Opinion
No. CV 06 4005043
December 27, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE #110, #113
FACTS
The plaintiff, David Meade, filed an amended and revised sixteen-count complaint on December 8, 2006, alleging that he admitted himself as a patient to defendant Day Kimball Hospital for treatment of alcohol abuse. The plaintiff alleges that Day Kimball is "a covered entity pursuant to the Health Insurance Portability and Accountability Act (HIPAA)" and is "required to comply with provisions of 42 USC Part 2 relating to confidentiality of medical records of persons undergoing treatment for substance abuse." The plaintiff alleges that he signed an authorization for release of information provided by Day Kimball identifying to which individuals the hospital was authorized to release his medical records.
The plaintiff claims that his ex-wife, Nancy Meade, filed a motion for modification of custody in which she alleged that the plaintiff was suffering from severe alcoholism and therefore was unable to care for his daughter. The plaintiff further alleges that Nancy Meade notified his business customers and personal friends of his treatment, including the municipal volunteer fire department of which he was a member, which subsequently informed him that his services were no longer needed. The plaintiff alleges that he contacted Day Kimball regarding the release of his medical records and was notified in a letter that Day Kimball had released his medical records to defendant Orthopedic Associates upon the request of an employee of Orthopedic Associates and in accordance with a business agreement between the two defendants. The plaintiff maintains that he has never been a patient of Orthopedic Associates and that Orthopedic was not authorized to receive his medical records. He alleges that his ex-wife, Nancy Meade, was an employee of Orthopedic Associates, and that she accessed his medical records and health information, and communicated to multiple parties this protected health information. Nancy Meade is not a defendant in this action. The plaintiff finally alleges that, as a result of Day Kimball's release of his health information to Orthopedic Association, the Connecticut Department of Children and Families became aware of his medical condition and subsequently instituted proceedings against him.
On December 13, 2006, defendant Day Kimball filed a motion to strike, accompanied by a memorandum, counts one, three, five, six, eight, ten, twelve, thirteen and fifteen of the plaintiff's revised complaint on the ground that they fail to state claims upon which relief may be granted or are factually insufficient and legally incognizable as a matter of law, and paragraphs two through six of the plaintiff's demand for relief on the ground that "they are legally insufficient."
On January 23, 2007, defendant Orthopedic Associates filed a motion to strike, accompanied by a memorandum, counts two, four, seven, nine, eleven, fourteen and sixteen of the plaintiff's revised complaint, and paragraphs two through six of the prayer for relief from the plaintiff's revised complaint, on the ground that the counts and paragraphs "fail to state claims upon which relief can be granted."
The plaintiff filed an objection, accompanied by a memorandum, to each motion to strike. Oral argument was held on August 1, 2007.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party'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). "A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498.
A. Invasion of Privacy — Counts One through Four
The Connecticut Supreme Court recognized the tort of invasion of privacy in Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127-28, 438 A.2d 1317 (1982). The court stated:
In recognizing this right of action today, we note that the law of privacy has not developed as a single tort, but as a complex of "four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff `to be let alone.'" . . . The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts § 652A as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public.
Counts one through four of the plaintiff's revised complaint allege two categories of invasion of privacy as against Day Kimball and Orthopedic Associates. Counts one and two allege unreasonable publicity given to a plaintiff's private life, while counts three and four allege publicity that unreasonably places the other in a false light before the public. The plaintiff alleges in the first count that Day Kimball released his medical records and protected health information to Orthopedic Associates, without his authorization. The plaintiff alleges further that this information was then communicated to multiple parties, including the Connecticut Department of Children and Families (DCF), which then "instituted proceedings against him." In count two, the plaintiff alleges that Orthopedic Associates failed to properly and adequately safeguard his protected health information, failed to prevent the wrongful acquisition of his medical records from Day Kimball, and that, as a result, the Connecticut Department of Children and Families became aware of his medical condition and instituted proceedings against him.
