Opinion
No. CV 01 0509999
July 24, 2003
MEMORANDUM OF DECISION
The matter before the court is the defendant's motion for summary judgment as to counts one, four, eight, ten and fourteen of the plaintiff's complaint. Count one alleges medical malpractice, count four alleges negligent hiring, count eight alleges negligent infliction of emotional distress, count ten alleges violation of the Connecticut Unfair Trade Practices Act (CUTPA) and count fourteen alleges loss of consortium.
The plaintiffs, Jane and John Doe, commenced an action against three defendants, Bradley Memorial Hospital (Hospital), Healthcare Professional Placement, Inc. (HPP) and Vincent Palmisano, a nurse's aide, alleging that Palmisano sexually assaulted Jane Doe while she was a patient at the hospital. Palmisano was employed by HPP, a provider of temporary healthcare workers, and worked at the Hospital under a contract between the Hospital and HPP. On December 17, 1999, the hospital filed a motion to strike counts one, six, seven and ten of the plaintiff's revised complaint dated November 18, 1999. The court, Hennessey, J., denied the motion to strike as to count one (medical negligence) without prejudice and count ten (CUTPA), and granted the motion as to count six (respondeat superior) and count seven (breach of contract).
On March 24, 2000, the plaintiff filed a revised complaint dated March 24, 2000, which is identical to November 18, 1999 complaint except that the plaintiffs attached a good faith certificate. The only remaining counts against the hospital are count one (medical negligence), count four (negligent hiring), count eight, (negligent infliction of emotional distress), count ten (CUTPA), and count fourteen (loss of consortium). On January 28, 2003, the hospital filed a motion for summary judgment on these counts. On March 31, 2003, the plaintiffs filed an objection to the motion. CT Page 8188-b
DISCUSSION
"The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . ." (Citations omitted; internal quotation marks omitted.) Gaynor v. Payne, 261 Conn. 585, 590-91, 804 A.2d 170 (2002).
"[A]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with evidence disclosing the existence of such an 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 [in support of a motion for summary judgment]." Buell Industries Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002).
"[S]ummary judgment is not well suited to the disposal of complex cases." (Citation omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 752, 660 A.2d 810 (1995). It is "apt to be ill adapted to cases of a complex nature or those involving important public issues, which often need the full exploration of trial." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 375, 260 A.2d 596 (1969). In particular, "[i]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984); Stokes v. Lyddy, 75 Conn. App. 252, 258, 815 A.2d 263 (2003).
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rater to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995). CT Page 8188-c
I. Medical Negligence
The hospital moves for summary judgment as to count one claiming that it sounds in medical negligence and that the plaintiff has failed to produce expert testimony regarding the standard of care and causation as is required in medical malpractice claims. The hospital further claims that the plaintiffs' experts were not disclosed by December 30, 2002 pursuant to a scheduling order entered on March 31, 2002. The defendant, in opposition, claims that the time to disclose experts had been extended to March 31, 2003, and that not all of the claims in count one sound in medical malpractice. Some of the claims in count one constitute ordinary negligence. Therefore, the defendant further argues, not all the claims require expert testimony. Each cause of action must be set forth in a separate count. Practice Book § 10-26; therefore, the court must determine whether the claims in count one are properly characterized as sounding in medical malpractice or ordinary negligence.
"The classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged negligence occurred. [P]rofessional negligence or malpractice . . . [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] . . . the failure to exercise requisite medical skill . . . From those definitions, we conclude that the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." (Citation omitted; emphasis in original; internal quotation marks omitted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254, 811 A.2d 1266 (2002). "When determining whether the defendant breached a duty owed to the plaintiff in cases sounding in professional negligence, the plaintiff is required to present evidence from an expert where knowledge of the duty is beyond the experience of an ordinary fact finder." Golden v. Johnson Memorial Hospital, Inc., 66 Conn. App. 518, 530, 785 A.2d 234, cert. denied, 259 Conn. 902, 789 A.2d 990 (2001).
"[T]o prevail in a medical malpractice action, the plaintiff must prove CT Page 8188-d (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury . . . Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard . . . Except in the unusual case where the want of care or skill is so gross that it presents an almost conclusive inference of want of care . . . the testimony of an expert witness is necessary to establish both the standard of proper professional skill or care on the part of a physician . . . and that the defendant failed to conform to that standard of care." (Citations omitted; internal quotation marks omitted.) Harlan v. Norwalk Anesthesiology, P.C., 75 Conn. App. 600, 613-14, 816 A.2d 719, cert. denied, 261 Conn. 911 (2003); see also Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn. App. 353, 357-58, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001).
