damages beyond a wrongful death claim: " Any claim or cause of action for loss of consortium by one spouse with respect to the death of the other spouse shall be separate from and independent of all claims or causes of action for the determination of damages with respect to such death." Despite the separateness of the claims with regard to the determination of damages, our courts have considered that " a consortium action is derivative of the injured spouse's cause of action." Hopson v. St. Mary's Hospital, 176 Conn. 485, 494, 408 A.2d 260 (1979).
In the present matter, the plaintiffs bring claims under § 52-555 and § 52-555a in counts one and two of their complaint. The plaintiffs carefully drafted counts four and five of the complaint so as to exclude the decedent's death from their allegations: count four does not identify the decedent's death among the enumerated injuries allegedly caused by the defendants' actions, and count five is limited to the loss of antemortem consortium. Nevertheless, the court notes that paragraph 9 of the plaintiffs' complaint alleges that the decedent's " injuries, losses and death were caused by" the negligence of the defendants. In other words, counts four and five of the plaintiffs' complaint seek recovery of damages for injuries that resulted in the decedent's death. The wrongful death and loss of consortium claims in counts one and two of the plaintiffs' complaint provide the sole remedy available to the plaintiffs and bar claims for medical negligence and claims derived therefrom. Accordingly, counts four and five of the plaintiffs' complaint are stricken.
The court now turns to counts three and six of the plaintiffs' complaint, which claim reimbursement for any expenses that might be imposed upon the plaintiffs pursuant to § 46b-37. The defendants assert that counts three and six of the plaintiffs' complaint must be stricken, as they allege claims for which the cited statute provides no direct cause of action. Section 46b-37 establishes the joint duty of spouses to support their family, and provides that both shall be liable for certain medical, residential, and mutually-beneficial expenses. " [B]ecause § 46b-37 is in derogation of the common law and creates liability where formerly none existed it should be strictly construed and not enlarged in its scope by the mechanics of construction . . . [T]he operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope. The court is to go no faster and no further than the legislature has gone." (Citation omitted; internal quotation marks omitted.) Wilton Meadows Ltd. Partnership v. Coratolo, 299 Conn. 819, 825-26, 14 A.3d 982 (2011).
General Statutes § 46b-37(b) provides in relevant part: " [I]t shall be the joint duty of each spouse to support his or her family, and both shall be liable for: (1) The reasonable and necessary services of a physician or dentist; (2) hospital expenses rendered the husband or wife ... (3) the rental of any dwelling unit actually occupied by the husband and wife as a residence and reasonably necessary to them for that purpose; and (4) any article purchased by either which has in fact gone to the support of the family, or for the joint benefit of both."
Although § 46b-37 might impose liability upon the decedent's husband for some of the expenses incurred as a result of the defendants' actions, that statute does not create a cause of action by which the plaintiffs can transfer such liability to a third party. This is not because our legislature sees fit to impose all liability exclusively upon the decedent's surviving spouse, but because it has contemplated the circumstances under which liability for such expenses should and should not lie with a decedent or a decedent's spouse, and it has created causes of action that allow for the recovery of such expenses through other means. In the present matter, the applicable means for recovery are limited to claims of wrongful death and loss of consortium, which can be brought--and here, are in fact brought--under § § 52-555 and 52-555a.
Specifically, § 52-555 is clear: recovery of damages for injuries resulting in death can only be sought as authorized by statute. See § 52-555(a) (specifically referencing recovery of " just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses"). In this case, recovery for any of these types of damages, including reimbursement, must be sought under a wrongful death claim and/or its derivative claim for loss of consortium. See § § 52-555 & 52-555a. Accordingly, counts three and six of the plaintiffs' complaint are stricken.
CONCLUSION
For the foregoing reasons, the defendants' motion to strike counts three, four, five, and six of the plaintiffs' complaint is granted.