Opinion
No. FST CV 06-5001340 S
December 14, 2010
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT DATED APRIL 30, 2010 (#247.00)
This case tests the limits of the causes of action against a hospital for its employee's sexual assault on a ninety-four-year-old female patient, the hospital's delays and cover ups in investigating and reporting the sexual assault and the effects thereof on her adult daughter.
The plaintiffs' Amended Complaint dated May 28, 2008 (#169.00) alleges that Santina Di Teresi was 96 years old. The Operative Complaint Second Amended Complaint dated February 12, 2010 (#212.00) alleges that Santina Di Teresi was 94 years old. Various other documents in the court file state that Santina Di Teresi was in her early 90s.
The defendants, Stamford Health System, Inc. and the Stamford Hospital ("hospital"), filed a Motion for Summary Judgment dated April 30, 2010 (#247.00) and a Supplemental Motion for Summary Judgment dated June 21, 2010 (#263.00) against twelve of the nineteen counts of the plaintiff's Second Amended Complaint dated February 12, 2010 (#212.00). The overarching legal concept raised in the Motion for Summary Judgment is: "While it may seem that there should be remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the rippling of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree." Waters v. Autuori, 236 Conn. 820, 828 (1996).
The standards for ruling on motions for summary judgment are both well established and familiar, yet they bear repeating and articulating in each instance where such relief is sought, lest an inference be drawn that such standards were not adhered to in a given case, or a suspicion arises that a different standard of review was followed. "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Mazurek v. Great American Ins. Co., 284 Conn. 16, 26 (2007).
In cases such as this, where "summary judgment [is] rendered upon the issue of liability only, without deciding damages, [it] is not a final judgment from which an appeal lies." Balf Co. v. Spera Construction Co., 222 Conn. 211, 212 (1992). This is because of the principle of law that, "judgment is not completed until damages have been assessed." Tureck v. George, 44 Conn.App. 154, 157, cert. denied, 240 Conn. 914 (1997). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500 (1988). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." Zielinski v. Kotsoris, 279 Conn. 312, 318 (2006).
"The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Id., 318-19.
"A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45. "[Section 17-46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding. The material must: (1) be based on personal knowledge; (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit." Barrett v. Danbury Hospital, 232 Conn. 242, 251 (1995).
"Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Allstate Ins. Co. v. Barron, 269 Conn. 394, 406 (2004). "Such assertions are insufficient regardless of whether they are contained in a complaint or a brief." New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, cert. denied, 235 Conn. 915 (1995). "Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact on a motion for summary judgment." Id., 245. However, the court may consider not only the facts presented by the parties' affidavits and exhibits, but also the "inferences which could be reasonably and logically drawn from them." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381 (1969).
The parties entered into a Stipulation and Waiver re: Motion for Summary Judgment dated August 12, 2010, which was submitted to this court. This five-page stipulation is not a formal pleading in the case but binds the parties to procedural matters set forth in the Stipulation. The Motion for Summary Judgment (#247.00) was filed April 30, 2010 and thereafter the court, Adams, J., on May 12, 2010 (#212.86) granted Plaintiffs' Request for Leave to Amend Complaint dated February 12, 2010 (#212.00) permitting the Second Amended Complaint (#212.00) to become the operative complaint. The parties have agreed and stipulated that this court may consider the nineteen-count May 12, 2010 Second Amended Complaint even though the Motion for Summary Judgment was filed prior to the filing of the Second Amended Complaint. In addition on June 21, 2010 the defendant filed a pleading entitled "Supplemental Motion for Summary Judgment" (#263.00). The Motion for Summary Judgment (#247.00) addressed Counts One, Four, Five, Seven, Eight, Nine, Ten, Twelve and Thirteen of the former complaint. Those counts are identical to those numbered counts in the Second Amended Complaint (#212.00) at issue. The Supplemental Motion for Summary Judgment (#263.00) makes it clear that the Motion for Summary Judgment (#247.00) is addressed to the Second Amended Complaint dated May 12, 2010 (#212.00). The parties further stipulated and agreed that the pleading (#263.00) shall be properly retitled and considered by the court as "Supplemental Motion for Summary Judgment." The Supplemental Motion for Summary Judgment (#263.00) addresses for the first time, Counts Sixteen, Seventeen, Eighteen and Nineteen of the Second Amended Complaint dated May 12, 2010 (#212.00). A formal motion was filed by the defendant entitled "Motion to Correct Title of Docket Entry No. (263) and Include an Order Page" dated August 12, 2010 (#300.00). That Motion to Correct was granted by another Judge of the Superior Court on August 23, 2010 (#300.86). The court therefore accepts the stipulation and agreement of the parties dated August 12, 2010 and considers that the original Motion for Summary Judgment (#247.00) has been amended by the Supplemental Motion for Summary Judgment (#263.00) and both motions are before this court. Both motions address twelve of the nineteen counts of the Second Amended Complaint dated May 12, 2010 (#212.00). The parties have abided by this court's written order dated July 20, 2010 (#247.86). The court will issue this Memorandum of Decision on the Motion for Summary Judgment (#247.00), which Memorandum of Decision will also address the issues raised in the Supplemental Motion for Summary Judgment (#263.00).
Some of the documents in support of the parties' respective positions were sealed since they contained personal identifying information. The parties thereafter redacted that personal identifying information by complying with the Practice Book requirements. They have refiled the redacted documents as pleadings #304.00, #305.00, #306.00, #307.00, and #308.00. These five pleadings were filed by the parties after the August 16, 2010 oral argument and the parties have represented that none of those post-argument filings contain any information different than previously submitted to the court prior to the August 16, 2010 oral argument, except for the redacted personal information.
The following documents were presented to the court as the operative documents dealing with the twelve issues raised by the Motion for Summary Judgment. The Plaintiffs filed the following documents: (1) Second Amended Complaint dated May 12, 2010 (#212.00) (The Second Amended Complaint itself was not separately filed or docketed); (2) Motion to File Memorandum of Law in Excess of Thirty-Five Pages dated July 15, 2010 (#271.00) (This Motion was granted by another Judge on July 26, 2010 in order #271.86.); (3) Objection to Defendants' Motion for Summary Judgment dated July 15, 2010 (#272.00); (4) Exhibits in Support of Objection to Summary Judgment dated July 15, 2010 (#273.00); (5) Exhibits in Support of Objection to Summary Judgment dated July 15, 2010 (#274.00); (6) Exhibits in Support of Objection to Summary Judgment dated July 15, 2010 (#275.00); (7) Exhibits in Support of Objection to Summary Judgment dated July 15, 2010 (#276.00); (8) Exhibits in Support of Objection to Summary Judgment dated July 19, 2010 (#278.00); (9) Surreply dated August 11, 2010 (#298.00); and (10) Exhibits to Surreply dated August 11, 2010 (#299.00); and (11) Exhibits in Support of Opposition to Summary Judgment dated August 16, 2010 (#301.00). The Defendants filed the following documents: (1) Motion for Summary Judgment dated April 30, 2010 (#247.00); (2) Memorandum in Support of Motion for Summary Judgment dated May 5, 2010 (#248.00); (3) Supplemental Motion for Summary Judgment dated June 21, 2010 (#263.00); (4) Reply to Plaintiffs' Objection to Motion for Summary Judgment dated July 18, 2010 (#277.00); (5) Exhibits to Reply dated August 16, 2010 (#302.00). The parties have submitted more than one thousand one hundred pages in support of their respective twelve legal arguments addressed to the Second Amended Complaint dated May 12, 2010 (#212.00).
There are seven counts that are not the subject of this Motion for Summary Judgment.
Count Two: Vicarious Liability by Santina Di Teresi against the hospital: "On March 6, 2007, the Court (Tobin, J.), rendered judgment in favor of the defendants as to their motion to strike Counts two . . . of the plaintiffs' complaint, dated March 22, 2006." . . . The plaintiffs continued to include Counts Two . . . in this Second Amended Complaint, thereby and intending to preserve their right to appeal the Court's judgment on the defendants' motion to strike Counts Two . . . upon a final judgment in this matter. The incorporated paragraphs in Counts Two . . . correspond to the paragraphs of the plaintiffs' complaint dated March 22, 2006." The preceding is footnote 1 from the plaintiffs' Second Amended Complaint dated May 12, 2010 (#212.00). Therefore Count Two is no longer pending at the trial level.
Count Three: Negligent Supervision by Santina Di Teresi against the hospital. This Count Three is not subject to the Motion for Summary Judgment and remains a cause of action at trial.
Count Six: Battery by Santina Di Teresi against Robert E. Mayes. This Count Six is not subject to the Motion for Summary Judgment and remains a cause of action at trial.
Count Ten: Negligent Infliction of Emotional Distress by Santina Di Teresi, against the hospital. This Count Ten is not subject to the Motion for Summary Judgment and remains a cause of action at trial.
Count Eleven: Intentional Infliction of Emotional Distress by Santina Di Teresi against Robert E. Mayes. This Count Eleven is not subject to the Motion for Summary Judgment and remains a cause of action at trial.
Count Fourteen: Medical Malpractice by Santina Di Teresi against the hospital. This Count Fourteen is not subject to the Motion for Summary Judgment and remains a cause of action at trial.
Count Fifteen: Bystander Emotional Distress by Virginia Di Teresi against the hospital. The Second Amended Complaint dated May 12, 2010 (#212.00) under Count Fifteen contains footnote #3 as follows: "As previously noted, the Court (Tobin, J.) granted the Hospital's motion to strike the plaintiffs' Count Fifteen, Bystander Emotional Distress. The plaintiffs reserve their right to appeal from the order striking this count. The paragraphs in this count fifteen correspond to the allegations contained in operative complaint at the time of Judge Tobin's order." Therefore Count Fifteen is no longer pending at the trial level.
The court will now label each of the twelve counts that are subject to the Motion for Summary Judgment (#247.00) as amended by the Supplemental Motion for Summary judgment (#263.00). The court will address the legal and factual issues in this Memorandum of Decision in twelve separate sections following the twelve numbered counts.
Count One: Premises Liability by Santina Di Teresi against the hospital.
Count Four: Violation of Connecticut's Patient's Bill of Rights, General Statutes § 19a-550 by Santina Di Teresi against the hospital.
Count Five: Violation of Patient's Bill of Rights, General Statutes § 17a-540 et seq. by Santina Di Teresi against the hospital.
Count Seven: Intentional Infliction of Emotional Distress by Virginia Di Teresi against the hospital.
Count Eight: Intentional Infliction of Emotional Distress by Santina Di Teresi against the hospital.
Count Twelve: Connecticut Unfair Trade Practices Act (CUTPA) by Santina Di Teresi against the hospital.
Count Thirteen: Connecticut Unfair Trade Practices Act (CUTPA) by Virginia Di Teresi against the hospital.
Count Sixteen: Breach of Fiduciary Duty by Santina Di Teresi against the hospital.
Count Seventeen: Breach of Fiduciary Duty by Virginia Di Teresi against the hospital.
Count Eighteen: Recklessness by Santina Di Teresi against the hospital.
Count Nineteen: Recklessness by Virginia Di Teresi against the hospital.
In some of the counts Santina Di Teresi claims damages for the sexual assault itself, in other counts she claims emotional damages for the delay and cover up and in some counts she is claiming damages for both.
On March 9, 2004 the plaintiff, Santina Di Teresi, was admitted to the Stamford Hospital with a diagnosis of pneumonia, new onset diabetes mellitus and a high blood glucose level. The plaintiff, Virginia Di Teresi, is Santina Di Teresi's daughter. Santina Di Teresi was characterized by the hospital as a "Total Care Patient," which refers only to those patients that are unable to care for themselves. Santina Di Teresi had a limited capacity to communicate and furnished no statements to the investigators or health care providers about the incidents that formed the basis of this lawsuit. On January 27, 2008 Santina Di Teresi died. The plaintiffs, Emmanuel J. Di Teresi and Virignia Di Teresi, were appointed co-executors of the Estate of Santina Di Teresi.
In its April 30, 2010 Motion for Summary Judgment, the defendants hospital, recite the numbers of the twelve counts challenged and then state: "There are no genuine issues of material fact which exist as to the claims asserted therein against the undersigned defendants and defendants are entitled to judgment as a matter of law."