"General Statutes § 52-184c (a) . . . establishes the standard of care to be applied in a medical malpractice case. Section 52-184c (a) provides in relevant part: 'The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.' A 'health care provider' is a statutorily defined term, meaning 'any person, corporation, facility or institution licensed by the state to provide health care or professional services, or an officer employee or agent thereof acting in the course and scope of his employment.'" (Emphasis in original.) Ali v. Community Health Care Plan, Inc., 261 Conn. 143, 152, 801 A.2d 775 (2002).
In the present case, some of the claims in count one are properly characterized as medical malpractice claims. The hospital was sued in its capacity as a healthcare provider, a medical professional. The defendant hospital's alleged negligence is of a medical nature arising out of their treatment of the plaintiff, Jane Doe. The alleged negligence involved the exercise of medical judgment. The plaintiff's claim, in essence, implicates the defendant hospital's medical judgment in discharging Jane Doe without determining whether she needed psychological treatment following her alleged assault. The plaintiffs' allegations arise out of a hospital-patient relationship in that they allege a failure to provide the plaintiff with adequate counseling and treatment immediately after the alleged sexual assault by Palmisano.
"Medical malpractice claims do not necessarily require expert testimony. Although a court requires expert testimony to establish the relevant standard of care in most cases; see Barrett v. Danbury CT Page 8188-e Hospital, 232 Conn. 242, 252, 654 A.2d 748 (1995); [s]ome aspects of a medical malpractice action are considered to be within the realm of a jury's knowledge; Caron v. Adams, supra, 33 Conn. App. [673, 690, 638 A.2d 1073 (1994)]; and, thus, do not require expert testimony. The characterization of a claim as ordinary negligence or medical malpractice, therefore, does not turn on whether expert testimony is required." (Internal quotation marks omitted.) Trimel v. Lawrence Memorial Hospital Rehabilitation Center, supra, 61 Conn. App. 360. "The rule of law that distinguishes between medical malpractice and ordinary negligence requires a determination of whether the injury alleged occurred during treatment because of a negligent act or omission that was substantially related to treatment." Id.
While plaintiffs were required in this case to produce expert testimony as to causation and standard of care to support their negligence claim, the period of time for disclosing such experts had not lapsed, as the Hospital alleges. Pursuant to the extension entered by the court, the plaintiffs had until March 31, 2003 to name their expert witnesses.
Furthermore, although the rules of practice require each cause of action to be set forth in a separate count, count one contains more than one cause of action, count one contains causes of action sounding in both negligence and medical negligence. The negligence claims alleged in count one, such as failure to supervise and monitor the co-defendant Palmisano, do not require expert medical testimony regarding the standard of care. The plaintiffs allege that the failure to supervise and monitor Palmisano caused them injury. However, the failure to supervise Palmisano did not constitute some improper conduct in treatment or operative skill or amount to the failure to exercise requisite medical skill ordinarily used by physicians or hospitals for a specified procedure at the time of Jane Doe's injuries. Thus expert medical testimony will not be required regarding standard of care as to these claims in count one.
II. Negligent Hiring
The hospital moves for summary judgment as to count four claiming that there is no genuine issue of fact that it did not hire or employ Palmisano at the time of the incident alleged in the complaint. The plaintiffs argue in opposition that Palmisano was an agent of the hospital at the times relevant to the allegations.
"Recently courts have recognized expanded types of employment related torts such as . . . negligent hiring, which holds an employer liable for the criminal, violent, or wrongful acts of his employees, including those that occur after working hours and away from the employer's place of CT Page 8188-f business." (Citations omitted.) Coste v. Riverside Motors, Inc., 24 Conn. App. 109, 112, n. 3, 585 A.2d 1263 (1991). "A claim of negligent hiring 'extends to any situation where a third party is injured by an employer's own negligence in failing to select an employee fit or competent to perform the services of employment.'" Demaria v. Country Club, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02392621 (January 17, 2003, Thim, J.); see also Shore v. Stonington, 187 Conn. 147, 155, 444 A.2d 1379 (1982). To survive the motion for summary judgment, the plaintiffs must allege that the hospital knew or should have known that Palmisano would have engaged in these alleged activities before he was hired such that the hospital should have been aware that he was reasonably likely to engage in the conduct about which the plaintiffs now complain. Demaria v. Country Club, supra, Superior Court, Docket No. CV 02 392621.