In Perkins v. Freedom of Information Commission, 228 Conn. 158, 635 A.2d 783 (1993), the Supreme Court approved the Restatement's definition of the cause of action for giving unreasonable publicity to another's private life. In order to successfully litigate a cause of action for giving unreasonable publicity to the plaintiff's private life, the plaintiff must plead and prove: (1) that the defendant gave publicity; (2) to a matter concerning the private life of the plaintiff; and, (3) that the matter publicized was of a kind that (a) would be highly offensive to a reasonable person, and (b) would not be of legitimate concern to the public. Id., 170-72. See Handler v. Arends, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 0527732 (March 1, 1995, Sheldon, J.).
"[P]ublicity is a communication that reaches, or is sure to reach, the public at large." Id. A cause of action for invasion of privacy will not lie where the defendant did not directly publicize the private facts about the plaintiff even though "publicity was a natural and foreseeable consequence" of the defendant's actions. LaFontaine v. Family Drug Stores, Inc., 33 Conn.Sup. 66, 72, 360 A.2d 899 (1976).
According to 3 Restatement (Second) Torts. whereas "publication" includes any communication by the defendant to a third person[,] "[p]ublicity" . . . means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication . . . It is one of a communication that reaches, or is sure to reach, the public . . . The distinction . . . is one between private and public communications . . . Therefore, "publication" can involve communication that is made in private or public. But, "publicity" can only involve communication that is made in public. Where a plaintiff fails to allege facts relating to publicity, the complaint will fail for insufficiently pleading a cause of action for invasion of privacy by false light . . . While there is no "magic number" of persons which constitute a public audience for purposes of invasion of privacy causes of action, there must be some claim that false and highly offensive information about the plaintiff was made in public, and not merely that it was published.
CT Page 22158 Stapleton v. Concentra Health Services, Superior Court, judicial district of Hartford, Docket No. CV 064021332 (August 1, 2007, Wagner, J.) ( 43 Conn. L. Rptr. 848, 849).
In the present case the plaintiff's complaint is devoid of any allegation that Day Kimball actually gave publicity to his medical information. The plaintiff alleges only that Day Kimball "knew or should have known that the unauthorized release of plaintiff's medical records . . . would be offensive to persons of ordinary sensibilities." While this allegation is the third of three requirements the plaintiff must prove to successfully litigate this cause of action, the plaintiff has, nevertheless, failed to allege the first requirement of publicity, and, therefore, this count fails to state a cause of action for giving unreasonable publicity to another's private life claim. Perkins v. Freedom of Information Commission, supra, 228 Conn. 170-72. For the same reason, the second count of the plaintiff's amended complaint, as against Orthopedic Associates for giving unreasonable publicity to the plaintiff's private life, fails to state a claim upon which relief can be granted.
The plaintiff alleges in count three of his revised complaint that Day Kimball's release of his medical records and health information resulted in his false portrayal as an "active alcoholic." The plaintiff maintains that due to the unauthorized release of his protected health information he was required by DCF to submit to random testing in order to maintain joint custody of his child, he was asked to leave the volunteer fire department of which he was a member, and he suffered loss of business. The plaintiff further alleges in count four, that Orthopedic Associates' release of his medical records and health information placed him "in a false light within the community" and that they should have known that the unauthorized release of this information "would pose a high risk of placing the plaintiff in a false light."
"[A] false light invasion of privacy occurs if `(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.' . . . This form of invasion of privacy protects one's interest in not being placed before the public in an objectionable false light or false position, `or in other words, otherwise than as he is.' . . . The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true . . . and (2) is such a `major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position.'" Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 131, 438 A.2d 1317 (1982). Applying these standards to the present case, the court notes that the plaintiff fails to allege that the information released regarding his alcohol treatment was false. The plaintiff alleges in his amended complaint that "[o]n or about September 7, 2004, [he] voluntarily admitted himself as a patient to defendant Day Kimball for treatment of alcohol abuse" and that he was a patient at Day Kimball "for approximately ten (10) days and was discharged from the hospital on September 17, 2004." Counts three and four of the plaintiff's amended complaint, therefore, fail to state a claim of false light invasion of privacy upon which relief can be granted.