In their Objection to the Motion for Summary Judgment (#272.00, page 1) the plaintiffs argue as follows: "This case arises out of the sexual assault of Santina Di Teresi (hereinafter referred to as `Santina') by defendant Robert Mayes. The assault took place at The Stamford Hospital where Mayes was employed as a certified nurse's assistant, and where Santina was a patient. Following the assault, the Stamford Hospital sought to protect itself from liability for its employee's conduct by attempting to conceal the assault, failing to notify the victim's family or her doctor, and by failing to notify law enforcement. In addition, the Hospital permitted Mayes to discard or otherwise destroy forensic evidence of his crime and did not even attempt to console the victim, let alone provide her with medical care or treatment, after discovering the assault." "There is a myriad genuine issues of material fact in this case that preclude summary judgment in favor of the Hospital."
On March 23, 2004 the hospital assigned the defendant, Robert E. Mayes, a certified nurses' assistant employed by the hospital, a section of rooms known as Main Three South. On March 23, 2004 Santina Di Teresi occupied one of the double rooms in Main Three South and was the only patient in that room. Her room was at the end of a hallway, four or five rooms from the Main Three South nursing station, the furthest patient room from the Main Three South nursing station. Among the duties that Mayes had been assigned to perform for patients at Main Three South including the plaintiff Santina Di Teresi was to bathe and change the patients as well as turn the patients to avoid bed sores. On March 23, 2004 at approximately 10:30 a.m. Latina Futrell, a registered nurse employed by the hospital, walked into Santina Di Teresi's hospital room to check on an odor of feces coming from the room. A curtain was drawn between the two beds. Nurse Futrell walked around the curtain and saw Mayes sexually assaulting Santina Di Teresi. Nurse Futrell immediately voiced a verbal protest. "Hey. What are you doing." Mayes looked up at her, stopped the sexual assault, held a diaper in his hand and said "I'm just cleaning her. She'll be ready in a minute. I'm just cleaning her up." Nurse Futrell then walked out of the room to obtain help. She said in her deposition: "I just immediately thought go get help, so I went to go get help." Nurse Futrell reported the incident to a staff member at Main Three South and then returned with that staff person to speak to Mayes. In the meantime Mayes had left Santina Di Teresi's room. The Mayes and Futrell conversation took place in a separate vacant hospital room. Mayes denied to Nurse Futrell that he was sexually assaulting Santina Di Teresi claiming that he was changing her diaper.
Both plaintiffs have made claims against the hospital for the post-sexual assault activities of the hospital and its staff and agents: (1) the hospital concealed for an unreasonable period of time its employee's misconduct from Santina Di Teresi's daughter, the plaintiff, Virginia Di Teresi, who held a power of authority for Santina Di Teresi; (2) the hospital delayed informing Virginia Di Teresi of the employee's misconduct until 5:00 p.m. on March 23, 2004 even though the hospital knew Virginia Di Teresi was in the hospital visiting her mother all that afternoon commencing at 2:00 p.m.; (3) the hospital failed to inform the Stamford Police of the incident for over ten hours; (4) the hospital permitted Mayes to remain in the hospital room immediately after the sexual assault with Santina Di Teresi; (5) the hospital permitted Mayes to continue to bathe, turn and change the clothes of Santina Di Teresi after the sexual assault; (6) the hospital failed to preserve evidence of Mayes' wrongful act by allowing Mayes to dispose of Santina Di Teresi's soiled linens and gown after it was discovered that Mayes had sexually assaulted Santina Di Teresi; (7) the hospital did not report to Santina Di Teresi's physician or any other physician the sexual assault until seven hours after the sexual assault; (8) the hospital failed to provide Santina Di Teresi with adequate and medical care or treatment in an adequately or timely fashion after discovering Mayes' sexual assault, and (9) the hospital failed to provide Santina Di Teresi with medical attention and a gynecological examination in an adequate or timely manner for purposes of preserving forensic evidence of Mayes' sexual assault.
From an examination of the documents submitted by both parties the court determines that the following are uncontested facts. Santina Di Teresi was admitted as a patient on March 9, 2004 with diagnoses of a new onset diabetes mellitus, pneumonia and hyperosmorastate. In addition she was suffering from Parkinson's disease, advanced Alzheimer's, dementia, incontinence and an inability to communicate. She remained in-patient from March 9, 2004 through and after March 23, 2004. She was initially cared for in the ICU unit and transferred to a post surgical floor known as Main Three South. In the morning of March 23, 2004 she was being cared for by Latina Futrell, a registered nurse employed by the hospital. The confrontation by nurse Futrell and Mayes in the separate room was witnessed by another hospital staff member. Then Futrell immediately relayed the events to nurse Anna Jose, her charge nurse, who in turn contacted the nursing supervisor, all employees of the hospital. Then Nurse Jose entered Santina Di Teresi's room to look on her and thereafter both nurse Futrell and nurse Jose proceeded to a meeting of the hospital administrators on the incident in question. On March 23, 2004 at approximately 11:00 a.m. Mayes was removed from the hospital premises according to hospital written records read by charge nurse Jose at her deposition. According to a report in the hospital file dated and signed on March 23, 2004: "The patient is unable to tell event. She has dementia and is bed ridden." Nurse Bridget Dowd examined Santina Di Teresi at approximately 11:00 a.m. on March 23, 2004 and treated and assessed her three times between 12 noon and 3 p.m. on March 23, 2004. Nurse Dowd was not informed about the sexual assault. Santina Di Teresi's blood sugar levels were checked by the hospital staff at 12:16 p.m. on March 23, 2004. Conferences were held through the remainder of the morning into the early afternoon with representatives of the hospital's Risk Management Committee, Human Resources Department and Security Staff. A conference call with the hospital's outside legal counsel took place. Upon the advice of outside legal counsel, the hospital was advised to bring Mayes back and obtain a statement from him, to call the police and to arrange for the chief of medicine to conduct a rape examination of Santina Di Teresi. Mayes was contacted and at approximately 4:00 p.m. on March 23, 2004 Mayes returned to the hospital where he was met by members of the Human Resources Department and the Director of Security. Mayes again denied that any sexual assault occurred stating that he was changing her diaper when Nurse Futrell walked into the room at 10:30 a.m. Sometime after 4:30 p.m. on March 23, 2004 Santina Di Teresi's primary physician, Dr. Santi Neuberger, was called by the hospital staff and for the first time informed of the incident. Shortly thereafter Virginia Di Teresi, Santina Di Teresi's daughter, was called by the hospital staff and informed for the first time of the incident. The hospital called the Stamford Police Department twice on March 23, 2004 and reported the incident first at 4:30 p.m. and later at 8:45 p.m. The Stamford Police report verifies both these times. The deposition of a police officer calls into question the 4:30 p.m. report. In any event the hospital concedes that it delayed calling the police for over six hours. Therefore whether there was a six-or ten-hour delay is not a genuine issue of material fact. The police could not obtain a statement from Santina Di Teresi due to her dementia and her inability to communicate. A sexual medical examination was performed on Santina Di Teresi at the hospital at 9:00 p.m. by a gynecologist and a "rape kit" exam was performed. These examinations revealed no evidence of physical injury, trauma, penetration or ejaculate. A registered nurse examined Santina Di Teresi and found no physical injury. A gynecologist examined Santina Di Teresi, which showed no evidence of trauma. Her treating physician examined her and found no injury due to a sexual assault.
The court will now discuss each of the twelve counts that are the subject of this Motion for Summary Judgment.
Count One Premises Liability by Santina Di Teresi against the hospital.
The Second Amended Complaint alleges: "12. During her stay at Stamford Hospital Santina Di Teresi was a business invitee of the hospital;" "13. The Hospital owed Santina Di Teresi a duty to exercise care to protect her from dangerous conditions at the Hospital," "27. The Hospital knew or should have known of the risk of harm to Santina Di Teresi at its facility in that; (a) The Hospital knew that its employees had virtually unrestricted access to patients such as Santina Di Teresi and the ability to inflict harm upon them if not properly trained, monitored and supervised; (b) The Hospital knew or should have known that placing Santina Di Teresi in a hospital room at the end of the hall and further away from the nurses' station unnecessarily exposed her to risks of injury and danger; (c) As a `Total Care Patient' and in light of her condition, Santina Di Teresi was among the most vulnerable of patients in Stamford Hospital; (4) As a `Total Care Patient', and in light of her condition, Santina Di Teresi was unable to protect herself from unwanted touching by another; (e) As a `Total Care Patient', and in light of her condition, Santina Di Teresi was unable to defend herself from the unwanted sexual advances of another; (f) As a `Total Care Patient', in light of her condition, Santina Di Teresi had a limited capacity to alert hospital personnel that she was in distress; (g) As a `Total Care Patient', in light of her condition, hospital personnel, including male certified nurse's assistants, were required to clean, bathe and dress Santina Di Teresi; and (h) As a `Total Care Patient' and in light of her dementia and contractures, two hospital personnel should work together to bathe and change Santina Di Teresi." "29. The Hospital's failure to use such reasonable care proximately caused Santina Di Teresi's injuries." The injuries claimed are: "a sexual assault and battery, personal indignity, physical and emotional pain, suffering, mental anguish and diminution of the enjoyment of her life."
The plaintiff has labeled Count One as "Premises Liability," essentially claiming that the hospital failed to use reasonable care. Count One is a negligence claim. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation and actual injury." Considine v. Waterbury, 279 Conn. 830, 858 (2006).
Although the allegations of the complaint are not clear concerning the street address of the hospital building at which Main Three South is located and the complaint contains no allegation that the hospital was the owner of the real property in question, neither party has addressed that issue. The court therefore will treat as alleged and admitted that the hospital was the owner of the real property on which Santina Di Teresi's hospital room was located at all times including March 23, 2004.
The plaintiffs allege that Santina Di Teresi was a business invitee to which the hospital filed an insufficient knowledge answer. In its answer the hospital did admit that Santina Di Teresi was a patient in the hospital on the dates alleged. The hospital admitted that "on March 23, 2004, Santina Di Teresi was a business invitee of the hospital" in a pleading dated April 13, 2009. The court will therefore treat as alleged and admitted that Santina Di Teresi was a business invitee of the hospital at all times alleged.
To prevail in a cause of action against a landowner for injury sustained on the landowner's property the plaintiff must prove; (1) the landowner failed to reasonably inspect and maintain the premises to make them reasonably safe; or (2) the landowner failed to warn of dangers that the plaintiff could not reasonably be expected to discover; and (3) that the landowner had actual or constructive notice of the specific danger that was the proximate cause of the plaintiff's injuries. Gargano v. Azpiri, 110 Conn.App. 502, 508 (2008).
Typically, under traditional premises liability doctrine, [f]or [a] plaintiff to recover for the breach of a duty owed to [her] as [a business] invitee, it [is] incumbent upon [her] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [her injury] or constructive notice of it . . . [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it. (Internal quotation marks omitted.) Fisher v. Big Y Foods, Inc., 298 Conn. 414, 418 n. 9, 3 A.3d 919 (2010); see also 2 Restatement (Second), Torts § 343, pp. 215-16 (1965). As our Supreme Court observed, "to recover under our current law, the plaintiff [is] required to prove that the defendant had had actual or constructive notice of the specific defect that caused the plaintiff's injuries." (Emphasis added.) Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 164, 914 A.2d 529 (2007).
James v. Valley-Shore Y.MC.A., Inc., 125 Conn.App. 174, 178-79 (2010).
Count One does not allege a standard defective premises case despite the fact that Count One is labeled "Premises Liability." There appears to be no allegations whatsoever that a physical structure of the hospital building was the cause of Santina Di Teresi's injuries such as a defective stairway, door or floor.