"Negligence is often defined as 'a breach of duty.' (Internal quotation marks omitted.) Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982). 'The existence of a duty is a question of law.' Id. Existing Connecticut precedents impose only a limited duty to take action to prevent injury to a third person. Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996). In order for such a duty to arise, there must be a special relationship of custody and control . . ." Beach v. Jean, 46 Conn. Sup. 252, 261, 746 A.2d 228 (1999).
"In any determination of whether a special relationship should give rise to a duty to exercise care to avoid harm to a third person, the key element is foreseeability . . . The threshold inquiry is whether the specific harm alleged by the plaintiff was foreseeable to the defendant . . . The specific test 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." (Citations omitted; internal quotation marks omitted.) Id., 261-62; see also Lodge v. Arett Sales Corp., 246 Conn. 563, 572, 717 A.2d 215 (1998). The plaintiffs' complaint is devoid of any allegation that it was or should have been foreseeable to the Hospital that Palmisano posed a danger to the plaintiffs in the manner complained of by the plaintiffs or in any other manner.
The fact that Palmisano was a temporary worker employed and supplied to the Hospital by HHP, raises a question as to whether the Hospital is liable for the acts of Palmisano. "[T]he borrowed servant rule . . . provides that the person to whom the services of another's employee are CT Page 8188-g loaned is responsible for the employee's negligence so long as the temporary master actually exercises supervision and control over the servant." Mather v. Griffin Hospital, 207 Conn. 125, 136, 540 A.2d 666 (1988). "The rule finds its roots in the common law and was recognized by the United States Supreme Court as early as 1909. Standard Oil Co. v. Anderson, 212 U.S. 215, 221-22, 29 S.Ct. 252, 53 L.Ed. 480 (1909). The master's responsibility cannot be extended beyond the limits of the master's work. If the servant is doing his own work or that of some other, the master is not answerable for his negligence in the performance of it." (Internal quotation marks omitted.) Linstead v. Chesapeake Ohio R., 276 U.S. 28, 33, 48 S.Ct. 241, 72 L.Ed. 453 (1928); see also Rice v. Fotovat, Superior Court, judicial district of Docket No. CV 97 0345122 (January 16, 2003) ( 34 Conn.L.Rptr. 8).
"In determining whether a servant is 'borrowed' for purposes of the borrowed servant doctrine, '[t]he general test is whether the act is done in business of which the [master] is in control as a proprietor, so that he can at any time stop it or continue it, and determine the way in which it shall be done, not merely in reference to the result to be reached, but in reference to the method of reaching the result . . . The test is whether, in the particular service which he is engaged to perform, [the servant] continues liable to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired . . .'" (Citation omitted; emphasis in original.) Rice v. Fotovat, supra, 34 Conn.L.Rptr. 8.
In the present case, there is a genuine issue of material fact as to whether Palmisano "continued to be liable to the direction and control" of the hospital or HPP or both. Id.
The court further finds that a question of fact exists as to whether, during Jane Doe's alleged incident, Palmisano was engaged in the business of HPP or the hospital. Id.; see also Tierney v. Correia, 120 Conn. 140, 144-46, 180 A. 282 (1935) (court may consider the "payment of wages; the right to hire or discharge; the right to direct the servant where to go, what to do; the custody or ownership of the tools and appliances he may use in his work" in determining "[i]n whose business was the servant engaged at the time"). There are genuine issues of material fact as to whose business Palmisano was engaged, viewing the evidence in the light most favorable to the plaintiffs, the nonmoving party.
As previously noted, "summary judgment is not well suited to the disposal of complex cases"; Miller v. United Technologies Corp., supra, 233 Conn. 752; and is "apt to be ill adapted to cases . . . involving important public issues, which often need the full exploration of trial." CT Page 8188-h United Oil Co. v. Urban Redevelopment Commission, supra, 158 Conn. 375. The question of whether Palmisano was the borrowed servant of the hospital presents complex factual inquiries that are ill-suited to summary judgment, and the important public issue of who bears liability for an agent's negligence should be determined only after "the full exploration of trial." Therefore, the motion for summary judgment is denied as to the plaintiffs' negligent hiring claim in count four because the hospital has failed to meet its burden of showing the absence of genuine issues of material facts. Id.