B. Tortious Breach of Confidence — Count Five
In count five of his revised complaint, the plaintiff alleges tortious breach of confidence by Day Kimball. The plaintiff alleges that Day Kimball had an affirmative duty to maintain the confidentiality of medical information provided to it by its patients, and that, in breach of that duty, Day Kimball released his protected health information to Orthopedic Associates. In support of its motion to strike, Day Kimball argues that "Connecticut jurisprudence regards breach of confidence as a presumption, rather than as a separate and distinct tort" and, therefore, this action is not sustainable. Day Kimball further argues that "[e]ven if such a cause of action lay in Connecticut, the Plaintiff would be required to allege that there was a fiduciary relationship between himself and the Hospital; and that there was a disclosure of proprietary information to an adversary." Finally, Day Kimball maintains that while the plaintiff's ex-wife was his adversary in pending divorce proceedings, the plaintiff has not alleged that the hospital "knew or should have known that the Plaintiff was divorced, or in any way involved in an adversarial proceeding . . . [or] that the Hospital knew or should have known that Nancy Meade would attempt to procure her ex-husband's confidential medical records."
There is no established cause of action in Connecticut for breach of confidence in the context of a patient-physician or patient-hospital relationship. Breach of confidence has typically arisen in the context of the attorney-client relationship, where it is considered a presumption. See Goldberg v. Corporate Air, Inc., 189 Conn. 504, 512, 457 A.2d 296 (1983), rev'd on other grounds, Burger Burger, Inc. v. Murren, 202 Conn. 660, 522 A.2d 812 (1987). "Every client has a right to expect that his lawyer will not disclose his secrets. To protect this right, courts will not inquire whether the lawyer has, in fact, used confidential information to the client's detriment because such inquiry would require the revelation of the very information the canon is designed to protect . . . Where the opportunity for disclosure of confidential information to an adversary is shown, the breach of confidence would not have to be proved; it is presumed in order to preserve the spirit of the Code [of Professional Responsibility]." (Citations omitted; internal quotation marks omitted.) Id.
Day Kimball cites one Connecticut case that has discussed a claim of breach of confidentiality similar to the claim in the present case. Dotson v. St. Mary's Hospital, 1 Conn. L. Rptr. 567 (1990). In Dotson, the plaintiff alleged that an HIV test was performed without his knowledge or consent and that information concerning this test was then wrongfully disclosed to his employer. The court concluded that while it did recognize "that there may be a cause of action for breach of confidentiality," it would not take the opportunity to find such a cause of action since the plaintiff had consented to the disclosure of his discharge summary to his employer. (Emphasis added.) Id. See also Doe v. Blank, 809 F.Sup. 1020, 1027 (Conn. 1992) (court briefly discussed "whether a patient can assert a cause of action against his or her physician for the disclosure of confidential information gained during the course of treatment" but based decision on a finding of absolute privilege for statements made in judicial proceedings).
While this court acknowledges that "[a] motion to strike may be used to test whether Connecticut is ready to recognize some newly emerging ground of liability"; Bakker v. Brave Industries, Inc., 48 Conn.Sup. 70, 76, 829 A.2d 928 (2002) [ 33 Conn. L. Rptr. 545]; it declines the plaintiff's invitation to do so in the present case. Count five, therefore, fails to state a claim upon which relief can be granted.
C. Negligent Supervision — Counts Six and Seven
In counts six and seven of his revised complaint, the plaintiff alleges negligent supervision by Day Kimball and Orthopedic Associates, respectively. As against Day Kimball, the plaintiff alleges the hospital "failed to adequately train and/or supervise its employees" and that such "negligent supervision of its employees and agents resulted in the unauthorized release of plaintiff's protected health information." In support of its motion to strike, Day Kimball argues that Nancy Meade, the plaintiff's ex-wife, surreptitiously obtained the plaintiff's protected medical information without the knowledge of the hospital, that the plaintiff failed to allege that "the Hospital owed a duty to guard against attempts to obtain the information by devious means," and that the plaintiff further failed to allege "facts supporting any claim that supervision of the Hospital's employees would or could have prevented" Nancy Meade from obtaining his medical information. In count seven, the plaintiff alleges that Orthopedic Associates was the employer of Nancy Meade at the time his medical records were requested, and that Orthopedic Associates "failed to adequately train and/or supervise its employees" resulting in the unauthorized release of plaintiff's protected health information. In support of its motion to strike, Orthopedic Associates argues that Nancy Meade's alleged conduct was not reasonably foreseeable to Orthopedic Associates and that the plaintiff does not allege that it was.