The defendants have moved for Summary Judgment on Count One on the basis of lack of duty. "Our Supreme Court has stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." Lachowicz v. Rugens, 119 Conn.App. 866, 868-69 (2010); Lodge v. Arett Sales Corp., 246 Conn. 563, 572 (1998). "Our first step in an analysis of whether a duty exists and the extent of the defendant's duty . . . is to determine the foreseeability of the plaintiffs' injury . . . (Internal quotation marks omitted.) Id. It is a well established tenet of our tort jurisprudence, however, that due care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable. See Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 345, 162 N.E 99 (1928) . . . A defendant is not required to take precautions against hazards that are too remote to be reasonably foreseeable . . . Due care is always predicated on the existing circumstances. (Citations omitted, internal quotation marks omitted.) Lodge v. Arett Sales Corp., supra, 246 Conn. 575." Lachowicz v. Rugens, supra, 119 Conn.App. 869. "Although it has been said that no universal test for duty has ever been formulated; W. Prosser W. Keeton, supra, § 53, p. 358; our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant." Allen v. Cox, 285 Conn. 603, 610 (2008).
In Demers v. Rosa, 102 Conn.App. 497 (2007), the court discussed this test in a claim by a plaintiff police officer who sought recovery of damages for injuries that he sustained when he slipped on an icy driveway after a fellow officer had placed the defendant's roaming dog into a police cruiser. The trial court determined that it was reasonably foreseeable that a police officer could be injured while responding to a complaint of a roaming dog. The Appellate Court reversed and found that although the injuries that occurred while attempting to capture a dog or when the dog startles an officer that causes him to slip and fall could be considered within the scope of the risk of allowing the dog to roam the necessary relationship between the negligence of the defendant in allowing the dog to roam, and the direct cause of the injury, the slippery driveway, was missing. "Here, although the dog's roaming was the impetus for the plaintiff's trip to the Bannon residence, it can be viewed only as a `remote or trivial' cause of his fall and subsequent injury. As such, we reject the suggestion that by allowing the dog to roam on a snowy or icy day, the plaintiff should have been able to foresee that a police officer would slip and fall, not while catching the dog, but while standing beside a vehicle containing the dog." Id., 505.
"Furthermore, if we accepted this argument, the lens of foreseeability could be expanded to encompass generally any type of harm sustained in the midst of responding to a call during inclement weather. Our Supreme Court has never sanctioned such a broad view of the legal concept of foreseeability. On the contrary, the court has stated that the general foreseeability of the harm that occurred cannot justify the imposition of liability if the direct cause of the accident was not reasonably foreseeability. See Lodge v. Arett Sales Corp., supra, 246 Conn. 574. Furthermore, the court has admonished that the approximate cause requirement must be used to temper the expansive view of causation in fact so as to exclude `remote or trivial actual causes' of a harm. (Internal quotation marks omitted.) Doe v. Manheimer, supra, 212 Conn. 758." Demers v. Rosa, supra, 102 Conn.App. 505.
In examining the allegations of the complaint and the documents that support the plaintiff's position, the plaintiffs' allegations of foreseeability come down to the following: the employees of the hospital have access to the patients at all times; Santina Di Teresi was a Total Care Patient; She needed a high level of care; She was unable to communicate or otherwise defend herself; She was assigned a hospital room on Three Main South that was at the end of a hallway, her room being some distance away from the nursing station; Certified Nursing Assistants (CNAs) were required by the hospital to clean, bathe and change Total Care Patients; nurses and CNAs were both male and female; CNAs were permitted to perform these duties alone without the presence of other hospital staff; Mayes was assigned to assist Nurse Futrell on Main Three South on the morning of March 23, 2004; Nurse Futrell did not see or speak with Mayes that morning from 7:30 a.m. until 10:30 a.m; Nurse Futrell expected Mayes to seek her assistance when Mayes was ready to bathe, change and turn Santina Di Teresi that morning; and Mayes bathed, changed and turned Santina Di Teresi on the morning of March 23, 2004 without the assistance of any hospital staff. There is no genuine issue of material fact in dispute as to the above facts except as to the location of Santina Di Teresi's hospital room. The plaintiffs claim that her hospital room was located farthest away from the nurses' station at the end of the hall in room 3102. The defendants offered measurements of the location of room 3102. It was located: at the beginning of the hall and not at the end of a hallway, fifty feet from the nurses' station, twenty feet from a medical supply station, five feet from an alcove where rolling transport beds and wheelchairs are accessed and two feet away from the immediate adjacent hospital room 3104. Room 3104 was occupied by another patient on the morning of March 23, 2004 when the sexual assault occurred. The plaintiffs have not disputed these measurements or facts. Although there may be a dispute concerning the exact location of room 3102, that is not a genuine issue of material fact.
No evidence was offered to show that room 3102 in the location alleged by the plaintiffs violated any policy, regulation, statute or manual. There is no evidence that room 3102 was in a high crime area. There were 23 patients on Main Three South that morning. Three Main South had 28 beds and was managed by six floor nurses, a charge nurse, a clerical assistant in addition to each patient's physician. There were two certified nurse's assistants assigned to Three Main South, Amy Collins and Robert E. Mayes. A nurse manager was assigned to Three Main South and another unit, Three North. There is no evidence that there is any defect in the construction, repair and maintenance of the physical facility of the hospital.
There is no evidence that Mayes had a predilection to assault and that the predilection to assault was known to or should have been known to the hospital. There is no evidence of a failure of hospital security. There was no evidence that violent acts had been committed in patients' hospital rooms. As of March 2004 Mayes had been a hospital employee since May 1, 1995 as a CNA. Mayes' personnel records contained four notations: failing to document patient care (2003), failing to complete assignments on time (2003), using profanity to another employee (2000), and disconnecting an IV to permit a patient to go to the toilet (1995). There is no evidence that police presence was required on Three Main South. There was no evidence that heightened security measures were needed on Three Main South. The deposition of Judy Baluha, a nurse employed by the hospital since 1972 and Mayes' supervisor since 2001, revealed no prior complaints of violence by Mayes. Nurse Baluha testified that since 1972 she has no direct experience of a situation in which an employee was abusing a patient. The plaintiff's standard of care experts each testified at their depositions that they never heard of a sexual assault by a hospital employee of a patient of any of the hospitals they were associated with in their career. See Depositions of Dr. Ann Burgess, Dr. Geraldine Hall and Dr. John C. Shershow. The Joint Commission on Accreditation of Healthcare Organization (JCAHO) in a statistical report covering a number of years, noted that in 2004 there were twenty-four incidents of "Assaults, Rape and Homicides." From 1995 through 2004 the incidents of "Assaults, Rape and Homicides" in the JCAHO report were: 0, 2, 7, 4, 17, 16, 16, 6, 4, and 24. During the entire year of 2004, there were 36,942,000 hospital admissions according to the American Hospital Association. Twenty-four incidents compared to the 36,942,000 hospital admissions results in a .0000006495%. Rounded off, that percentage equates to zero. Such a percentage cannot establish foreseeability.
Count One only relates to the sexual assault and does not contain any allegations, as do later counts, of the hospital's delays in reporting, investigation or medical treatment or the hospital's cover up of evidence of the sexual assault. The plaintiffs' Count Three negligent supervision by Santina Di Teresi against the hospital is not the subject of this Motion for Summary Judgment and that Count Three is assigned for trial. The court finds that none of the risks of harm alleged in Count One paragraph 27 of the Second Amended Complaint (#212.00) were foreseeable to the hospital.
An examination of three cases involving claim against a landowner caused by the assault on the plaintiff by a third party highlights this lack of foreseeability. In the first case the plaintiff was sexually assaulted by a stranger who forced her from a public sidewalk to a vacant lot that abutted the public sidewalk. The defendant was the owner of the vacant lot, which lot had overgrown vegetation that shielded the area where the sexual assault occurred from the sidewalk and the street. The area had a high crime rate. The plaintiff sued the defendant landowner for negligence. The trial court concluded as a matter of law that the intentional act of a third party had not been within the scope of the risk of the defendant's negligence in failing to maintain his property.
The Supreme Court stated that the jury correctly found "cause in fact." The first component of legal cause is "causation in fact" . . ."The test for cause in fact is, simply, would the injury have occurred were it not for the actors of conduct." Kowal v. Hofher, 181 Conn. 355, 359 (1980). The second component of `legal cause' is proximate cause, which we have defined as actual case that is a substantial factor in the resulting harm . . ." Coburn v. Lenox Homes, Inc., 186 Conn. 370, 383 (1982). "`Remote or trivial [actual] causes are generally rejected because the determination of the responsibility for another's injury is much too important to be distracted by explorations for obscure consequences or inconsequential causes.' Kowal v. Hofher, supra, 359-60. `In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice. See generally Palsgraf v. Long Island R.R. Co., 248, N.Y. 339, 352, 354-56, 162 N. E. 99 (1928) (Andrews, J., dissenting.)" Boehm v. Kish, 201 Conn. 385, 391 (1986).
"We are not persuaded that a landowner should reasonably foresee that a condition on his property such as overgrown vegetation might provide a substantial incentive or inducement for the commission of a violent criminal assault between strangers. This is true although once such an incident does occur, it necessarily `could' have occurred. Violent crimes are actuated by a host of social and psychological factors. Although, as a matter of fact, it may be true that one of those actuating factors is mere opportunity for concealment, common experience informs us that such a factor is at most incidental. A prudent person who owns land abutting a public way would not, in our opinion, infer from his ordinary experience the possibility that overgrown vegetation will prompt or catalyze a violent criminal act. This theory ascribes far too much speculative imagination to a `reasonable' or `prudent' person. A person of ordinary caution is not required to be accomplished at making such recondite associations." Doe v. Manheimer, supra, 212 Conn. 748, 762.
"Indeed the evidence showed that the prior criminal activity occurring in the vacant lot abutting his property and the scope of the crime generally was nonviolent involving vagracy and the public consumption of alcohol." Id. 762. First, we decline to accept the plaintiff's argument suggesting that it was within the `scope of the risk' that the condition of the defendant's land might catalyze a criminal assault." Id. 761. "We conclude, therefore, that there was no `room for a reasonable disagreement' that the plaintiff did not establish that the condition on the defendant's land was a proximate cause of the sexual assault." Id. 770.
In the second case the plaintiff was robbed and murdered in the ground floor of the Bloomingdale's parking garage in downtown Stamford supporting a finding of liability for defective premises as against the defendant, the owner of the real property. "As applied to this case, the jury reasonably could have found that the particular harm involved, Javery's robbery and murder, had been within the foreseeable scope of the risk because the prior robberies that had occurred in the garage were crimes with a natural propensity to escalate into physical violence, including murder. Furthermore, given the criminal statistics that were available to the defendant, the recommendations of its own security supervisor and other employees, and the past violent crimes that had occurred within the garage and its immediate vicinity, the jury reasonably could have found that the defendant had been aware or should have been aware of the dangers of larceny, robbery, rape, felony murder and other similar crimes that are prevalent in a shadowy, isolated places, such as the dim parking garage in question." Stewart v. Federated Department Stores, Inc., 234 Conn. 597, 613 (1995).
In the third case the plaintiff was shot and killed by a third party in a stairway leading to the train platform in one of the defendant's train stations in South Norwalk, Connecticut. The jury found that the fatal shooting of the decedent was not foreseeable and therefore rendered a verdict for the defendant. At trial the plaintiff's offer of an expert was not permitted by the trial judge. The Supreme Court reversed finding that the plaintiff's expert, Kennish, would have been able to testify to matters that would have been related to issues of foreseability. "Kennish was expected to testify as to the lack of security at the South Norwalk train station, as well as to those measures that the defendant could have and should have taken to protect the public . . . The plaintiff also intended to have Kennish testify that the fatal attack against the decedent was foreseeable given the overall lack of security at the train station as well as the high crime rate in the surrounding area." Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 156 (2009).
In other contexts, Connecticut courts have found that allegations of failure to report do not meet the foreseeability test. Ward v. Greene, 267 Conn. 539, 557-58, 560 (2004) (Failure to report claim against a child care facility insufficient to meet foreseeability requirements citing Lodge v. Arett Sales, supra 246 Conn. 576); Mallory v. Hartford Roman Catholic Diocesan Corporation, Superior Court, judicial district of Waterbury at Waterbury Complex Litigation Docket Number X10-UWY CV07-5007645 S (February 24, 2009, Scholl, J.) (Allegations that the failure to report "would have likely prevented Ivan Ferguson from having further contact with the plaintiff, thereby preventing some or all of the sexual abuse" was held not to be legally foreseeable). Hollister v. Thomas, 110 Conn.App. 692, 703-04 (2008) ("As a matter of public policy, we additionally note that a finding of liability in response to a delay in reporting an emergency could deter an individual from reporting an emergency at all if that person thought that too much time had passed. As stated by the court, `fear of a civil action should not deter a citizen from seeking aid in the event of a conflagration'." The Appellate Court found no duty citing Lodge v. Arett Sales, supra 246, Conn. 580-81).
