Opinion
No. CV 01 0065465
January 29, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE, #111
I FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff, Paul O. Hebert, as executor of the estate of Lorraine E. Hebert, has brought an action for wrongful death against the defendant, Frontier of Northeast Connecticut, Inc., Judy Johnson, and Susan Faye. Between March 29, 1999 and April 20, 1999, Lorraine E. Hebert was a resident of The Center for Optimum Care. On April 20, 1999, Mrs. Hebert was hospitalized and on April 30, 1999 she died. Frontier of Northeast CT, Inc. owned and operated The Center for Optimum Care, a nursing home which is now known as the Roncalli Health Center. For the period of time at issue, the nursing home administrator was Judy Johnson and Susan Faye was the home's dietician. Frontier of Northeast CT, Judy Johnson and Susan Faye will hereinafter be referred to collectively as the defendant.
Through its various counts the plaintiff alleges that while the decedent was a resident of the nursing home she became dehydrated, lost a significant amount of weight, had a poor diet, became confused and developed urosepsis and liver failure. The plaintiff claims that the defendant's actions caused the decedent to develop these conditions and as such caused the decedent conscious pain and suffering that eventually lead to her hospitalization and death. The plaintiff is seeking (1) fair, just and reasonable damages, (2) other relief the court deems appropriate, (3) punitive damages, and (4) attorneys fees.
This action was commenced on April 19, 2001. In the original complaint, the plaintiff pleaded five causes of action: wrongful death due to negligence, breach of an express contract, breach of an implied contract, violation of Connecticut's Patient's Bill of Rights, and lastly, violation of the Federal Nursing Home Reform Act. The defendant subsequently filed a motion to revise the complaint and the plaintiff duly complied filing a revised complaint on February 28, 2002. In the revised complaint the plaintiff has separated the original causes of action into more specific claims.
The revised complaint has twelve counts. In the first count, it is alleged that the defendant's negligence and carelessness resulted in the decedent's wrongful death. In counts two through seven the plaintiff cites various federal regulations regarding nursing home standards and alleges that violating these standards was negligent and careless. Counts two through seven allege that the defendant failed to develop, implement and revise a care plan for the decedent; failed to provide quality care to the decedent by letting her suffer dehydration and severe weight loss; failed to assess and monitor the decedent's condition; failed to provide substitute food or nourishment to the decedent and failed to have the decedent's physician make timely visits. The eighth count alleges breach of an express contract while the ninth count alleges breach of an implied contract created by statements contained within the resident's handbook. The tenth count claims a violation of the Connecticut Unfair Trade Practices Act. The eleventh count alleges violations of the Patients Bill of Rights and the twelfth count alleges violations of the Nursing Home Reform Act.
On March 18, 2003, pursuant to Practice Book § 10-39, the defendant filed a motion to strike counts two through twelve of the plaintiffs' complaint. As required by Practice Book § 10-42, the defendant filed a memorandum in support of the motion to strike, and the plaintiffs timely filed a memorandum in opposition.
II MOTION TO STRIKE STANDARD
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted . . . A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The motion is "properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Id. "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Bhinder v. Sun Co., 263 Conn. 358, 366, 819 A.2d 822 (2003).
III THE LAW
The defendant argues that since the wrongful death claim in the first count is the exclusive remedy available, that this court should consequently strike all of the remaining counts. "The wrongful death statute; General Statutes § 52-555; is the sole basis upon which an action that includes as an element of damages a person's death or its consequences can be brought." Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 295, 627 A.2d 1288 (1993). Therefore, "the availability of that statutory remedy [precludes] the plaintiff from pleading any alternative, common-law cause of action." Campbell v. Plymouth, 74 Conn. App. 67, 74, 811 A.2d 243 (2002). This rule, however, does not bar the plaintiff from advancing alternative theories of recovery, or causes of action, pursuant to the wrongful death statute. See Alfano v. Montowese Health Rehabilitation, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 02-0469356, 34 Conn. L. Rptr. 418 (April 2, 2003, Thompson, J.) (Striking the loss of chance claim because it had not been brought pursuant to § 52-555 as the malpractice claim had been.)
