Opinion
No. CV 09 5014713 S
September 9, 2010
MEMORANDUM OF DECISION ON DEFENDANTS' MOTIONS TO STRIKE (#140.00 and #141.00)
FACTS:
In his Second Amended Complaint of this medical malpractice action, the plaintiff states that, during the early morning hours of January 1, 2009, he became intoxicated and was found in a snowbank. He was taken to defendant Bristol Hospital where he came under the care of the other defendants for frostbite injuries to his hands. Subsequently, the fingers of both hands and one thumb were amputated, along with a portion of the other thumb. The plaintiff alleges negligence and reckless disregard on the part of the defendants in treatment and improper discharge which necessitated the amputations.
The other defendants are defendant Bristol Hospital's alleged agent Connecticut Emergency Medicine Specialists, LLC and its alleged agents, Josiah Child, M.D., Cliff Wagner, M.D. and Charles Barnicote, P.A.
The defendant Bristol Hospital has moved to strike Count Twelve, which alleges reckless disregard on the part of that defendant. The other defendants have moved to strike Counts Nine, Ten and Eleven, which similarly allege reckless disregard on the part of each of these defendants respectively. The basis for the motions is that the plaintiff has failed to make sufficient allegations of reckless disregard. In addition, defendant Bristol Hospital claims that, although the plaintiff has removed his claim for relief of punitive damages against this defendant, "retaining the twelfth count for reckless and willful misconduct clearly will lead to a request for punitive damages" which would be an exception to the common-law rule that there is no vicarious liability for punitive damages.
Neither of the motions to strike are in compliance with P.B. § 10-41, which requires the moving party to "distinctly specify the reason or reasons for each such claimed insufficiency." The reasons are to be stated on the face of the motion itself. Identifying the reasons in a memorandum of law does not satisfy the requirement. Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007). While this is a fatal defect to the motions, the plaintiff has not raised the issue of the defect and, consequently, it is considered waived. Id., 861.
The plaintiff in his objections to the motions to strike argues that he has sufficiently plead the causes of action and that the alleged failure to properly treat him is not a medical negligence claim. Rather, it is a "claim that the discharge of Plaintiff was influenced by his social and economic status, i.e., who he was, or more aptly put, who he wasn't."
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). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). When ruling on a motion in strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Id.
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.) 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., 240 Conn. 576, 580, 693 A.2d 293 (1997).
"A speaking motion to strike is one improperly importing facts from outside the pleadings." Mercer v. Cosley, 110 Conn.App. 283, 292 n. 7, 955 A.2d 550 (2008). "[A] motion to strike is essentially a procedural motion that focuses solely on the pleadings . . . It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion . . ." (Citation omitted; internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
DISCUSSION:
The court considers whether the allegations contained within Counts Nine through Twelve can be read to sufficiently support a cause of action sounding in reckless disregard. Additionally, the court considers whether this cause of action can be maintained vicariously against defendant Bristol Hospital.
I.
For each of the counts sounding in reckless disregard, the plaintiff has repeated the allegations against the respective defendants in the negligence counts and has added additional allegations. At oral argument, counsel for the plaintiff conceded that each of the new allegations could have been characterized as allegations of negligence, save one.
That one allegation, contained in each of these four counts, states that the injuries sustained by the plaintiff were caused by the reckless and wanton disregard for the rights of the plaintiff in that the respective defendant "discharged Plaintiff Wellons in reckless disregard for his rights, safety and dangerous potential sequelae, influenced by non-medical considerations of Plaintiff's economic and social status."
In one of his memoranda of law opposing the respective motions to strike, the plaintiff argues, "Said allegation clearly suggests a factor in the decision to discharge Plaintiff Wellons was who he was." In the other memorandum of law, the plaintiff states, succinctly, "It is a claim that the discharge of Plaintiff was influenced by his social and economic status, i.e., who he was, or more aptly put, who he wasn't." However, such an allegation is not contained in the operative complaint and the court cannot consider it in deciding the motions to strike. Mercer, supra; Tracy, supra.
In the operative complaint, there is no predicate allegation that the defendants believed the plaintiff was of an economic and social status which affected their respective decisions to discharge him. Additionally, it would have to be presumed that such economic and social status would be viewed unpropitiously by the defendants. The plaintiff has failed to allege sufficient facts to allow for a finding on this allegation in his favor absent speculation on the part of the finder of fact. Failure to so do is prejudicial to the defendants.
"It is well settled that `[t]he failure to include a necessary allegation in a complaint precludes a recovery by the plaintiff under that complaint . . .' (Internal quotation marks omitted.) Madsen v. Gates, 85 Conn.App. 383, 398, 857 A.2d 412, cert. denied, 272 Conn. 902, 863 A.2d 695 (2004). As a result, `[i]t is incumbent on a plaintiff to allege some recognizable cause of action in his complaint.' (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 121, 971 A.2d 17 (2009); Practice Book § 10-20 (complaint `shall contain a concise statement of the facts constituting the cause of action')." Sturm v. Harb Development, LLC, 298 Conn. 124, 130 (2010).
Because a cause of action sounding in recklessness must allege something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them, the plaintiff must allege conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003).
The Connecticut Supreme Court has defined willful, wanton, or reckless conduct as that conduct "which tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. It is at least clear that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Internal quotations and citation omitted). Id.
While the Supreme Court noted in Craig that it was permissible to plead the same claims contained in the negligence count in the reckless count, Id. at 343, in this instance, with the exception of the allegation as to economic and social status, discussed above, all of the allegations contained in the reckless counts sound in medical malpractice. In other words, the plaintiff is claiming reckless medical malpractice.
The court can find no appellate authority establishing a standard for reckless medical malpractice. However, the Connecticut Supreme Court defined the standard for the lower degree of "gross negligence" in a medical malpractice action as a "high threshold of egregiousness." Boone v. William Backus Hospital, 272 Conn. 551, 568, 864 A.2d 1 (2005). Rather than a mere deviation from the standard of care as alleged by the plaintiff, such conduct would necessarily be an extreme departure from the standard of care, something more than the high threshold of egregiousness which must be met for gross negligence. No factual basis is provided in these counts to establish such a claim.
For all of these reasons, the defendants' motions to strike the Ninth, Tenth, Eleventh and Twelfth Counts of the Plaintiff's Second Amended Complaint are granted.
II.
In addition to the ground of inadequate factual basis, defendant Bristol Hospital alleges that the plaintiff cannot maintain a claim against it in the Twelfth Count, which seeks to hold the hospital vicariously liable for the alleged reckless conduct of the other defendants. There is no vicarious liability for punitive damages. Matthiessen v. Vanech, 266 Conn. 822, 837, 836 A.2d 394 (2003). However, in the instant action, the plaintiff is not seeking punitive damages. Rather, he is seeking compensatory damages for alleged reckless conduct. Therefore, although the court finds sufficient grounds to strike the Twelfth Count as stated in I. above, the defendant does not prevail on this ground.
ORDER:
The defendants' motions to strike (##140.00 and 141.00) are granted.