The plaintiffs cite one appellate court case and three trial court cases in support of its opposition to summary judgment on Count One premises liability. The plaintiffs argue that the cases establish foreseeability as an issue of fact for the trier. The court finds that none of the four cases supported the claim of foreseeability as to Count One, which sounds in liability based on a form of defective or dangerous premises. Burban v. Hill Health Corporation, Superior Court, judicial district of New Haven at New Haven, Docket Number CV01-0446764 S (December 12, 2006, A. Robinson, J.). Burban was a one-count complaint in negligent supervision. Count Three of this instant lawsuit alleges negligent supervision is ready for trial since the hospital is not claiming summary judgment to Count Three on a lack of forseseeability. Doe v. Talabi, Superior Court,. judicial district at Hartford at Hartford Docket Number HHD CV 07-5009974 S (August 7, 2009, Sheldon, J.) [ 48 Conn. L. Rptr. 382]. In Doe none of the ten counts claimed defective premises. Peterson PPA v. Boys and Girls Club of America, Superior Court, judicial district of Hartford at Hartford, docket number CV 07-5009783 S (May 5, 2009, Wagner, J.T.R.). This case involved a claim of premises liability and the court held that the early termination of a teenager dance on the defendant's premises due to a fight requiring all in attendance to gather in the parking lot unsupervised without giving the teenagers an opportunity to call for a ride from friends or relatives, with resulting injuries to the plaintiff in the crowded parking lot caused by an assault by some of the other teenagers, was foreseeable. The plaintiff adequately alleged in Peterson that the "defendant owed a duty to the plaintiffs to keep them in a safe area until transportation could be arranged." Gutierrez v. Thorne, 13 Conn.App. 493, 499 (1988). None of the three counts claimed defective premises. The essence of Gutierrez was negligent hiring and supervision of a male employee.
The court notes that Santina Di Teresi has pending Count Three Negligent Supervision of by Santina Di Teresi against the hospital, and Count Fourteen Medical Malpractice by Santina Di Teresi against the hospital. Neither of these two counts are subject to this Motion for Summary Judgment. In these two counts, Santina Di Teresi is claiming damages for the sexual assault.
The court finds that there is no genuine issue of material fact as to Count One. The court grants the Motion for Summary Judgment as to Count One Premises Liability by Santina Di Teresi against the hospital.
Count Four Violation of Connecticut's Patient's Bill of Rights, Gen. Stat. § 19a-550 by Santina Di Teresi against the hospital.
The plaintiff alleges that the hospital was a "chronic disease hospital" as that term is defined in Gen. Stat. § 19a-550(a)(1)(B). The plaintiff further alleges in paragraph 54 that:
The, Hospital negligently and/or willfully and in reckless disregard of the rights of Santina Di Teresi, failed to protect her from mental and physical abuse and failed to treat her with consideration, respect and full recognition of her dignity and individuality, in violation of General Statutes § 19a-550, in that the Hospital: a. Failed to protect Santina Di Teresi from the egregious sexual misconduct of its employee; b. Failed to provide Santina Di Teresi with a safe and secure environment; c. Concealed for an unreasonable period of time Mayes' conduct from Santina Di Teresi's daughter, plaintiff Virginia Di Teresi, and the Stamford Police; d. Waited approximately ten hours after Mayes sexually assault Santina Di Teresi before reporting the assault to Stamford Police Department; e. Failed to preserve evidence of Mayes' wrongful acts, by leaving Mayes alone with Santina Di Teresi, allowing him to bathe and change her gown after he committed the assault; f. Failed to preserve evidence of its employee's wrongful acts by allowing Mayes to dispose of Santina Di Teresi's soiled linens and gown after it had discovered that Mayes had sexually assault Santina Di Teresi; g. Waited approximately 7 hours before notifying Santina Di Teresi's physician, or any other physician of the sexual assault; h. Failed to provide Santina Di Teresi with adequate medical care or treatment in an adequate or timely fashion after discovering Mayes' sexual assault; and i. Failed to provide Santina Di Teresi with medical attention and a gynecological examination in an adequate or timely manner for purposes of preserving forensic evidence of Mayes' sexual assault.
The plaintiff claims that the hospital's violation of Gen. Stat. § 19a-550 caused her to suffer damages identical to those alleged in Count One: The Sexual assault itself and further emotional suffering.
Gen. Stat. § 19a-550 is entitled "Patient bill of rights." It is found in Title 19a "Public Health and Well-Being" and in Chapter 368v "Health Care Institutions." Gen. Stat. § 19a-550(e) states: "Any facility that negligently deprives a patient of any right or benefit created or established for the well-being of the patient by the provisions of this section shall be liable to such patient in a private cause of action for injuries suffered as a result of such deprivation . . . In addition, where the deprivation of any such right or benefit is found to have been wilful or in reckless disregard of the rights of the patient, punitive damages may be assessed." The Claim for Relief in the Second Amended Complaint dated February 12, 2010 (#212.00) claims "Compensatory damages under General Statutes § 19a-550" and "Punitive damages pursuant to General Statutes § 19a-550."
The statutory patient's bill of rights covers patients only in a "nursing home facility" or a "chronic disease hospital." A "chronic disease hospital" is defined by statute as "a long-term hospital having facilities, medical staff and all necessary personnel for the diagnoses, care and treatment of chronic diseases." Gen. Stat. § 19a-550(a)(1)(B). By statute, the patient's bill of rights does not apply to all hospitals, only the two above defined facilities. The plaintiff is alleging that "the Hospital was a `chronic disease hospital' as that term is defined in General Statutes § 19a-550(a)(1)(B)."
The hospital moves for summary judgment on the basis that the Stamford Hospital is licensed as a "general hospital" and does not hold a license as a "chronic disease hospital."
The plaintiff objects on two grounds: (1) this issue has already been ruled on unfavorably to the hospital in its motion to strike and (2) whether or not the hospital falls within the purview of Gen. Stat. § 19a-550 involves genuine issues of material fact and requires a statutory analysis that cannot be resolved in a motion for summary judgment. As to the first objection, the court notes that the hospital's motion to strike this Count Four was denied on March 6, 2007 by Judge Tobin. "As it is directed to the fourth count, the Hospital's motion to strike presents a classic `speaking motion' which must be denied. Liljedahl Bros., Inc. v. Grigsby, supra." Di Teresi et al. v. Stamford Health Systems, Inc., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 06-5001340 S (March 6, 2007, Tobin, J.). The licensing of the hospital was not set forth in the pleadings nor were the actual licenses contained in the pleadings before Judge Tobin. The issue raised by the hospital, that it was a "general hospital" and not a "chronic disease hospital," necessarily required evidence and information beyond that provided by the pleadings. Judge Tobin rightfully classified the hospital's motion as a speaking motion to strike. This court is not bound by the March 6, 2007 denial of the motion to strike since those licensing documents have now been provided to this court.
The second objection presents a question of statutory interpretation.
When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes." (Internal quotation marks omitted.) Id. Specifically, § 1-2z provides; "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." "The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Ziotas v. Reardon Law Firm, P.C., supra, 587.
Agleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 91-92 (2010).
The State of Connecticut, Department of Public Health issued license number 0059 a/k/a 00000059 to the Stamford Hospital, the defendant in this lawsuit. The license is printed on a Connecticut Department of Public Health form entitled: "Health Care Facilities Licensure." The "License Type" on License number 00000059 is "General Hospital." The Connecticut Department of Public Health has a license type, "Chronic Disease Hospital." The Department of Public Health separately licenses "Chronic Disease Hospitals." The Department of Public Health maintains a website in which a search of hospitals licensed as General Hospital and licenses Chronic Disease Hospital can be performed. www.dir.ct.gov/dph/scripts/hlthfacl.asp and www.dir.ct.gov/dph/Scripts/hlthfac.asp. A search of these public health records reveals that currently only five hospitals are licensed as "Chronic Disease Hospital" in Connecticut, none in Fairfield County.
Gen. Stat. § 19a-550 is silent on whether the statutory definition for "chronic disease hospital" is satisfied by the Department of Public Health's selection of a type of license. The Department of Public Health issues separate licenses for "General Hospital" and "Chronic Disease Hospital," "Chronic and Convalescent Nursing Home," "Residential Care Home," "Assisted Living Services Agency," among others. Currently the Stamford Hospital holds its license as a "General Hospital" and is not licensed as a "Chronic Disease Hospital."
Gen. Stat. § 17a-490 contains the definitions used in Chapter 368v. There is no definition for "General Hospital" or "Chronic Disease Hospital" in Gen. Stat. § 17a-490. Its definition of "Hospital" is "an establishment for the lodging, care and treatment of persons suffering from disease or other abnormal physical or mental conditions and includes inpatient psychiatric services in general hospitals." Thus the phrase "general hospital" appears in the statute as a subset of the general term "Hospital." "Nursing home facility" is not defined in Gen. Stat. § 19a-490 but is referenced in Gen. Stat. § 19a-550 as being defined by Gen. Stat. § 19a-521.
The only statutory definition for "chronic disease hospital" is "a long term hospital having facilities, medical staff and all necessary personnel for the diagnosis, care and treatment of chronic disease." Gen. Stat. § 19a-550(a)(1)(B). Gen. Stat. § 19a-550 is found in chapter 368v which is focused on the health care institution itself as opposed to the type of care offered in that institution. A review of similar statutes contains the same institution focus. Gen. Stat. § 3-55S differentiates between a "general hospital facility" and a "chronic disease hospital" for payments of certain state grants as does Gen. Stat. § 12-20a(c). The physicians emergency psychiatric commitment statute contains the following reference "For purposes of this section, `hospital' includes a licensed chronic disease hospital with a separate psychiatric unit." Gen. Stat. § 17a-502(1). State of Connecticut supplementary payments to recipients of Medicaid are provided by Gen. Stat. § 17b-106(b), which states: "For the purpose of this subsection, long-term care facility means a licensed chronic and convalescent nursing home, a chronic disease hospital, a rest home with nursing supervision, an intermediate care facility for the mentally retarded or a State home or institution." "Free standing chronic disease hospitals" are distinguished from an "acute care general hospital," for rates to be paid by the State to those hospitals. Gen. Stat. § 17b-239. Gen. Stat. § 19a-491(a) mentions a "chronic disease hospital license." Gen. Stat. § 19a-521b requires each licensed chronic disease hospital to have a three-foot bed clearance. Gen. Stat. § 19-535(b) deals with the transfer and discharge of patients and defines a facility as "a chronic disease hospital which is a long-term hospital having facilities, medical staff and all necessary personnel for the diagnosis, care and treatment of chronic diseases." Gen. Stat. § 19a-537(3) is addressed to reservation of beds for nursing homes and defines a hospital: "a general short-term hospital licensed by the Department of Public Health or a hospital for mental illness, as defined in Section 17a-495, or a chronic disease hospital, as defined in Section 19-13-D1(a) of the Public Health Code." Thus the legislature has adopted the licensing of hospitals by the Department of Public Health as a distinguishing factor. The legislature also recognized the state regulations as also being a distinguishing factor. The legislature classified a chronic disease hospital by the licenses it possessed as issued by the Department of Public Health. Gen. Stat. § 19a-617b(a)(1). Gen. Stat. § 19a-639, requiring certificates of needs, distinguished between a "short-term acute care general hospital" and a "chronic disease hospital." The legislature recognized a separate license for a "Chronic disease hospital" in Gen. Stat. § 27-106a(b). When the legislature established the hospital service corporation act, it distinguished between general hospitals and chronic disease hospitals. Gen. Stat. § 38a-199(a) and Gen. Stat. § 38a-214(c).
The court now turns to the Regulation of State Agencies. The State of Connecticut has promulgated Regulations of State Agencies classifying defining and establishing requirements for a variety of health care institutions.
