Opinion
No. 5100716
September 17, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE #104
The revised four-count complaint in the present action contains the following factual allegations. On September 18, 2003, the plaintiff, Lori Blinderman, her husband, Richard Blinderman and their minor child started counseling with the defendant, Reuben Spitz, a licensed family psychologist. When the plaintiff started counseling, she was suicidal and taking medications for psychological conditions. This counseling continued through May 2004. During the course of counseling, the defendant initiated personal contact with the plaintiff outside of the counseling sessions, which initially emotionally confused the plaintiff. The defendant started making sexual advances towards the plaintiff in December 2004. Although she was initially confused and turned off by these advances, the plaintiff eventually gave in, and started a sexual affair with the defendant in February 2005. During the relationship, the defendant had sexual intercourse with the plaintiff in his office during the work day, revealed private information to the plaintiff about her husband and other clients, provided her with drugs and discouraged her from seeking further counseling elsewhere. The defendant also encouraged her to leave her husband and to seek a divorce. She filed for divorce on January 20, 2007, a week after the defendant's wife filed for divorce. The relationship continued until May 23, 2006 when the plaintiff's husband initiated suit against the defendant, and the defendant asked her to lie about the nature of their affair. She proceeded to send the defendant an e-mail denying the affair and has not been in contact with the defendant since that time.
In the first and second count the plaintiff alleges claims against the defendant for professional negligence and negligent infliction of emotional distress respectively. In the third count, the plaintiff alleges that the above described actions taken by the defendant as a licensed psychologist who provided family and marriage counseling services to Connecticut consumers, were unfair and deceptive acts and practices under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. In count four, the plaintiff alleges reckless and `wanton conduct by the defendant.
On March 28, 2007, the defendant filed a motion to strike count three, with a memorandum of law in support, on the grounds that count three is legally insufficient because allegations of medical malpractice cannot form the basis of a CUTPA violation and the plaintiff has failed to allege sufficient facts to support a CUTPA claim based on the defendant's entrepreneurial or business practices. On May 1, 2007, the plaintiff filed a memorandum in opposition. On May 17, 2007, the defendant filed a reply memorandum in support.
DISCUSSION
"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 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.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
The defendant asserts that although health care providers can be liable under CUTPA for improper entrepreneurial or business practices, Connecticut courts have determined that allegations pertaining to medical malpractice cannot support CUTPA claims. The defendant argues that the plaintiff's CUTPA claim should be stricken because her allegations are limited to medical malpractice and she fails to include any allegations regarding the entrepreneurial or business practices of the defendant.
The plaintiff argues that her allegations are sufficient to support a CUTPA claim because the defendant has held himself out as a personal and family psychologist and has caused harm through his business practices by betraying patient's privacy rights and by soliciting a false statement from the plaintiff for the purpose of saving his career. The plaintiff also argues that the present case is distinguishable from the cases cited by the defendant because she has alleged immoral, unethical and unscrupulous behavior that goes beyond mere medical negligence.
In his reply memorandum in support, the defendant argues that this case falls within the line of cases that hold that allegations of medical malpractice cannot be recast as CUTPA violations and that the plaintiff's only allegations regarding CUTPA are exactly the same as her allegations regarding medical malpractice. The defendant also argues that though the plaintiff has alleged that the defendant has engaged in the business of providing mental health services, she has not shown that the defendant's conduct in the entrepreneurial, commercial or business aspect of that practice caused the plaintiff's injuries.
"[General Statutes §] 42-110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154-55, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).
Our Supreme Court has decided that, "although physicians and other health care providers are subject to CUTPA, they may be liable only for unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of the entrepreneurial, commercial, or business aspect of the practice of medicine . . . The practice of medicine may give rise to a CUTPA claim only when the actions at issue are chiefly concerned with entrepreneurial aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the competence of and strategy employed by the . . . defendant . . . [T]he touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business practice aspect of the provision of services is implicated, aside from medical competence or aside from medical malpractice based on the adequacy of staffing, training, equipment, or support personnel. Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation. To hold otherwise would transform every claim for medical malpractice into a CUTPA claim." (Emphasis in original; citations omitted; internal quotation marks omitted.) Janusauskas v. Fichman, 264 Conn. 796, 808-09, 826 A.2d 1066 (2003).
For example, in Rumbin v. Baez, 52 Conn.App. 487, 490-91, 727 A.2d 744 (1999), the plaintiff alleged that the defendant psychologist performed tests on the plaintiff that he was not qualified to perform, and then mistakenly reported that the plaintiff had a psychological disorder. The court held that the trial court properly struck the plaintiff's CUTPA claim because "[t]he defendant's failure to meet the standards of [his] profession would constitute a malpractice claim," and not a CUTPA claim. Id., 490.
In reviewing a CUTPA claim in this context, the court "must review the plaintiff's allegations of CUTPA violations and look to the underlying nature of the claim to determine whether it is really a medical malpractice claim recast as a CUTPA claim." (Internal quotation marks omitted.) Janusaukas v. Fichman, supra, 264 Conn. 809. In the present case, the plaintiff's allegations only pertain to the defendant's alleged professional negligence and are not sufficient to state a CUTPA claim. The chief allegations made by the plaintiff regard the harmful effects of the defendant's personal and sexual relationship with her, and the defendant's disclosure of privileged information during the course of the affair. These allegations do not go to the entrepreneurial or business practices of the defendant, but rather speak to the question of whether the defendant violated the standard of care that applies to a family psychologist.