III. Negligent Infliction of Emotional Distress
The hospital moves for summary judgment as to count eight alleging negligent infliction of emotional distress claiming that the plaintiffs have failed to establish the necessary elements for such a claim. Specifically, the hospital alleges that the plaintiffs have not established the causal element for negligent infliction of emotional distress because a non-hospital employee committed the alleged assault and because the representations to the police were not alleged as a cause of distress. The plaintiffs argue in opposition that they have alleged that the hospital provided inaccurate and misleading information to the police, resulting in the plaintiffs' distress. In addition, the plaintiffs allege that Jane Doe's treating psychiatrist testified at her deposition on March 27, 2003, that Jane Doe's condition and treatment are related to the assault and the hospital's actions and inactions.
The Supreme Court for the first time recognized a cause of action for negligent infliction of emotional distress in the case of Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978). "[I]n order to prevail on a claim of negligent infliction of emotional distress, the 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 . . . This part of the Montinieri test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Citation omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 446-47, 815 A.2d 119 (2003). CT Page 8188-i
In the present case, the plaintiffs have alleged that agents, servants and/or employees of the Hospital provided false, inaccurate and misleading information to the police, thus interfering with the criminal investigation to the matter. The plaintiff alleges that the hospital's indifference to the incident and intervention with the investigation and allowing Palmisano access to Jane Doe was extreme and outrageous. Jane Doe also alleges the emotional distress she suffered as a result of the assault is severe. In that she suffered bodily injury, resulting in pain and suffering, mental anguish, emotional and physical trauma and damage, loss of capacity to enjoy life, medical expenses and a gross violation of her individual dignity. It is true, as the hospital asserts, that the plaintiff only alleges that the plaintiff allegedly sustained emotional distress as a result of the assault. No where does the plaintiff state that the allegations surrounding representations made to the police and allowing Palmisano access to the plaintiff were the cause of her emotional distress. The plaintiff only alleges in opposition to the hospital's motion for summary judgment that the "plaintiff's treating psychiatrist testified at her deposition that plaintiff's condition and treatment are related to the assault and to the hospital's actions and inactions." But, the deposition is not attached to the memorandum in opposition.
The court's determination, however, that a genuine issue of material fact exists as to whether Palmisano was under the direction and control of the Hospital or HPP is fatal to the defendant's motion for summary judgment as to this count. A question of fact exists as to whether the plaintiffs have established the causal element for a claim of negligent infliction of emotional distress. The causal element hinges on whether Palmisano was an agent of the hospital or HPP or both. Accordingly, because the hospital has failed to prove that no genuine issue of fact exists, summary judgment is denied as to count eight, alleging negligent infliction of emotional distress.
IV. Connecticut Unfair Trade Practices Act
The hospital moves for summary judgment as to count ten alleging a violation of the Connecticut Unfair Trade Practices Act (CUTPA). It claims that an act of providing information to the police to assist in the investigation of a criminal matter is incidental to the business of the hospital, and thus not a violation of CUTPA. The hospital further claims that emotional distress is not an ascertainable loss for purposes of recovery under CUTPA. The plaintiffs argue in opposition that the CUTPA count relates to commercial aspects of the hospital, and therefore, summary judgment should be denied. Specifically, the plaintiffs allege that the hospital's Chief Operating Officer's duties are CT Page 8188-j geared toward the business aspects and is the person who provided information to the police. In addition, the plaintiffs allege that the hospital's failure to conduct an investigation into the background and references of individuals working there through a placement agency is grounds for a CUTPA violation.
"Section 42-110b (a) [of the Connecticut Unfair Trade Practices Act] provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. Moreover, this court has set forth a three-part test for satisfying the substantial injury criterion: [1] [the injury] must be substantial; [2] it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and [3] it must be an injury that consumers themselves could not reasonably have avoided." (Citation omitted; internal quotation marks omitted.) Murray v. Taylor, 65 Conn. App. 300, 337, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001); see also Larobina v. Home Depot USA, Inc., 76 Conn. App. 586, 588, 821 A.2d 283 (2003).