State Regulations Sec. 19-13-D, states: "Institutions license under Sections 19a-490 to 19a-503 inclusive and 19a-507a(3) of the Connecticut General Statutes, as amended, are classified and defined as follows: (a) Classifications. (1) Short-term hospitals; (A) General; Children's general hospitals; (B) Special: (2) long-term hospitals: (A) chronic disease: (3) other institutions . . ." Those other facilities listed include "other institutions including residential care homes, rest homes with nursing supervision, chronic and convalescent nursing homes, multi-care institutions and industrial health facilities."
The licensing web site has only six of its 26 licensing categories listed on its website using the word "hospital": Children's Hospital, Chronic Disease Hospital; General Hospital, Hospital; Hospital for Mentally Ill Patients and Maternity Hospital. This website licensing nomenclature does not exactly dovetail with the listing of the institutions in Regulations 19-13-D1. Among those with similar language in both the Regulations and the Department of Public Health website licensing categories are: General Hospital, Children's General Hospital and Chronic disease hospital.
The State Agency Regulations contains detailed requirements for a number of these categories with similar language from the licensing website and Section 19-13-D1. Section 19-13-D3 is entitled "Short-term hospitals, general and special." These regulations were effective March 19, 1987, amended March 30, 2004 and further amended August 3, 2007. Detailed standards for a general hospital are contained in the Regulations including the following categories, physical plant, administrator, medical staff, medical records, nursing service, diagnostic and therapeutic facilities, pharmacy, dietary service, general, emergency, maternity service, infection control, Sec. 19-13-D4 is entitled "Long-term hospitals: chronic disease hospital." These regulations were effective December 1, 1977 and not have been amended to date. Detailed standards for a chronic disease hospital are contained in these Regulations including such general categories as the above stated for general hospitals except that the chronic disease hospital has no maternity services category but does contain a section entitled the "Special conditions . . . necessary for the care of patients with a wide range of chronic diseases." Necessarily the language under each of these categories is different. For example, under Sec. 19-13-D3(a) General Hospital Physical Plant mention is made of the components of the maternity service including labor/delivery and recovery/postpartum units. No such requirement is contained in Sec. 19-13-D5(a) chronic disease hospital physical plant. Under the medical staff component each general hospital shall have the following departments: medicine, pathology and radiology. There are no such departmental requirements for chronic disease hospitals in Sec. 19-13-D5(c).
"The legislative history of General Statutes § 19a-550 suggests that the definition of `chronic disease hospital' as used in the statute was meant to correspond to its definition in the regulations of the department of health services. The legislative history also refers to the `official categorization' of certain hospitals meant to be covered by General Statutes § 19a-550." Epstein Administrator v. Jalbert, Superior Court, judicial district of Hartford New Britain at Hartford, Docket Number CV 93-0525834 (September 9, 1997, Wagner, J.T.R.) (holding that the University of Connecticut Health Center/John Dempsey Hospital, licensed as a general hospital not as a chronic disease hospital, did not fall under the scope of Gen. Stat. § 19a-550).
The court finds that Gen. Stat. § 19a-550 is plain and unambiguous and that the licensing of the institution controls its characterization as a "chronic disease hospital." Agleh v. Cadlerock Joint Venture II, L.P., supra, 299 Conn. 94. The silence in the statute by definition of "chronic disease hospital" of the Department of Public Health's licensing procedure does not render Gen. Stat. § 19a-550 ambiguous. Id. 92.
The court concludes based on the review of the memorandum of law and documents submitted as well as examination of the statutes, regulations and case law that there is no genuine issue of material fact that the Stamford Hospital is a general hospital and thus not subject to the patients' bill of rights under Gen. Stat. § 19a-550(a)(1)(B) chronic disease hospital. Campbell v. Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield at Litchfield, Docket Number CV 04-0092783 S (October 27, 2004, Bozzuto, J.); Hospital of St. Raphael v. Local 443, Superior Court, judicial district of New Haven at New Haven, Docket Number CV 04-4004477 S (May 24, 2005, Pittman, J.) [ 39 Conn. L. Rptr. 505] ("While there are indeed penal and health-related statutes and regulations that define a public policy of special attentiveness to the safety of vulnerable individuals, such as those who are elderly, disabled, or confined to health care institutions, see e.g. Conn. Gen. Stat. §§ 53a-59a and 19a-550(b)(8), there appears to be no such policy implicated in the instant case"). "The medicaid act also establishes a framework for the admission practices of nursing facilities. The act sets forth a long list of requirements for nursing facilities and rights that cannot be waived by residents. See 42 U.S.C. § 1396r. The Connecticut Patients' Bill of Rights mirrors this framework. See General Statutes § 19a-550." Sunrise Healthcare Corp. v. Azarigian 76 Conn.App. 800, 806 (2003)
The court has evidence as to the licensing classification of the Stamford Hospital on March 23, 2004 from Kathy Silard, Chief Operating Officer of the Stamford Hospital. "JDH also had the same classification in 1971, at the time when plaintiff's decedent was a patient at JDH, according to the affidavits filed by the defendants." Epstein, Administrator v. Jalbert, supra. Kathy Silard's April 29, 2010 affidavit states that she was the Chief Operating Officer in March 2004 through and including April 2010 and as of March 2004 the hospital was licensed as a "General Hospital and not a Chronic Disease Hospital." See also affidavit of John Rodis, M.D. dated August 16, 2010. No evidence has been offered to refute the March 2004 licensing facts.
The court grants the defendant's Motion for Summary judgment on Count Four, Violation of Connecticut's Patient's Bill of Rights, § 19a-550 by Santina Di Teresi against the hospital.
Count Five Violation of Patient's Bill of Rights, § 17a-540 et seq. by Santini Di Teresi against the hospital.
Defendant's Motion for Summary Judgment claims: "Plaintiffs cannot maintain such an action, as there is no genuine issue of material fact that the Hospital is not a `facility for the care and treatment of persons with psychiatric disabilities' within the scope of General Statutes §§ 17a-540, 17a-541, and 17a-542 and thus, defendants are entitled to judgment on this count as a matter of law."
The plaintiff formulates the same two objections to the defendants' Motion for Summary Judgment as it argued in Count Four. In denying the defendants' Motion to Strike, Judge Tobin held: "As it is directed to the fifth count the Hospital's motion to strike once again presents a classic `speaking motion' which must be denied. Liliedahl Bros., Inc. v. Grigsby, supra." Di Teresi et al. v. Stamford Health Systems, Inc., Superior Court, judicial district of Stamford/Norwalk of Stamford, Docket Number FST CV 06-5001340 S (March 6, 2007, Tobin, J.). These additional documents are now before this court for the consideration of a summary judgment. Therefore this court is not bound by Judge Tobin's decision. Secondly, the plaintiff argues that under the plain language of § 17a-540 et seq. the Hospital is a `facility' for purposes of that section. Therefore this court will conduct a statutory interpretation analysis of Gen. Stat. § 17a-540.
The plaintiff alleges that the hospital is "a facility as that term is defined in General Statutes § 17a-540(a)." "At all relevant times, Santina Di Teresi was `a person with psychiatric disabilities' as that phrase is defined by General Statutes § 17a-540(c)." The plaintiff has alleged that the hospital owed Santina Di Teresi a duty pursuant to Gen. Stat. §§ 17a-541, 17a-542 and 17a-550 and the hospital breached that duty pursuant to those three statutes. The factual allegations of the breach contained in the subsections a. through l. of paragraph 56 of Count Five, repeat the same allegations from subsection a. through l. of paragraph 54 in Count Four, Violation of Connecticut Patients' Bill of Rights, General Statutes § 17a-550 by Santina Di Teresi against the hospital.
Chapter 319i of the Connecticut General Statutes is entitled "Persons with Psychiatric Disabilities." Chapter 319i contains Gen. Stat. § 17a-540 through and including Gen. Stat. § 17a-618. Part III of Chapter 319i is entitled "Patients' Rights," which includes Gen. Stat. § 17a-540 through and including § 17a-550. Gen. Stat. § 17a-550 states: "Any person aggrieved by a violation of Sections 17a-540 to 17a-549, inclusive, may petition the superior court within whose jurisdiction the person is or resides for appropriate relief, including temporary and permanent injunction, or may bring a civil action for damages." The plaintiff's Claim for Relief for Count Five requests: Compensatory damages under General Statutes § 17a-550. The plaintiff is not claiming punitive damages in Count Five.
The definition sections of the Gen. Stat. § 17a-540 applies to each of the statutes under Part III "Patients' Rights." "Facility means any inpatient or outpatient hospital, clinic or other facility for the diagnosis, observation or treatment of persons with psychiatric disabilities." Gen. Stat. § 17a-540(1). "Patient means any person being treated in a facility." Gen. Stat. § 17a-540(2). "Persons with psychiatric disabilities means those children and adults who are suffering from one or more mental disorders, as defined in the most recent edition of the American Psychiatric Association's `Diagnostic and Statistical Manual of Mental Disorders.'" Gen. Stat. § 17a-540(3).
The defendants argue that the Stamford Hospital is a general hospital and is neither a nursing home, chronic care hospital nor mental health facility. The Department of Public Health has five separate licenses for facilities that treat mental disorders: Hospital for Mentally Ill Patients, Mental Health Community Residence, Mental Health Day Treatment Facility, Mental Health Residential Living Center and Psychiatric Outpatient Clinic for Adults.
This court has found that there is no genuine issue of material fact that the hospital is general hospital licensed under the Connecticut licensing system as a "General Hospital." The hospital is not licensed by the Department of Public Health in any of the above stated "mental health" categories. The hospital does have a psychiatric wing for the treatment of psychiatric patients called "Center for Psychiatric Care and Behavior Health Services of Stamford Hospital" www.stamfordhospital.org/all-services/medical/ psychiatric-and-behavioral.aspx. There is no question of fact that Santina Di Teresi was admitted on March 9, 2004 for pneumonia, new onset diabetes mellitus and a high blood glucose level, none are mental disorders, that she was placed on a medical surgical floor not in the psychiatric wing, that Main Three South is a medical surgical floor not part of the psychiatric wing, she was not treated by a psychiatrist and that her treating physician, Dr. Santi Neuberger, was not licensed as a psychiatrist.
The plaintiff claims that there is a material issue of fact as to whether or not the hospital is a "facility" since it has a psychiatric wing, and diagnoses and treats persons with psychiatric disabilities. The plaintiff argues that the statute that defines a "patient means any person as being treated in a facility," does not require that the person be treated for psychiatric disabilities. The plaintiff further argues that Santina Di Teresi meets the definition of Section § 17a-540(3) "Persons with psychiatric disabilities" since she was suffering from one or more mental disorders as defined in the most recent edition of the American Psychiatric Associations Diagnostics and Statistics Manual for Mental Disorders (DSM-IV). Mental disorder conditions were listed in Santina Di Teresi's medical records even though her admission diagnoses were not mental disorders. According to the hospital records she suffered from Alzheimer's and dementia. Both of these disorders are found in DSM-IV in a variety of forms: Dementia NOS 294.8, Dementia of the Alzheimer's type 290.10. The court finds that there is a genuine issue of material fact as to the nature and treatment of Santina Di Teresi's mental disorders and/or psychiatric disability.
The issue controlling Count Five is whether or not the psychiatric patient's bill of rights applies to a medical facility that contains a psychiatric program, but the primary function of the medical facility is not psychiatric treatment. This is a statutory interpretation issue. No statute provides a patients' bill of rights for every patient in a Connecticut hospital or health care facility. The Supreme Court held that the psychiatric patient's bill of rights does not apply to a correctional facility despite the fact that inmates including the plaintiff receive mental health care. The court acknowledged the correctional facility contained a mental health unit that operated an intensive mental health program but noted that these services were incidental to the purpose of the correctional institution. The court stated: "This court has recognized that the thrust of the task force findings behind the creation of the patients' bill of rights is that the primary function behind any psychiatric facility is to diagnose, treat and to restore mentally disturbed persons to an optimal level of functioning." Wisemen v. Armstrong, 269 Conn. 802, 812 (2004).