"`Under Connecticut law, an employer may be held liable for the negligent supervision of employees.' . . . `Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so . . . The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.' . . . `Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.'" (Citations omitted; internal quotation marks omitted.) Seguro v. Cummiskey, 82 Conn.App. 186, 191-93, 844 A.2d 224 (2004). "The test that is often applied in determining whether there exists a duty to use care is the foreseeability of harm. Would the ordinarily prudent man in the position of the defendant, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? This does not mean foreseeability of any harm whatsoever or foreseeability that the particular injury which resulted would occur. It is, in short, the foreseeability or anticipation that harm of the general nature of that suffered would be likely to result, which gives rise to a duty to use due care, breach of which might constitute negligence." (Internal quotation marks omitted.) Id., 194.
In the present case, the plaintiff alleges in count six that Day Kimball "failed to adequately train and/or supervise its employees and agents" and that this failure "resulted in the unauthorized release of plaintiff's protected health information." In count seven, the plaintiff alleges that "Orthopedic Associates was the employer of Nancy Meade at the time plaintiff's medical records was requested from Day Kimball," and that the defendant's "negligent supervision of its employees and agents resulted in the unauthorized release of plaintiff's protected health information." The plaintiff has not alleged that Nancy Meade was ever an employee of Day Kimball, nor has the plaintiff identified which employee Day Kimball had a duty to supervise. This omission is relevant because "[a] plaintiff must plead and prove that [he] suffered an injury due to the defendant's failure to supervise an employee whom the defendant had a duty to supervise." Roberts v. Circuit-Wise, Inc., 142 F.Sup.2d 211, 214 (D.Conn. 2001). Moreover, "[a] defendant does not owe a duty of care to protect a plaintiff from another employee's tortious acts unless the defendant knew or reasonably should have known of the employee's propensity to engage in that type of tortious conduct." Id. "Nearly all the Superior Court decisions . . . have required the plaintiff in a negligent supervision action to plead and prove injury by the defendant's negligence in failing to properly supervise an employee who the defendant had a duty to supervise and who the defendant knew or should have known would cause the injury." Companions Homemakers, Inc. v. Pogasnik, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 04 0834592 (June 7, 2005, Wagner J.T.R.). The plaintiff has not alleged that Day Kimball knew or should have known of any employee's propensity for tortious conduct. While the plaintiff does identify Nancy Meade as the employee of Orthopedic Associates, the plaintiff, nevertheless, has not claimed that Orthopedic Associates knew or should have known that its employee had a propensity for tortious conduct. "[J]udges of the Superior Court have granted motions to strike in cases where the pleadings in question fail to allege facts that the employer knew or should have known of the employee's propensity for tortious conduct." Doe v. Nelson, Superior Court, judicial district of Waterbury, Docket No. CV 05 5000575 (August 1, 2006, Matasavage, J.) ( 41 Conn. L. Rptr. 745, 747); see also Ahern v. Kappalumakkel, judicial district of Ansonia-Milford at Milford, Docket No. CV 01 0075617 (December 1, 2004, Carroll, J.) ( 38 Conn. L. Rptr. 315), aff'd, 97 Conn.App. 189, 903 A.2d 266 (2006); Zides v. Quinnipiac University, Superior Court, judicial district of New Haven, Docket No. CV 02 0470131 (December 15, 2003, Arnold, J.); Perry v. SBC/SNET, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 04085367 (September 12, 2005 Moran, J.T.R.). Accordingly, count six and seven fail to state a claim for negligent supervision.
D. Negligent Infliction of Emotional Distress — Counts Eight and Nine
In counts eight and nine of his revised complaint, the plaintiff alleges negligent infliction of emotional distress as against Day Kimball and Orthopedic Associates. The plaintiff alleges that the conduct of Day Kimball and Orthopedic Associates "created an unreasonable risk of causing the plaintiff severe emotion distress," that it was "foreseeable that the plaintiff would suffer emotional distress as a result of the defendants' conduct," and that this conduct did cause the plaintiff severe emotional distress. In support of its motion to strike, Day Kimball argues that, even if its actions created an unreasonable risk of causing the plaintiff severe emotional distress, the plaintiff failed to allege that the distress might result in illness or bodily harm. Orthopedic Associates proffers the same argument in support of its own motion to strike.
