Opinion
No. 5100717
September 17, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE #110
The revised five-count complaint in the present action contains the following factual allegations. On September 15, 2003, the plaintiff, Richard Blinderman, his wife, Lori Blinderman, and their minor child, started seeing the defendant, Reuben Spitz, a licensed family psychologist, for counseling regarding family and marital issues. During the course of counseling, the plaintiff revealed personal information at the request of the defendant and was prescribed and began taking anti-depressants and anti-anxiety drugs that enabled him to deal with his family and marital problems. The plaintiff stopped seeing the defendant as a counselor during the summer of 2004, after the defendant advised him that he no longer needed treatment. The defendant continued to see the plaintiff's wife and child as their counselor until December 2005. The defendant initiated a personal and sexual relationship with the plaintiff's wife starting in December 2004, that continues to this day. While he was engaged in the affair, in May and June of 2005, the defendant, acting through the plaintiff's wife, recommended that the plaintiff seek further counseling. The plaintiff eventually separated from his wife in November 2005, and she filed for divorce on January 20, 2006, a week after the defendant's wife filed for divorce. The plaintiff did not learn of the affair until March 3, 2006.
In counts one, two and three of the revised complaint the plaintiff alleges claims against the defendant for professional negligence and for intentional and negligent infliction of emotional distress. In the fourth 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 five, the plaintiff alleges reckless and wanton conduct by the defendant.
On April 12, 2007, the defendant filed a motion to strike count four, with a memorandum of law in support, on the grounds that count four is legally insufficient because allegations of medical malpractice cannot form the basis of a CUTPA violation and the plaintiff fails to allege sufficient facts to support a CUTPA claim based on the defendant's entrepreneurial or business practices. On May 4, 2007, the plaintiff filed a memorandum in opposition. On May 16, 2007, the defendant filed a reply memorandum in support.
The plaintiff subsequently refiled the motion to strike on May 10, 2007, and it was renumbered as #110.
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 his allegations are limited to medical malpractice, and he fails to include any allegations regarding the entrepreneurial or business practices of the defendant.
The plaintiff argues that his allegations are sufficient to support a CUTPA claim because he alleges that the defendant has held himself out as a psychologist trained to counsel the general public, and the defendant has harmed Connecticut consumers by carrying on an inappropriate relationship with the plaintiff's wife, violating numerous ethics codes, committing professional negligence and betraying patient privacy rights. The plaintiff also argues that the present case is distinguishable from the cases cited by the defendant because he has alleged conduct by the defendant that is offensive to public policy and Connecticut statutory and common law.
In his reply memorandum, 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 his allegations regarding medical malpractice. The defendant also argues that although the plaintiff has alleged that the defendant has engaged in the business of providing mental health services, he has not shown that it was the defendant's conduct in the entrepreneurial, commercial or business aspect of that practice caused the plaintiff's injury.
"[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 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 the plaintiff's wife 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]"); Towbin v. Board of Examiners of Psychologists, 71 Conn.App. 153, 167-69, 801 A.2d 851, cert. denied, 262 Conn. 908, 810 A.2d 277 (2002) (trial court properly dismissed plaintiff's appeal because substantial evidence suggested that plaintiff psychologist breached standard of care by engaging in sexual relationship with mother of minor patients); 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 only allegation that may support a CUTPA claim is the plaintiff's allegation that the defendant advertised to the general public that he was 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 website advertisement does no more than state his educational background, the location of his practice and the fact that he is a licensed psychologist in Connecticut. The advertisement is 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.
The plaintiff attached a copy of the defendant's website in support.
Because count four 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 four is granted.