See Skrzypiec v. Noonan, 228 Conn. 1, 3-4, 633 A.2d 716 (1993) (affirming jury's verdict that defendants, psychiatrist and social worker, acted negligently in disclosing confidential information about plaintiff); McDuff v. Tamborlane, Superior Court, judicial district of New London, Docket No. CV 97 0540767 (July 6, 1999, Mihalakos, J.) (25 Conn. L. Rptr. 1) (holding that "[t]he proximate cause of the malpractice action is the disclosure of privileged information by [the defendant psychologist]"); Dufault v. Mastrocola, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 94 0543343 (March 1, 1996, Hale, J.T.R.) (holding that therapist had duty to not use confidential information about his patient in his effort to engage in a sexual affair with patient's wife).
The plaintiff also alleges that, during the course of the affair, the defendant gave the plaintiff drugs, discouraged her from seeking counseling outside of their relationship, and encouraged her to make false statements in order to protect the defendant's career. These allegations stem from the personal and sexual relationship between the plaintiff and the defendant and are an example of the abuse of what is known as the transference phenomenon. Abuse of the transference phenomenon is considered a breach of the standard of care and many a psychologist and social worker have been sanctioned for such abuse. Hence, these allegations once again speak to the defendant's professional negligence, and not to his entrepreneurial or business practices.
"Transference is the term used by psychiatrists and psychologists to denote a patient's emotional reaction to a therapist and is generally applied to the projection of feelings, thoughts and wishes onto the analyst, who has come to represent some person from the patient's past . . . What the notion of transference assumes is that as therapy develops, and if therapy is working, the client comes to either consciously or unconsciously, or both, regard the therapist as a child might regard the parent . . . [W]hat happens when therapy is working . . . is that this transference relationship grows so that the client comes to experience the therapist as a powerful, benevolent parent figure . . . Transference is crucial to the therapeutic process because the patient unconsciously attributes to the psychiatrist or analyst those feelings which he may have repressed towards his own parents . . . [I]t is through the creation, experiencing and resolution of these feelings that [the patient] becomes well . . . Understanding of transference forms a basic part of the psychoanalytic technique. The proper therapeutic response is countertransference, a reaction which avoids emotional involvement and assists the patient in overcoming problems . . . Courts have uniformly regarded mishandling of transference as malpractice or gross negligence." Heaford v. Danbury Hospital, Superior Court, judicial district of Danbury, Docket No. CV 03 0348399 (December 3, 2003, Moraghan, J.T.R.) (36 Conn. L. Rptr. 138).
See Hendrickson v. Dept. of Public Health, Superior Court, judicial district of New Britain, Docket No. CV 05 4005077 (May 16, 2007, Tanzer, J.) (revoking social worker's license for having personal and sexual relationship with former patient); Ryan v. Dept. of Public Health, Superior Court, judicial district of New Britain, Docket No. CV 01 0511526 (June 17, 2004, Tanzer, J.) (remanding a case for further hearings regarding sanctions to be imposed on psychologist who had a personal and sexual relationship with patient).
The only allegation that may support a CUTPA claim is the plaintiff's allegation that the defendant held himself out to the general public as a licensed psychologist and a member of the American Psychological Association and the Connecticut Psychological Association. An improper advertisement can form the basis of a CUTPA violation because advertising is an entrepreneurial aspect of the practice of medicine. Janusauskas v. Fichman, supra, 264 Conn. 811-12. The defendant's advertisement is, however, similar to the advertisement that the Supreme Court decided was insufficient in Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 699 A.2d 964 (1997). In Haynes the plaintiff alleged that the defendant held itself out as a certified major trauma center, although it lacked adequate staff and training to handle such emergencies. Id., 38-39. The court held "that this representation is simply what all physicians and health care providers represent to the public — that they are licensed and impliedly that they will meet the applicable standard of care. If they fail to meet the standard of care and harm results, the remedy is not one based on CUTPA, but upon malpractice." Id., 39; see also Janusauskas v. Fichman, supra, 264 Conn. 810 (holding that defendant's representation that he was leading doctor in field only meant he must meet applicable standard of care for leading doctors in field and that the only action that may be brought against defendant for failure to meet that standard must be based in malpractice and not CUTPA). The defendant's advertisements to the general public do no more than state his educational background, the location of his practice and the fact that he is a licensed psychologist in Connecticut. The advertisements are merely informing the public that the defendant will live up to the applicable standard of care for licensed psychologists in the state of Connecticut. As a result, the plaintiff's only remedy for violation of that standard is found in malpractice, and not CUTPA.
Because count three does not contain any allegations that the entrepreneurial or business practices of the defendant caused any harm to the plaintiff, the plaintiff has failed to allege a legally sufficient CUTPA claim. The defendant's motion to strike count three is granted.