This court finds authoritative a trial court decision citing Wisemen v. Armstrong. Anghel v. St. Francis Hospital and Medical Center, U.S. District Court District of Connecticut, No. C.V. 303CV00864AWT (March 30, 2005, Thompson, J.). The plaintiff filed a five-count lawsuit against the defendant hospital as a result of treatment he received at the hospital on December 5, 2001. The staff of the defendant's emergency room reportedly locked the plaintiff in bed restraints for seven hours and failed to provide the plaintiff with the psychiatric treatment that he expected to receive. The plaintiff's five counts were as follows: Unlawful Restraint and Imprisonment; Assault and Battery; Defamation; Intentional Infliction of Emotional Distress; and Violation of Constitutional Rights. Supporting his claim in Count One of Unlawful Restraint/False Imprisonment, the plaintiff cited the psychiatric bill of rights Gen. Stat. § 17a-544. "No patient may be placed involuntary in seclusion or a mechanical restraint unless necessary because there is imminent physical danger to the patient or others and a physician so orders. A written memorandum of such order and the reasons therefor, shall be placed in the patient's clinical record within twenty-four hours." Gen. Stat. § 17a-544(a). The defendant, St. Francis Hospital and Medical Center, a general hospital licensed as a general hospital by the Department of Public Health, moved to dismiss Count One on the basis that Gen. Stat. § 17a-544 does not apply to the emergency room or the clinic of St. Francis Hospital where the plaintiff was treated. The trial court cited the definition of "facility" in Gen. Stat. § 17a-540(1) and Wisemen v. Armstrong, supra, 269 Conn. 810. Judge Thompson found: "Facility must mean one for which the main purpose is diagnosis, observation or treatment of persons with psychiatric disabilities. The Amended Complaint contains no factual allegations that would demonstrate that the E.R. is a `facility' as that term is defined in Section 17a-540(a)."
Gen. Stat. § 17a-540 contains a defining term for "facility" "for the diagnosis, observation or treatment of persons with psychiatric disabilities." Other sections of the statute in Part III Patient's Rights contain the same phrase limiting the definition of "facility." "No patient hospitalized or treated in any public or private facility for the treatment of persons with psychiatric disabilities . . ." Gen. Stat. 17a-541. "Every patient treated in any facility for treatment of persons with psychiatric disabilities . . ." Gen. Stat. § 17a-542.
The legislature did not establish a patient's bill of rights for all types of hospitals or health care facilities. There is no statute granting patient's bill of rights to general hospital patients. The focus of the legislation establishing patient's bill of rights is on the type of institution, not the care offered in that institution. Each "general hospital" is required to have an emergency room. Every day every emergency room treats patients for some type of psychiatric disability. The emergency rooms of Connecticut hospitals are full of patients with a variety of disorders labeled mental disability in DSM-IV. If the plaintiff is correct, virtually every hospital and walk-in clinic in Connecticut is a "facility" under Gen. Stat. § 17a-540 since they treat patients who have DSM-IV disorders. If that is the case, the legislature by its plain language should have so indicated that all general hospitals and clinics are "facilities," but they did not. The legislature focused on the type of the institution. The Supreme Court also focused on the type of institution and not the treatment in that institution. Wiseman v. Armstrong, supra, 269 Conn. 810.
There is no question of fact that the plaintiff was admitted on March 9, 2004 for non psychiatric disabilities; pneumonia and new onset of diabetes mellitus. She was not a patient in the psychiatric ward. The room that she was in was not in the psychiatric ward when the sexual assault occurred. The room she was in was in a post surgical ward. She was not treated by a psychiatrist. The physician in charge of her care was not a psychiatrist. She was being actively treated for her non-psychiatric medical conditions.
The court finds Gen. Stat. § 17a-540 plain and unambiguous. The court finds that Gen. Stat. § 17a-540 et. seq. is directed to the nature of the institution and not the treatment within the institution. The court finds that there is no genuine issue of material fact that the Stamford Hospital's primary medical treatment is not for psychiatric disabilities or mental health and this is not a chronic disease hospital. The court grants Summary Judgment as to Count Five: Violation of Patient's Bill of Rights Gen. Stat. § 17a-540 by Santina Di Teresi against the hospital.
Count Seven Intentional Infliction of Emotional Distress by Virginia Di Teresi against the hospital.
To prevail on a claim of intentional infliction of emotional distress a plaintiff must prove four elements; (1) That the actor intended to inflict emotional distress; or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's emotional distress; and (4) that the emotional distress sustained by the plaintiff was severe. DeLaurentis v. New Haven, 220 Conn. 225, 266-67 (1991). Liability for intentional infliction of emotional distress requires conduct that exceeds "all bounds usually tolerated by decent society . . ." Petyan v. Ellis, 200 Conn. 243, 254, fn.D5 (1986). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!" Carrol v. Allstate Insurance Company, 262 Conn. 433, 443 (2003).
Courts have placed a very high burden on those claiming extreme and outrageous conduct. In DeLeon v. Little, 981 F.Sup. 728, 738 (D.Conn. 1997), the court stated that [w]hile [d]efendant's alleged conduct may have been rude, inappropriate, or even criminal, it does not rise to the level of extreme and outrageous as required by the Connecticut common law.
Crane v. Northwestern Connecticut Young Men's Christian Ass'n., Superior Court, judicial district of Litchfield at Litchfield, Docket No. LLI CV 04-4001019 S (May 25, 2005, Bozzuto, J.).
It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as extreme and outrageous as to permit recovery, or whether it is necessarily so . . . Only if reasonable people could differ should the question be left for the jury.
Campbell v. Plymouth, 74 Conn.App. 67, 78 (2002).
In Count Seven the plaintiff, Virginia Di Teresi, alleges in paragraphs 52 through 56 intentional acts of the hospital that caused the alleged emotional distress. Those intentional acts all relate to the hospital's delays and cover up post-sexual assault as alleged in Count Four Violation of Connecticut's Patient's Bill of Rights General Statutes § 19a-550 by Santina Di Teresi against the hospital. In effect the same allegations have been placed in these five paragraphs 52 through 56 with slightly different wording each preceded by the allegations that the hospital acted intentionally.
There is no evidence whatsoever that Virginia Di Teresi was in her mother's hospital room immediately before, during or immediately after the sexual assault on Santina Di Teresi. There are issues regarding the exact time that various individuals were notified by the hospital. For example, the plaintiff claims a ten-hour delay in the hospital reporting the incident to the police. The defendants dispute the ten-hour delay and point to the Stamford Police Report that notes a six-hour delay. The difference between a six-hour delay and a ten-hour delay is an issue of fact but not a genuine issue of material fact. It is conceded by the hospital that they failed to report to Virginia Di Teresi the assault of Santina Di Teresi for at least six hours, to contact her mother's primary physician for least six hours, and failed to call the police for at least six hours. The hospital also admits that they conducted a rape exam on the evening of March 23, 2004.
Count Fifteen is a claim of "Bystander Emotional Distress" by Virginia Di Teresi against the hospital. It alleges that Virginia Di Teresi was present during the "rape exam" that occurred at 9:10 p.m. on March 23, 2004 and that "the `rape exam' was extremely upsetting to Santina Di Teresi and caused her significant pain, discomfort and emotional upset." The Court, Tobin, J., granted the hospital's motion to strike Count Fifteen thereby removing Virginia Di Teresi's only claim of bystander emotional distress. At no time has Virginia Di Teresi made a claim of bystander emotional distress by reason of the sexual assault on her mother, nor by reason of delay or cover up after the sexual assault. Santina Di Teresi has alleged medical malpractice against the hospital in Count Fourteen.
Bystander emotional distress claims by relatives of the injured victim of medical malpractice are prohibited. Maloney v. Conroy, 208 Conn. 392, 404 (1988). "Whatever may be the situation in other contexts where bystander emotional disturbance claims arise, we are convinced that, with respect with such claims arising from malpractice on another person, we should return to the position we articulated in Strazza that `there can be no recovery for nervous shock and mental anguish caused by the sight of injury or threatened harm to another.'" Id. 402. "The focus of the concern of medical care practitioners should be upon the patient and any diversion of attention or resources to accommodate the sensitivities of others is bound to detract from that devoted to patients . . . It is however, the consequences to the patient, and not to other persons, of deviations from the appropriate standard of medical care that should be the central concern of medical practitioners." Id. 403.
An action for bystander emotional distress requires proof of (1) the death of or serious physical injury to the injured victim; (2) the plaintiff must be a close relative of the injury victims; (3) the plaintiff witnesses either the event, or conduct that causes the victim's injury, or its immediate aftermath; and (4) the bystander plaintiff suffers serious emotional injury as a result. Clohessy v. Bachelor, 237 Conn. 31, 56 (1996). The third element requires that "the bystander's emotional injury must be caused by the contemporaneous sensory perception of the event or conduct that causes the injury . . . or by viewing the victim immediately after the injury causing event if no material change has occurred with respect to the victim's location and condition." Id. 52 The fourth element requires that "the plaintiff bystander must have sustained a serious emotional injury — that is, a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstance." Id. 54.
The hospital claims that the Count Seven sounding in intentional infliction of emotional distress by Virginia Di Teresi against the hospital is nothing more than a bystander emotional distress claim, a claim that is not permitted in a medical malpractice context. The defendants argue that Virginia Di Teresi's emotional distress claim is based on witnessing the consequences of the alleged negligent care on her mother and do not implicate any breach of duty of care that the hospital owed to her. According to the deposition of Virginia Di Teresi she arrived at her mother's room shortly after 2:00 p.m. on the afternoon of March 23, 2004 and remained there for the balance of the day. She was first informed at 5:30 p.m. that afternoon of the sexual assault allegations for the first time. She also claims emotional distress for the hospital's delay in informing the police and delay in informing Santina Di Teresi's physician. In addition, Virginia Di Teresi indicates that part of the distress was that the hospital staff permitted Robert E. Mayes to remain in the room after Nurse Futrell confronted him. Virginia Di Teresi admitted in the deposition that the nurse's intervention stopped Robert E. Mayes from continuing the assault. She claims that the hospital was at fault by allowing Mayes to stay in the room when the nurse went immediately to obtain help. That permitted Mr. Mayes to "clean her, get rid of her gown, get rid of the linens, get rid of all the forensic evidence. This shouldn't happen to anyone." Virginia Di Teresi therefore claims that the failure to remove him from the room is one of causes of her mental anguish, and is one of the driving factors leading Virginia Di Teresi to seek her own mental treatment.
Virginia Di Teresi is not claiming her emotional distress was solely caused by the fact that her mother was sexually assaulted. "Q: Isn't it fair to say that the incident that your mother endured is the primary reason why you suffered emotional distress. A: No." As a result in Count Nine paragraph 62 Virginia Di Teresi is not claiming distress damages for the sexual assault and battery. Her principal claim of emotional distress is alleged to be caused by the hospital's omissions or commissions that occurred after the sexual assault in the nature of the delays and cover up. That conduct must be extreme and outrageous towards Virginia Di Teresi. The conduct must be extreme and outrageous toward Virginia Di Teresi for allowing Nurse Futrell to stop the sexual assault and thus to momentary leave Mayes with Santina Di Teresi after discovering the alleged assault in order to inform the supervisor of the events and to obtain assistance in confronting Mayes. So too the delay in informing Virginia Di Teresi of the assault, the delay in informing the police of the assault and the delay in informing the physician of the alleged assault, while the hospital engaged in a investigation of the claim of one employee, Futrell, seeing a sexual assault against another employee, Mayes, who denied the sexual assault, was determined by the hospital; one or more of which conduct must be extreme and outrageous toward Virginia Di Teresi.
"A review of recent Connecticut decisions on the issue of extreme and outrageous conduct within the context of a claim for intentional infliction of emotional distress reveals that there is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain this action. The court looks to the specific facts and circumstances of each case in making its decisions." Craddock v. Church Community Supported Living Association, Superior Court, judicial district of Hartford at Hartford, Docket Number CV 99-0592711 S (November 13, 2000, Hennessey, J.). Above quote was cited by Brown v. Mulcahy, judicial district of Waterbury at Waterbury, Docket Number CV 06-5001276 S (July 24, 2007, Upson, J.). "The court does recognize that anxiety and distress are an unavoidable part of daily life, including the workplace." Lamothe v. Russell, Superior Court judicial district of Fairfield at Bridgeport, Docket Number CV 07-4022729 S (March 25, 2009, Bellis, J.).