"Under our wrongful death statute, the statutory right of action belongs, in effect, to the decedent, and to the decedent alone, and damages are recoverable for the death . . . as for one of the consequences of the wrong inflicted upon the decedent . . . [T]he cause of action . . . [authorized by the wrongful death statute] is a continuance of that which the decedent could have asserted had [she] lived and to which death may be added as an element of damage." (Citations omitted; internal quotation marks omitted.) Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 149, 491 A.2d 389 (1985).
The Practice Book requires that "separate and distinct causes of action" be numbered separately. Practice Book § 10-26. "A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but whe[n] an entirely new and different factual situation is presented, a new and different cause of action is stated." (Citations omitted; internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 129-30, 788 A.2d 83 (2002). "It is only when the causes of action, that is, the groups of facts upon which the plaintiff bases his claims for relief are separate and distinct that separate counts are necessary or indeed ordinarily desirable." Veits v. Hartford, 134 Conn. 428, 439, 58 A.2d 389 (1948). Moreover, "[u]nder our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint." Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985).
Thus, the issue that must be resolved is whether the plaintiff successfully pleaded an alternative cause of action, pursuant to the wrongful death statute, in each numbered count of the complaint.
Counts Two through Seven
Counts two through seven each assert the same factual predicate and damages. The difference between the counts is found in the alleged breached duty of care for which the plaintiff has pleaded separate and distinct facts. Counts two through seven each allege that the defendant violated a distinct duty of care arising under the code of federal regulations and that such breach resulted in the decedent's wrongful death.
The federal regulations cited and corresponding count are: Second Count: 42 C.F.R. § 483.20(k), Resident Assessment; Third Count: 42 C.F.R. § 483.25(j), Quality of Care; Fourth Count: 42 C.F.R. § 483.25(i), Quality of Care; Fifth Count: 42 C.F.R. § 483.30, Nursing Services; Sixth Count: 42 C.F.R. § 483.35, Dietary Services; Seventh Count: 42 C.F.R. § 483.40, Physician Services.
The defendant moves to strike counts two through seven on the argument that the regulations, and by incorporation the statutes, cited by the plaintiff do not confer a private right of action upon the plaintiff. For this proposition the defendant relies on the holding and rationale in Morgan v. Tolland County Health Care, Inc., Superior Court, judicial district of Hartford, Docket No. CV 95-469204, 16 Conn. L. Rptr. 294 (February 9, 1996, Handy, J.). The plaintiff, however, does not plead these counts as private rights of action under federal law, rather, the plaintiff asserts these as claims of negligence, death resulting.
Although there is a "reluctance on the part of courts to imply private causes of action [in federal statutes], the federal principles do not preclude a state common law negligence action premised on a breach of statute." Kalina v. KMART Corp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 90-269920 (August 5, 1993, Lager, J.).
In Small v. South Norwalk Savings Bank, 205 Conn. 751, 535 A.2d 1292 (1988), the defendant argued "that since the alleged duty is merely of statutory origin the only legitimate inquiry is whether the federal legislation expressly or impliedly [created] a right of action under either federal or state law." Id., 760. However, here as was the case in Small, the plaintiff does not assert claims premised on a private, implied federal cause of action. Id. In both Small and the present case, the plaintiff pleaded common-law negligence for a violation of a federal statute and its cited regulations. Id.
The Small court did not find error in permitting the plaintiff to assert its negligence claim. Reiterating its holding in Wright v. Brown, 167 Conn. 464, 356 A.2d 176 (1975), the court stated: "Where a statute is designed to protect persons against injury, one who has, as a result of its violation, suffered such an injury as the statute was intended to guard against has a good ground of recovery." (Internal quotation marks omitted.) Small v. South Norwalk Savings Bank, supra, 205 Conn. 760. That ground of recovery is statutory negligence. "Statutory negligence is actionable upon the satisfaction of two conditions: (1) the plaintiff must be a member of a class protected by the statute; and (2) the injury must be of the type the statute was intended to prevent." Id.