"CUTPA provides a private cause of action to '[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice . . .'" Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 306, 692 A.2d 709 (1997). "Thus, in order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, 'as a result of' this act, the plaintiff suffered an injury. The language 'as a result of requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff . . . With regard to the requisite causal element, it is axiomatic that proximate cause is '[a]n actual cause that is a substantial factor in the resulting harm . . .' The question to be asked in ascertaining 'whether proximate cause exists is whether the harm which occurred was of the same CT Page 8188-k general nature as the foreseeable risk' created by the defendant's act." (Citations omitted; emphasis in original.) Id.
"[T]he touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services is implicated, aside from medical competence or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel. Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation." (Internal quotations marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 213, 746 A.2d 730 (2000); Janusauskas v. Fichman, 68 Conn. App. 672, 680, 793 A.2d 1109, cert. granted on other grounds, 261 Conn. 913, 806 A.2d 1054 (2002). "[V]iolations predicated on negligence or malpractice, whether legal or medical, are not covered because those claims address only competence." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, supra, 252 Conn. 213.
"[O]nly allegations of unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of the entrepreneurial, commercial, or business aspect of a physician's practice may be brought under the [consumer protection act]. Allegations that concern misconduct in the actual performance of medical services or the actual practice of medicine would be improper." (Internal quotation marks omitted.) Janusauskas v. Fichman, supra, 68 Conn. App. 679.
"Whether a practice is unfair and thus violates CUTPA is an issue of fact . . . The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court." (Internal quotation marks omitted.) Ancona v. Manafort Bros., Inc., 56 Conn. App. 701, 715, 746 A.2d 184, cert. denied, 252 Conn. 954, 749 A.2d 1202 (2000); see also Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 505, 746 A.2d 1277 (2000).
As noted above, a legally sufficient CUTPA claim against a health care provider of services is implicated, and does not include "medical competence" or "medical malpractice based on the adequacy of staffing, training, equipment or support personnel." Therefore, the plaintiffs' allegation that the hospital's failure to investigate into the background and references of Palmisano are grounds for a CUTPA violation is incorrect.
However, in this case, the plaintiffs have alleged that the hospital provided false, inaccurate, and misleading information to the police in the investigation of the matter. The plaintiff Jane Doe has further alleged that the hospital's act of providing information to the police CT Page 8188-l did harm the plaintiff in that the hospital's actions caused substantial injury to the plaintiff and were immoral, oppressive and unscrupulous. It is up to the trier of fact to weigh all the facts within the totality of the circumstances of the case and determine whether the hospital's acts violate CUTPA. Accordingly, summary judgment is denied as to count ten of the complaint alleging a claim under CUTPA.
V. Loss of Consortium
The hospital moves for summary judgment as to count fourteen claiming loss of consortium. "Loss of consortium is defined as the loss of services, financial support, and the variety of intangible relations that exist between spouses living together in marriage . . . The intangible components of consortium are the constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage . . . By such services is meant not so much earned wages as assistance and helpfulness in the relations of conjugal life according to the station of the parties. In addition, there is the exclusive right in each to the society, companionship and conjugal affection of the other." (Citation omitted; internal quotation marks omitted.) Musorofiti v. Vlcek, 65 Conn. App. 365, 372, 783 A.2d 36, cert. denied, 258 Conn. 938, 876 A.2d 426 (2001). The plaintiff John Doe, alleges that he lost the services and consort of his wife as a result of the conduct of the defendants.
"Loss of consortium is a derivative cause of action, meaning that it is dependent on the legal existence of the predicate action . . . Loss of consortium, although a separate cause of action, is not truly independent, but rather derivative and inextricably attached to the claim of the injured spouse . . . The two claims are 'inextricably attached' in that ordinarily they are mirror images of one another. That is to say, if an adverse judgment or a settlement bars the injured spouse's cause of action, any claim for loss of consortium necessarily fails as well." (Citations omitted; internal quotation marks omitted.) Id., 375-76; see also QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 380, 773 A.2d 906 (2001). Therefore, because summary judgment is denied as to counts one, four, eight and ten, it is also denied as to this count. CT Page 8188-m
Based on the foregoing reasons, the Hospital's motion for summary judgment is denied as to counts one, four, eight, ten and fourteen based on the foregoing.
BY THE COURT
Hon. Vanessa L. Bryant CT Page 8188-n