"In general, to prevail on [a cause of action for negligent infliction of emotional distress] a plaintiff must prove that the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress, the plaintiff's distress was foreseeable, the emotional distress was severe enough that it might result in illness or bodily harm, and, finally, that the defendant's conduct was the cause of the plaintiff's distress . . . The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement . . . 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. (Citations omitted; internal quotation marks omitted.) Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005). The plaintiff alleged that the defendants' conduct "caused the plaintiff severe emotional distress and plaintiff Meade has been harmed and claims damages." The plaintiff has failed to allege that the emotional distress caused by the defendants was severe enough that it might result in illness or bodily harm, and has not, therefore, sufficiently stated a cause of action for negligent infliction of emotional distress in either count.
E. Intentional Infliction of Emotional Distress — Counts Ten and Eleven
In counts ten and eleven of his revised complaint, the plaintiff alleges intentional infliction of emotional distress as against Day Kimball and Orthopedic Associates. In count ten, the plaintiff alleges Day Kimball "acted in reckless disregard of the high degree of probability that severe emotional distress would follow," that the conduct of the defendant was both extreme and outrageous, and that the plaintiff had been harmed. In count eleven, the plaintiff alleges Orthopedic Associates "intended to inflict emotional distress on plaintiff Meade or acted in reckless disregard of a high degree of probability that severe emotional distress would follow," that the "acts of the defendant were the cause of the plaintiff's distress," and that the "conduct by the defendant was both extreme and outrageous." In support of the defendants' motion to strike, both Day Kimball and Orthopedic Associates argue that the plaintiff failed to allege that the defendants' conduct rose to the level of extreme and outrageous.
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (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 distress; and (4) that the emotional distress sustained by the plaintiff was severe." Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). "Emotional distress is severe when it reaches a level `which no reasonable [person] could be expected to endure.' 1 Restatement (Second), Torts § 46, comment (j) (1965); Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 91 597 A.2d 846 (1991)." Zulawski v. Stancil, Superior Court, judicial district of Ansonia Milford, Docket No. CV 050002035 (July 14, 2006, Hartmere, J.) ( 41 Conn. L. Rptr. 646, 649).
In his objection to both motions, and the accompanying memoranda, the plaintiff appears to claim intentional infliction of emotional distress under a theory of respondeat superior. "[U]nder the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment." Matthiessen v. Vanech, 266 Conn. 822, 839, 836 A.2d 394 (2003). "[V]icarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of public policy that one person should be liable for the act of [another]." (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692 n. 16, 849 A.2d 813 (2004). "[A] fundamental premise underlying the theory of vicarious liability is that an employer exerts control, fictional or not, over an employee acting within the scope of employment, and therefore may be held responsible for the wrongs of that employee . . . It is as a result of this control that the theory of vicarious liability allows employers to be subject to liability for the physical harm caused by the negligent conduct of their employees acting within the scope of employment." (Citations omitted.) Id., 692-93 n. 16. "`[I]n the course of his employment' means while engaged in the service of the master, and it is not synonymous with the phrase `during the period covered by his employment.' . . . Thus, it must be the affairs of the principal [or master], and not solely the affairs of the agent [or servant], `which are being furthered in order for the doctrine to apply." (Citation omitted; internal quotation marks omitted.) Matthiessen v. Vanech, supra, 266 Conn. 839 n. 15.