The regulations cited in counts two through seven all pertain to the minimum standard of care a Medicare nursing home is required to provide. The decedent was a patient in the defendant's nursing home. The regulations cited by the plaintiff are intended to prevent the injuries allegedly suffered by the decedent. The decedent was, therefore, a member of the class protected by the statute and the statute was intended to prevent the type of injuries she allegedly suffered. The plaintiff has successfully pleaded a claim of statutory negligence in each of the counts two through seven.
The motion to strike counts two through seven on the basis that the cited regulations do not create a private cause of action is denied. Individually, the plaintiff has sufficiently pleaded a statutory negligence cause of action for counts two through seven and each count seeks damages for the death of the decedent pursuant to the wrongful death statute. Furthermore, each of these counts are read as pleading alternative theories of negligence pursuant to the wrongful death statute, thus, these counts do not violate the rule of exclusivity.
Counts Eight and Nine
In counts eight and nine the plaintiff pleads breach of contract and breach of implied contract, respectively. The plaintiff alleges that the breach of contracts resulted in wrongful death. The defendant moves to strike these counts as they are legally insufficient in that the contracts at issue did not assure or warrant a specific result.
"Claims of medical malpractice and breach of contract by health care providers are distinct causes of action which may arise from the same set of facts . . . In order to establish a cause of action for breach of contract for medical treatment, the patient must allege and prove that a contract between the parties existed . . . This contract may be express or implied . . . The contractual promise, however, must be for a specific result." (Citations omitted; internal quotation marks omitted.) Surrells v. Belinkie, Superior Court, complex litigation docket at Tolland, Docket No. X07-CV02 00790515 (December 20, 2002, Sferrazza, J.). See also Caffery v. Stillman, 79 Conn. App. 192, 197, 829 A.2d 881 (2003).
In the present case, the plaintiff alleges, in both counts eight and nine, that the defendant "failed to" perform certain contracted for obligations. These obligations, however, all pertain to providing services and care with a certain level of diligence and competency. "[A] claim that a defendant promised to work diligently or in accordance with professional standards is not made a contract claim simply because it is couched in the contract language of promise and breach." Caffery v. Stillman, supra, 79 Conn. App. 197.
The plaintiff pleads that the defendant failed to perform the following functions under both the express contract and implied contract: (a) failed to provide the plaintiff's decedent, Lorraine Hebert, with appropriate medical and nursing care consistent with sound medical and nursing practices and the resources of The Center For Optimum Care; (b) failed to provide care and services in order to permit the plaintiff's decedent to attain the highest practicable level of well being; (c) failed to develop, implement and revise as needed an appropriate care plan for the plaintiff's decedent; (d) failed to administer the defendant's facility in a manner to use its resources to attain the plaintiff's decedent's highest practicable level of well being.
The court notes that the Appellate Court recently decided the case of Hill v. Williams, 74 Conn. App. 654, 813 A.2d 130 (2003), however, Hill is distinguishable from the present case. Hill involved a case of alleged malpractice and breach of contract by a lawyer. Id. The issue in Hill concerned which statute of limitations to apply to the pleadings. Discussing whether the pleadings stated a claim for breach of contact, the Appellate Court found that the attorney had contracted for a specific result, obtaining sole custody for the plaintiff, and that "in the complaint, the plaintiff refers not only to the defendant's failure to proceed in several actions, but also to the defendant's refusals to take certain actions in furtherance of the matters for which the defendant had been hired." (Emphasis added.) Id., 659. Focusing on the meaning of the word "refuse," the court found that: "[u]se of the word refuse imports an intentional act rather than some inadvertence or negligent act or omission on the part of the defendant in breach of the agreement between the parties." Id., 660. Thus, the court held that the six-year statute of limitations for contract claims "applies to the plaintiff's complaint insofar as it seeks to hold the defendant liable for his refusal to perform his duties pursuant to his contracts with the plaintiff." (Emphasis added.) Id., 662. Thus, when faced with allegations of "failing to act" and "refusing to act," the court held that the allegations pertaining to "refusing to act" would be treated as contract claims.
There appears to be no reason for analyzing claims against attorneys differently from claims against physicians. See Mac's Car City, Inc. v. DeNigris, 18 Conn. App. 525, 530, 559 A.2d 712 (1989).