This court has string cited Connecticut trial court cases on claims of intentional emotional distress occurring in a place of employment. Although this instant case is not an employment case, it deals with actions of employees in relation to their employees, the hospital, and its patients and family members. See the following case for over a dozen cases on the subject of what is sufficient to establish a claim of intentional infliction of emotional distress. Gillians v. Vivanco-Smalls, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number FST CV 05-50000253 S (March 2, 2010, Tierney, J.T.R.).
Doe, PPA v. A.B. Pet Realty, Superior Court, judicial district of Waterbury at Waterbury, Docket Number CV 08-5007017 S (September 19, 2008, Alvord, J.) was a negligent hiring and supervision claim seeking damages for the sexual assault of a minor employee on the employer's premises. The various allegations of omissions and commissions of the employer including the hiring of a registered sex offender who committed the sexual assault on the employment premises and the store's post-assault conduct allowing the registered sex offender to remain employed was held insufficient to rise to the level of extreme and outrageous conduct.
The claims of delays and cover up may be admissible to demonstrate consciousness of guilt by the hospital in the plaintiff's proof of Santina Di Teresi's claims at trial for Count Three Negligent Supervision against the hospital and Count Fourteen Medical Malpractice against the hospital. They are insufficient to support allegations of foreseeability against the hospital for claims of emotional distress by Virginia Di Teresi.
Upon this court's review of the documents submitted, the court finds that there is no genuine issue of material fact that the hospital's delays and cover up was not extreme and outrageous. The court further finds that the allegations in Count Seven are in effect a bystander emotional distress claim in a medical malpractice case by the injured victim, which bystander case is not permitted in Connecticut. Maloney v. Conroy, supra, 208 Conn. 402. The court grants the Motion for Summary Judgment Count Seven Intentional Infliction of Emotional Distress by Virginia Di Teresi against the hospital.
Count Eight Intentional Infliction of Emotional Distress by Santina Di Teresi against the hospital.
The plaintiff's allegations in paragraphs 52, 53, 54, 55 and 56 of the Count Eight Intentional Infliction of Emotional Distress by Santina Di Teresi against the hospital are the same intentional allegations in Count Seven Intentional Infliction of Emotional Distress by Virginia Di Teresi against the hospital. No other acts stated in Count Eight were alleged to be intentional. The question is whether that post-assault intentional conduct was extreme and outrageous as to Santina Di Teresi. There is no issue that a sexual assault is extreme and outrageous. Santina Di Teresi is bringing no action of intentional infliction of emotional distress as against the hospital for the outrageous conduct of the sexual assault by Robert E. Mayes. Her claim in this Count Eight is limited to emotional distress caused by the hospital's cover up and delays. See paragraph 59 that contains no reference for damages caused by "sexual assault and battery." Santina Di Teresi's Count Ten for Negligent Infliction of Emotional Distress against the hospital for post-assault delays and cover ups remains an active count at trial. This Count Ten is not subject to the hospital's Motion for Summary Judgment. Montinieri v. Southern New England Telephone, Co., 175 Conn. 337, 345 (1978). The court has analyzed these allegations from the point of view of Santina Di Teresi.
The court reaches the same conclusion as it did with the Count Seven intentional infliction of emotional distress by the plaintiff Virginia Di Teresi against the hospital, that the hospital's delays and cover up were not extreme and outrageous. There is no genuine issue of material fact in that regard. The court therefore grants the Motion for Summary Judgment on Count Eight Intentional Infliction of Emotional Distress by Santina Di Teresi against the hospital.
Count Nine Negligent Infliction of Emotional Distress by Virginia Di Teresi against the hospital.
The hospital argues for summary judgment on this Count Nine: (1) the allegations are essentially a bystander emotional distress claim by Virginia Di Teresi, which is not permitted in a medical malpractice context in Connecticut and (2) the hospital owed no duty to Virginia Di Teresi.
To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress . . . Thus, [t]he plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm. (Citation omitted; internal quotation marks omitted.) Davis v. Davis, 112 Conn.App. 56, 68, 962 A.2d 140 (2009).
The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm . . . In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm. (Citation omitted.) Olson v. Bristol-Burlington Health District, CT Page 394 87 Conn.App. 1, 5, 863 A.2d 748, cert. granted on other grounds, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005).
Stancuna v. Schaffer, 122 Conn.App. 484, 490 (2010).
The essential allegations of the hospital's failures alleged in Count Seven Intentional Infliction of Emotional Distress by Virginia Di Teresi against the hospital have been incorporated by reference in this Count Nine. The major difference is that the word "negligently" has been substituted for the word "intentionally." This Count relates to the delay in reporting, the delay in treatment and the alleged cover up.
Virginia Di Teresi was not a patient of the Stamford Hospital. She held a power of attorney for Santina Di Teresi, which power of attorney was on file with the Stamford Hospital. That fact does not make her a patient of the hospital. That fact does not create an agency relationship with the hospital. Kindred Nursing Centers East, LLC v. Morin, 125 Conn.App. 165, 170 (2010). The public policy expressed in Maloney v. Conroy, 208 Conn. 402, 403 is applicable to this Count Nine. "The focus of the concern of medical care practitioners should be upon the patient that any diversion of attention or resources to accommodate the sensitivity of others is bound to contract from that devoted to patients . . . It is . . . the consequences to the specific patient, and not to other persons, of deviation from the appropriate standard of care that should be the central concern of medical practitioners." Id. 403. This court finds that the hospital had no duty to Virginia Di Teresi concerning the issues of cover up and delays. It was not foreseeable to the hospital that any actions of cover up and/or delay by the hospital would cause Virginia Di Teresi emotional distress that was severe enough that might result in illness or bodily harm to the plaintiff Virginia Di Teresi. Lodge v. Arett Sales Co., supra, 246 Conn. 572.
The court notes that Count Ten Negligent Infliction of Emotional Distress by Santina Di Teresi against the hospital alleging the same elements of delays and cover up remain a cause of action at trial. The court also notes that Count Eleven Intentional Infliction of Emotional Distress claim by Santina Di Teresi against Robert E. Mayes remains a cause of action at trial.
The court finds for the reasons stated in Count Seven, that the allegations in this Count Nine are in effect a bystander emotional distress claim in a medical malpractice which bystander case is not permitted in Connecticut. Maloney v. Conroy, supra, 208 Conn. 402. The court further finds that there is no genuine issue of material fact as to negligent infliction of emotional distress by Virginia Di Teresi.
The court grants the Motion for Summary Judgment as to Count Nine Negligent Infliction of Emotional Distress by Virginia Di Teresi against the hospital.
Count Twelve Connecticut Unfair Trade Practices Act (CUTPA) by Santina Di Teresi against the hospital.
The CUTPA count against the hospital restates the delays and cover up allegations including that the hospital failed to provide immediate and adequate medical attention to Santina Di Teresi after it discovered that its employee had sexually assaulted her. Santina Di Teresi has not specifically pled the sexual assault and battery as damages and thus she is only claiming CUTPA damages by reason of the delays and cover up.
Despite the delays the hospital obtained a nursing staff examination, routine care, an ob/gyn consultation examination and a rape kit examination on March 23, 2004. Santina Di Teresi was examined by her own physician. Santina Di Teresi did not suffer any physical injuries and did not require any medical attention for the assault. Immediately after the assault Robert E. Mayes was removed the hospital facilities. Except for the late afternoon of March 23, 2004 interview with the Director of Safety and other hospital personnel, Mayes did not return to the hospital. His employment was terminated. There is no evidence to indicate that Mayes interacted with Santina Di Teresi after the sexual assault was stopped by Nurse Futrell at 10:30 a.m. March 23, 2004.
One of the essential allegations for a Connecticut Unfair Trade Practices (CUTPA) claim must be proof of "any ascertainable loss of money or property." Gen. Stat. § 42-110g(a). There may be per se CUTPA violations under certain circumstances but no CUTPA claim can be successful unless there is proof of an ascertainable loss of money or property. Reader v. Cassarino, 51 Conn.App. 292, 298-99 (1998). "The plaintiff had the burden to prove, by a preponderance of the evidence that they suffered an ascertainable loss of money or property as a result of the defendant's actions." Service Road Corporation v. Quinn, 241 Conn. 630, 639 (1997).
"The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief . . . Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation . . . An ascertainable loss is a loss that is capable of being discovered, observed or established . . . The term loss necessarily encompasses a broader meaning than the term damage, and "has been held synonymous with depravation, detriment and injury . . . To establish an ascertainable loss, a plaintiff is not required to prove actual damages of a specific dollar amount . . . A loss is ascertainable if it is measurable even though the precise amount of the loss is not known." Artie's Auto Body, Inc., v. Hartford Fire Insurance Co., 287 Conn. 208, 217-18 (2008).
The defendants claim that there is no genuine issue of material fact that Santina Di Teresi has not suffered an ascertainable loss of money or property as a result of the hospital's post-assault conduct. Santina Di Teresi alleges in Count Twelve paragraph 64: "The Hospital's conduct, actions and inactions caused Santina Di Teresi to suffer a substantial injury and an ascertainable loss of money and property, as well as emotional pain suffering and mental anguish."
There is no evidence presented to this Count that any hospital bills, medical bills or monetary costs were incurred by Santina Di Teresi as a result of the hospital's delays and cover up. There is no proof that she suffered any physical injury. The medical records, the Stamford Police report and the health care provider's affidavits and testimony submitted indicate that no physical injury was suffered by Santina Di Teresi as a result of the sexual assault and the delays and cover up. There is nothing in the record to indicate that the gown and bed linens destroyed were Santina Di Teresi's property. To the contrary the evidence discloses that the gown and bed linens at all times were the property of the hospital.
The only claim for an ascertainable loss by Santina Di Teresi is emotional distress. She was incapable of communicating effectively due to her dementia. It is possible though that in fact Santina Di Teresi did sustain some emotional distress by reason of the delay in treatment, other delays and cover up. No Appellate Court decision allows a finding of an ascertainable loss based solely on emotional distress without physical injury. Trial courts have uniformly dismissed or stricken CUTPA claim on the basis that emotional distress by itself is not an ascertainable loss to support a CUTPA claim. Ross v. Company Store, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number CV 91-0115710S, (October 1, 1991, Ryan, J.) [ 5 Conn. L. Rptr. 62]; Burney v. Downer Funeral Home, Inc., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket Number CV 99-0175648 S (August 13, 2001, Lewis, J.T.R.); Lane v. First Union National Bank, Superior Court, judicial district of New Haven at New Haven, Docket Number CV 01-0446552 S (April 19, 2002, Thompson, J.); Murphy v. McNamara, 36 Conn.Sup. 183, 195-96 (1979).
Doe v. Bradley Memorial Hospital, Superior Court, judicial district at New Britain at New Britain, Docket Number CV 01-0509999 S (July 24, 2003, Bryant, J.), discussed the issue of whether emotional distress by itself can be an ascertainable loss under CUTPA. The court held that the hospital's providing "false, inaccurate and misleading information to the police in the investigation of the matter "was part of the" entrepreneurial, commercial or business aspect of the hospital. The Doe v. Bradley trial judge denied summary judgment on that basis and did not reach the issue of whether "emotional distress is not an ascertainable loss for purposes of recovery under CUTPA." Doe v. Bradley Memorial Hospital does not defeat the hospital's claim that summary judgment should be granted in favor of the hospital on Count Twelve CUTPA by Santina Di Teresi against the hospital.
The court concludes that there is no genuine issue of material fact that any loss of money or property was suffered by nor was there any personal injury suffered by Santina Di Teresi. The court finds that her claim of emotional distress as an ascertainable loss does not meet CUTPA requirements. The facts of the alleged cover up or delays in reporting may be admissible to show consciousness guilt in the remaining counts. Pisel v. Stamford Hospital, 180 Conn. 314, 420 (1980). The defendants' Motion for Summary Judgment as to Count Twelve CUTPA by Santina Di Teresi against the hospital is hereby granted.
Count Thirteen CUTPA by Virginia Di Teresi against the hospital.