Thus, in the present case, while Nancy Meade's conduct could be described as "extreme and outrageous," the plaintiff has not alleged that her conduct was undertaken to benefit Orthopedic Associates in any way. Rather, the clear inference to be drawn from the plaintiff's complaint is that Nancy Meade derived the sole benefit from acquiring the plaintiff's medical information. Moreover, the plaintiff has not alleged that he suffered emotional distress that reached a level that no reasonable person could endure. Although the plaintiff used the word "severe" to describe his emotional distress, his factual allegations fail to support this conclusion. Merely stating that the alleged emotional distress is severe is an unsupported legal conclusion and it is subject to a motion to strike. "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). See Hart v. Mill Plain Autobody, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 353463 (December 3, 1999, Melville, J.) ("Merely stating that the alleged emotional distress is severe is an unsupported legal conclusion and it is subject to a motion to strike"). For the aforementioned reasons, counts ten and eleven of the plaintiff's revised complaint fail to state a cause of action for intentional infliction of emotional distress.
F. Breach of Contract — Count Twelve
In count twelve of his revised complaint, the plaintiff alleges breach of contract by Day Kimball. The plaintiff alleges that Day Kimball entered into a contractual relationship with the plaintiff to provide care and treatment to him, that the plaintiff signed an authorization for release of information identifying those persons to whom Day Kimball was authorized to release the plaintiff's medical information and that his authorization created a contractual obligation to protect the plaintiff's medical information. Finally, the plaintiff alleges Day Kimball breached this contract by releasing the plaintiff's medical information to Orthopedic Associates. In support of motion to strike, Day Kimball argues that the plaintiff has failed to allege that the parties entered into an agreement with each other in exchange for consideration, that the plaintiff has failed to allege that either party received consideration in exchange for performance on the alleged contract, and that, finally, the plaintiff fails to allege any facts tending to suggest that he performed on any obligation pursuant to the alleged contract, that the hospital made any promises to him or that he detrimentally relied upon any promise made to him.
"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." Chiulli v. Zola, 97 Conn.App. 699, 706-07, 905 A.2d 1236 (2006). In paragraph thirty of count twelve, the plaintiff alleges that Day Kimball "entered a contractual relationship with plaintiff to provide care and treatment to him in accordance with its institutional policies and procedures, and with public law and policy." While the plaintiff does not allege that the parties engaged in a written contract, the plaintiff appears to refer to a written document in paragraph thirty-one. In this count, the plaintiff notes that he executed an authorization for release of information whereupon he "expressly" identified "those person to whom defendant Day Kimball was authorized to release his medical records and protected health information." At a minimum, there appears to be an implied contract between the parties concerning the plaintiff's alcohol treatment program. The plaintiff alleges that Day Kimball breached its contract with the plaintiff by violating its own institutional policies and procedures as reflected in the hospital's use of an authorization, and public law and policy as reflected in HIPAA. As such, the plaintiff has sufficiently pled a cause of action for breach of contract and the defendant's motion to dismiss count twelve is denied.
G. CUTPA — Counts Thirteen and Fourteen
In counts thirteen and fourteen of his revised complaint, the plaintiff alleges Day Kimball and Orthopedic Associates violated the Connecticut Unfair Trade Practices Act ("CUTPA"). The plaintiff alleges that "Day Kimball's wrongful release of plaintiff's medical record and protected health information violates the Connecticut Unfair Trade Practices Act . . . in that its failure to adhere to its agreement with plaintiff is unfair, offends public safety and causes substantial harm to consumers." In support of its motion to strike, Day Kimball argues that the plaintiff has merely alleged a breach of contract claim and, further, that the plaintiff "fails to allege any facts which support an affirmative act by the Hospital which could conceivably be construed as a business practice; does not allege any conduct which could be thought of as harmful to consumers; and does not allege any unscrupulous, immoral or unethical behavior by the Hospital." Rather, Day Kimball argues, "the sum of the unscrupulous . . . behavior is claimed on the part of an individual who is not a party to this action: that is the Plaintiff's ex-wife, Nancy Meade." The plaintiff alleges Orthopedic Associates violated the same provision of CUTPA in that its failure to adhere to its agreement with the plaintiff to protect his medical record and protected health information was unfair, offended public safety and caused substantial harm to consumers. In support of its motion to strike, Orthopedic Associates argues that the plaintiff has failed to allege that he had a business relationship with Orthopedic Associates or that Orthopedic Associates' conduct was "unfair and deceptive" in violation of CUTPA. Finally, Orthopedic Associates argues that the plaintiff's CUTPA claim is preempted by the Health Insurance Portability and Accountability Act ("HIPAA").