Counts eight and nine fail to (1) allege that there was a promise for a specific result and (2) allege that the defendant "refused," as opposed to "failed," to undertake its contractual obligations. The alleged facts do not support a claim for breach of contract to provide medical services. The court, therefore, grants the defendant's motion to strike counts eight and nine.
Count Ten
The tenth count of the complaint alleges violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110 et. seq. The plaintiff did not oppose the motion to strike this count and conceded to the motion to strike the count in both its oral argument and its memorandum in opposition to the motion to strike. Even if the plaintiff had not conceded the count, based on the holding in Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 699 A.2d 964 (1997), the court would have granted the motion to strike the tenth count.
In Haynes, the Supreme Court held: "[T]he touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services is implicated, aside from medical competence or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel. Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation. To hold otherwise would transform every claim for medical malpractice into a CUTPA claim." Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 38. See also Janusauskas v. Fichman, 264 Conn. 796, 809 A.2d 1066 (2003). The plaintiff, or more appropriately the decedent had she lived, did not allege that an entrepreneurial or business aspect was implicated; the motion to strike the tenth count is granted.
Count Eleven
The defendant's sole basis for striking count eleven is that a wrongful death suit is the exclusive remedy in an action that includes as an element of damages a person's death or its consequences. The court agrees with the holding in Morgan, supra, Superior Court, Docket No. CV 95-469204, that as the exclusive remedy, the wrongful death statute precludes the plaintiff's new cause of action premised on the Patients Bill of Rights, General Statutes § 19a-550.
"[W]here damages for death itself are claimed in an action based on our wrongful death statute, recovery of any ante-mortem damages flowing from the same tort must be had, if at all, in one and the same action. In other words, there cannot be a recovery of damages for death itself in one action and a recovery of ante-mortem damages, flowing from the same tort, in another action brought under [the survival of action statute]." Floyd v. Fruit Industries, Inc., 144 Conn. 659, 669, 136 A.2d 918 (1957).
Rather than pleading the alleged violation of the Patient's Bill of Rights as an alternative cause of action pursuant to the wrongful death statute, and thus limiting recovery to that authorized under the wrongful death statute; the plaintiff pleaded the Patient's Bill of Rights as a means to recover attorney fees. This can only be considered as an attempt to recover ante-mortem damages, arising out of the same tort, in another action pursuant to the survival of actions statute, General Statutes § 52-599. Such a course of action is inapposite to the rule of exclusivity, the plaintiff has not pleaded a legally sufficient claim, as such the motion to strike count eleven is granted.
Count Twelve
The defendant moves to strike the twelfth count for two reasons: (1) the cited federal regulation does not confer a private right of action on the plaintiff and (2) the wrongful death statute is the exclusive remedy when damages for death are pursued.
Count twelve, like counts two through seven, is based on a federal regulation, specifically, the Nursing Home Reform Act, 42 U.S.C. § 1935i-(3). As with counts two through seven, count twelve could be interpreted as a claim of statutory negligence brought under the guise of the wrongful death statute. Unlike counts two though seven, however, the plaintiff seeks punitive damages under 42 U.S.C. § 1935i-(3) in addition to the statutory recovery permitted under § 52-555. In this count, the plaintiff seeks damages beyond what is permitted by the wrongful death statute. This is similar to what the plaintiff attempted to do in count eleven.
The court finds that count twelve seeks ante-mortem damages arising out of the underlying tort and, therefore, is an action pursuant to the survival of actions statute. As previously stated, "there cannot be a recovery of damages for death itself in one action and a recovery of ante-mortem damages, flowing from the same tort, in another action brought under [the survival of action statute]." Floyd v. Fruit Industries, Inc., supra, 144 Conn. 669. The motion to strike count twelve is granted.
IV CONCLUSION CT Page 1173
For the foregoing reasons the court denies the defendant's motion to strike counts two, three, four, five, six and seven of the revised complaint and grants the motion to strike counts eight, nine, ten, eleven and twelve of the revised complaint.SWIENTON, JUDGE.