Stamford Hospital claims that there are two reasons why the CUTPA claims by Virginia Di Teresi against the hospital must be rejected of (1) she is not a consumer and has no business relationship with the hospital; (2) she has not sustained an ascertainable loss. A violation of CUTPA must be caused by a person in the conduct of any trade or commerce. Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 725-27 (1993). Virginia Di Teresi was not a patient of the Stamford Hospital on March 23, 2004 and thereafter. There is no genuine issue of material fact as to that matter. She held a power of attorney for Santina Di Teresi. That power of attorney created a principal-agency relationship between Santina Di Teresi and Virginia Di Teresi. Long v. Schull, 184 Conn. 252, 256 (1981). The hospital knew that Virginia Di Teresi possessed Santina Di Teresi's power of attorney and made note of that fact on her March 4, 2004 clinical records under "Code-Full." Such a principal-agency relationship is a fiduciary relationship. Id. 256 That power of attorney did not create an principal-agency relationship between the hospital and Virginia Di Teresi Gen. Stat. § 1-42 et seq. Virginia Di Teresi's responsibility as Santina Di Teresi as attorney-in-fact would not support a third-party beneficiary claim by the hospital. Krawczyk v. Stingle, CT Page 398 208 Conn. 239, 244 (1988). The fact that Virginia Di Teresi admitted Santina Di Teresi as a patient of the hospital by using her power of attorney does not make Virginia Di Teresi a patient of the hospital. Kindred Nursing Centers East, LLC v. Morin, supra, 125 Conn.App. 170. The court finds that Virginia Di Teresi has no consumer, business or competitor relationship with the hospital.
Virginia Di Teresi alleges that the hospital violated her CUTPA rights by the delays and cover up previously stated. There is no genuine issue of material fact that Virginia Di Teresi did not suffer any monetary loss by reason of the delays and cover up. There is no genuine issue of material fact that Virginia Di Teresi did not sustain any personal injuries as a result of the delays or cover up nor was any of her property lost. The hospital owned the destroyed gown and bed linens, not Virignia Di Teresi. Virginia Di Teresi's only possible claim would be for her emotional distress. There is no Appellate Court or trial court decision that allows for the ascertainable loss requirement of CUTPA to be satisfied by an allegation of emotional distress. The court has already granted the Motion for Summary Judgment on that basis in Count Twelve CUTPA by Santina Di Teresi against the hospital.
The court grants summary judgment on Count Thirteen CUTPA by Virginia Di Teresi against the hospital.
Count Sixteen Breach of Fiduciary Duty by Santina Di Teresi against the hospital.
The hospital claims that there is no Connecticut authority permitting a finding of fiduciary duty by a hospital to a patient. Connecticut law has found a fiduciary relationship of trust and confidence between a patient and a physician. Rosenfield v. Rogin, Nassau, Caplan, Lassman and Hirtle, LLC, 69 Conn.App. 151, 163 (2002); Konover Development Corp. v. Zeller, 228 Conn. 206, 222, fn. 11 (1994). A determination of fiduciary duty must be made on a case by case basis. There is no bright line rule as to what relationship is a fiduciary relationship. "A fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interest of others." Jarvis v. Lieder, 117 Conn.App. 129, 144 (2009). "Rather than attempt to define `a fiduciary relationship in precise detail and in such a manner to exclude new situations,' we have instead chosen to leave `the bars down for situations in which there is a justifiable trust confided on one side and a resulting superiority and influence on the other.'" Dunham v. Dunham, 204 Conn. 303, 320 (1987).
The plaintiff Santina Di Teresi is alleging that the hospital as a institution breached its fiduciary duty to Santina Di Teresi with regard with how it handled a sexual assault once that sexual assault was discovered. Therefore the delays and cover up form the basis of the claimed breach of fiduciary duty not the sexual assault itself.
The Supreme Court did have the opportunity to discuss the subject in Sherwood v. Danbury Hospital, 278 Conn. 163 (2006). It found that: "The plaintiff has proven scant reason to conclude that a hospital owes a patient the duty of a fiduciary." Id. 196. "We conclude, therefore, that the plaintiff's claim of a breach of fiduciary duty must fail." Id. 197. Any comments to the contrary in Sherwood are dicta and do not establish a fiduciary duty between a hospital and its patient. Id. 196.
The court knows of no trial or appellate court in Connecticut that has found a fiduciary relationship between a hospital and patient. The plaintiffs cite out of state cases to persuade this court that such a fiduciary duty exists. All the Connecticut trial courts that have decided this issue have concluded that there is no fiduciary relationship between a hospital and its patient. Sherwood-Armour v. Danbury Hospital, Superior Court judicial district of Waterbury Complex Litigation Docket Number X02-CV96-0163786 S (October 30, 2003, Schuman, J.) [ 35 Conn. L. Rptr. 659]; Neuhaus v. DeCholnoky, et al., Superior Court judicial district of Stamford-Norwalk at Stamford, Docket Number CV 96-0153565 S (June 5, 2002, Adams, J.); Cornelio v. Stamford Hospital, Superior Court, judicial district of Stamford-Norwalk at Stamford, Complex Litigation Docket Number X05-CV97-0160804 S (February 1, 2000, Tierney, J.) (finding that the Second Count sounding in informed consent may actually allege a breach of fiduciary relationship and no such case supporting a fiduciary relationship between a hospital and its patients was found). This next cited case may have some relationship to the issue at hand. Golek v. St. Mary's Hospital, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket Number X02-UWY CV 08-5008961 S (March 12, 2010, Eveleigh, J.). (No fiduciary relationship between the plaintiff who entered the hospital's residency program and thus it was akin to a student-teacher relationship, not a fiduciary relationship.
"Although we have not expressly limited the application of these traditional principles of fiduciary duty to cases involving only fraud, self-dealing or conflict of interest, the cases in which we have invoked them have invoked such deviations." "Finally, professional negligence alone . . . does not give rise automatically to a claim for breach of fiduciary duty . . . Thus not every instance of professional negligence results in a breach of a fiduciary duty . . . Sherwood v. Danbury Hospital, supra, 278 Conn. 196.
The court finds that there is no fiduciary duty between the hospital and Santina Di Teresi. Even if the plaintiff is able to prove a breach of fiduciary duty, Santina Di Teresi's claims do not meet the foreseeability under Lodge v. Arett Sales, supra, 246 Conn. 512. The court therefore finds that there is no genuine issue of material fact as to Count Sixteen.
The court grants Summary Judgment on Count Sixteen Breach of Fiduciary by Santina Di Teresi against the hospital.
Count Seventeen Breach of Fiduciary Duty by Virginia Di Teresi against the hospital.
The only issue in this matter is the status of the power of attorney that Virginia DiTeresi held executed by Santina Di Teresi. Virginia Di Teresi is claiming that the power of attorney creates a fiduciary duty between her individually and the hospital. This is not the law of Connecticut. Kindred Nursing Centers East, LLC, v. Morin, supra, 125 Conn.App. 173. Santina Di Teresi has no fiduciary relationship with the hospital. The power of attorney put Virginia Di Teresi in the place of Santina Di Teresi. The power of attorney cannot create a fiduciary relationship with the agent which there was no fiduciary relationship with the principal.
The court has already found that no fiduciary duty exists between a hospital and its patient. The court finds that there is no fiduciary duty between a hospital and a close family member of a patient who possessed the patient's executed power of attorney. The court therefore finds that there is no genuine issue of material fact as to Count Seventeen.
The court grants the hospital's Motion for Summary Judgment Count Seventeen Breach of Fiduciary Duty by Virginia Di Teresi against the hospital.
Count Eighteen Recklessness by Santina Di Teresi against the hospital.
Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be 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 . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . Wilful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse . . . Its characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. Not only the action producing the injury but the resulting injury also must be intentional . . .
Dubay v. Irish, 207 Conn. 518, 532-33 (1988).
"There is a wide difference between negligence and reckless disregard of the rights or safety of others and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on . . . Merely using the term `recklessness' to describe conduct previously alleged as negligence is insufficient as a matter of law." Angiolillo v. Buckmiller, 102 Conn.App. 697, 705 (2007).
Count Eighteen Recklessness by Santina Di Teresi incorporates by reference the sixty-two paragraphs Count Sixteen the breach of fiduciary count by Santina Di Teresi against the hospital. Two additional paragraphs are alleged: "63. The Hospital's conduct as alleged herein was deliberate and/or reckless and demonstrated a reckless disregard for the rights of Santina Di Teresi." "64. The Hospital's recklessness and complete disregard of the rights and safety of Santina Di Teresi caused her to suffer severe, painful and permanent injuries, including great mental anxiety, discomfort, loss of life's enjoyment, distress and disability." Although there are cases that permit a count of negligence to be incorporated by reference into a reckless count with sufficient specificity to withstand a challenge as to the allegations of recklessness by adding the word deliberate and/or reckless as a conclusionary, this lawsuit is not one of those cases. "Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted. See Brock v. Waldron, 127 Conn. 79, 81, 14 A.2d 713 (1940)." Craig v. Driscoll, 262 Conn. 312, 343 (2003).
Count Eighteen fails to delineate exactly what conduct was reckless as opposed to the counts of intentional infliction or negligent infliction. "In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consciousness of one's act . . . Such conduct is more than negligence, more than gross negligence . . . In order to infer it, there must be 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 . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . In sum, such conduct tends to take on the aspect of highly unreasonable conduct, involving extreme departure from ordinary care, in a situation where a high degree of danger is apparent." Elliott v. Waterbury, 245 Conn. 385, 415 (1998); Dubay v. Irish, supra, 207 Conn. 532-33.
There is no evidence to indicate that the hospital was aware of any predilection of Robert E. Mayes to engage in sexual or assaultive behavior prior to the morning of March 23, 2004. That Robert E. Mayes had access to the patient by reason of his being a hospital employee and bathing and changing a patient as a certified nursing assistant cannot be an act of recklessness by the hospital. Nurse Futrell immediately stopped the sexual assault by Mayes by saying "Hey, what are you doing," and then she immediately went to get help to confront Mayes. The court finds that the allegations of delays and cover up do not support a conscious disregard for Santina Di Teresi's safety. There is no genuine issue of material fact that the hospital's conduct was not reckless.
The Motion for Summary Judgment as to Count Eighteen Recklessness by Santina Di Teresi against the hospital is granted.
Count Nineteen Recklessness by Virginia Di Teresi against the hospital.
The hospital makes the same argument in its Motion for Summary Judgment as to Count Nineteen as it did in Count Eighteen but it adds one further argument. This is the allegation that the hospital failed to inform Virginia Di Teresi immediately of the sexual assault. The question is whether the delay of more than six hours in informing Virginia Di Teresi of the alleged sexual assault when Virginia Di Teresi was in the hospital room of her mother from approximately 2:00 p.m. on March 23 and thereafter is an "extreme departure from ordinary care in a situation where a high degree of danger is apparent?" There is no evidence that Santina Di Teresi was in danger after Robert E. Mayes left her hospital room shortly after 10:30 a.m. on March 23, 2004. The medical examination that occurred in the late afternoon or early evening of March 23 indicated that Santina Di Teresi did not suffer any medical injury, therefore, she was not in any medical danger after 10:30 in the morning on March 23, 2004. Virginia Di Teresi was not in danger at any time during that day and there is no evidence to indicate any danger to Virginia Di Teresi. The failure to inform Virginia Di Teresi of the sexual assault from 10:30 in morning until 2:00 in the afternoon when she was not in the hospital and from 2:00 in the afternoon until 5:30 in the afternoon on March 23 when she was in the hospital sitting next to her mother is not "an extreme departure from ordinary care." Angiolillo v. Buckmiller, supra, 102 Conn.App. 705. The court finds that there is no genuine issue of material fact as to the recklessness count brought by Virginia Di Teresi against the hospital.
The court grants the hospital's Motion for Summary Judgment on Count Nineteen Recklessness by Virginia Di Teresi against the hospital.
ORDER
The court hereby grants Summary Judgment in favor of the hospital as to Count One, Count Four, Count Five, Count Seven, Count Eight, Count Nine, Count Twelve, Count Thirteen, Count Sixteen, Count Seventeen, Count Eighteen, and Count Nineteen of the Plaintiffs' Second Amended Complaint dated February 12, 2010 (#212.00).