The court will address first the issue of preemption. In re Jeannine Fisher et al. v. Yale University et al., Superior Court, judicial district of New Haven, Docket No. X10 CV 04 4003207 (April 2, 2006, Munro, J.) ( 41 Conn. L. Rptr. 137), the court first addressed the question central to this claim: "To what extent, if any, has HIPAA pre-empted the right of a private individual to bring a CUTPA action in Connecticut (or an action under an analogous statute in another jurisdiction) for a violation of the provisions of HIPAA?" Id., 137-38. In count twenty-one of her complaint Fisher asserted a claim under CUTPA, alleging that, as a result of the Hospital's failure to comply with the HIPAA requirements to safeguard her medical records and personal information in their files, the defendant was, "as an employee of the defendants (directly or through a third party) able to access the information and intimidate, threaten and harass" her and her immediate family. Id., 138. The court determined that "HIPAA contains preemption provisions, in both the statutory Act as well as administrative regulations promulgated by the Secretary of Health and Human Services," and determined, accordingly, that "CUTPA is preempted by the general HIPAA preemption provisions set forth at 42 U.S.C. § 1320d-7 and 42 C.F.R. § 160.203(b)." Id., 140. Moreover, the Fisher court noted that "[n]othing in HIPAA's own provisions or the promulgated regulations authorize a private cause of action. Indeed, courts have repeatedly held that Congress did not intend to create a private cause of action under HIPAA . . . Therefore, to the extent CUTPA permits a private right of action for a HIPAA violation, CUTPA constitutes a `contrary' provision of state law and falls within the ambit of the HIPAA general preemption rule." (Citations omitted; internal quotation marks omitted.) Id., 139. Finally, the court concluded that "the common law of Connecticut has not, to date, been developed to provide a right of action for violation of HIPAA's privacy provisions. Accordingly, the court finds that CUTPA is inapplicable to the defendant Hospital on the facts of this case." Id., 140.
This court concurs with the reasoning in Fisher and, therefore, finds that the plaintiff's CUTPA claim is preempted by HIPAA and does not provide a private right of action. Further, as discussed in Fisher, Connecticut does not recognize such a right of action and, therefore, CUTPA is inapplicable to both Day Kimball and Orthopedic Associates in the present case, although the court recognizes that Day Kimball did not proffer this argument in support of its motion to strike.
Additionally, the plaintiff failed to allege a consumer or business relationship with Orthopedic Associates. "[I]t strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any ascertainable harm, caused by any person in the conduct of any `trade' or `commerce.' Although privity, in the traditional contractual sense of an exchange of consideration between parties, may no longer be essential for standing under CUTPA, a claimant under CUTPA must possess at least some type of consumer relationship with the party who allegedly caused harm to him or to her." (Emphasis added.) Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 725-26, 627 A.2d 374 (1993). Id., 725-27; see Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 157-58, 881 A.2d 937 (2005) (requiring CUTPA plaintiff to allege business relationship in support of claim). In the present case, the plaintiff has failed to allege any business or consumer relationship with Orthopedic Associates, and, therefore, count fourteen fails to state a CUTPA claim.
H. Violation of Public Policy
In counts fifteen and sixteen of his revised complaint, the plaintiff alleges that, in improperly releasing his medical records, the defendants violated public policy as reflected in General Statutes §§ 17a-688(c), 52-146o, 52-146i, HIPAA, and 42 U.S.C. Part 2. This appears to be an attempt to claim a private right of action to recover monetary damages for violations of the cited statutory sections. In reviewing these statutes, the court finds that none of these statutes provide for a private right of action. Neither would any of them support an implied right of action.
Our Supreme Court adopted a three-part test to determine whether an implied private right of action exists. "First, is the plaintiff one of the class for whose . . . benefit the statute was enacted . . . ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?" (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Ass'n. v. King, 277 Conn. 238, 247, 890 A.2d 522 (2006). The plaintiff alleges that he was a patient of Day Kimball hospital, and that Day Kimball permitted the disclosure of his treatment, and, therefore, he does appear to be a member of the class for whose benefit General Statutes § 17a-688(c) was enacted. Indeed, the Appellate Court has determined that § 17a-688(c) does provide for a private right of action for injunctive relief; however, the Appellate Court has not addressed whether the statute provides for a private right of action for other remedies. In Skakel v. Benedict, 54 Conn.App. 663, 686, n. 11, 738 A.2d 170 (1999), the Appellate Court stated that "our legislature, by mandating in § 17a-688(c) that all persons, hospitals, treatment facilities and the department of mental health and addiction services shall not violate `federal statutes concerning confidentiality of alcohol or drug patient records and any regulations pursuant thereto,' impliedly authorized a private right of action for injunctive relief . . . We express no opinion concerning whether this statute affords a private right of action for monetary damages or other remedies."
Section 17a-688(c) provides: "No person, hospital or treatment facility may disclose or permit the disclosure of, nor may the department disclose or permit the disclosure of, the identity, diagnosis, prognosis or treatment of any such patient that would constitute a violation of federal statutes concerning confidentiality of alcohol or drug patient records and any regulations pursuant thereto, as such federal statutes and regulations may be amended from time to time. The department shall adopt regulations, in accordance with chapter 54, to protect the confidentiality of any such information that is obtained by the department."
The court concludes that neither § 17a-688(c) nor § 52-146o, nor 52-146i create a private cause of action.
In Provencher v. Enfield (SC 17793) (Dec. 25, 2007), the Supreme Court held "there exists a presumption in Connecticut that private enforcement does not exist unless expressly provided in a statute. In order to overcome that presumption, the plaintiff bears the burden of demonstrating that such an action is created implicitly in the statute . . . The stringency of the test is reflected in the fact that since, the court decided Napoletano, we have not recognized an implied cause of action despite numerous requests." [Footnote omitted.] Provencher Part I.
The plaintiff's sole claim for injunctive relief is his request for an "order suspending the electronic exchange of medical records from Day Kimball Healthcare, Inc. to the Orthopedic Associates." In the analysis provided below this court strikes the plaintiff's prayer for injunctive relief, and, therefore, there remains no private cause of action for a claim under this statute.
Finally, the plaintiff alleges that, in improperly releasing his medical records, the defendants violated public policy as reflected in HIPAA and 42 U.S.C. Part 2. As discussed above, in relation to counts thirteen and fourteen, "the common law of Connecticut has not, to date, been developed to provide a right of action for violation of HIPAA's privacy provisions." Jeannine Fisher et al. v. Yale University et al., supra, 41 Conn. L. Rptr. 140. The plaintiff's pleading contains only a reference to 42 U.S.C. Part 2, without further specifying which particular statutes the defendants violated. This allegation is insufficiently precise to support a cause of action, and, therefore, fails to state a claim upon which relief can be granted.
I. Prayer for Relief
The defendants move to strike paragraphs two through six of the plaintiff's prayer for relief. A party may use a motion to strike to attack the legal sufficiency of a prayer for relief. Practice Book § 10-39(a)(2). A court may strike a claim for relief "only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). The court need not address the merits of the motion to strike the prayer for relief as to counts one through eleven, and counts thirteen through sixteen, since the substantive count has already been stricken. The court, therefore, will address only the legal sufficiency of the prayer for relief as it pertains to count twelve of the plaintiff's amended complaint, a claim of breach of contract as against Day Kimball.
In support of their motion to strike paragraph two of the plaintiff's prayer for relief, Day Kimball argues that the plaintiff's claims for compensatory damages is duplicative of his claim for money damages in paragraph one. The purpose of a motion to strike is to contest the legal sufficiency of any or all counts of a complaint, cross claim, or counterclaim. See Practice Book § 10-39. A request to revise, on the other hand, is appropriate when a party seeks "the deletion of any unnecessary, repetitious . . . or otherwise improper allegations in an adverse party's pleading . . ." Practice Book § 10-35. While there is no appellate authority on this issue, a majority of Superior Court cases have generally held that "such a pleading flaw is properly addressed not by a motion to strike but by a request to revise to eliminate the duplication." Glorioso v. Burlington Police Dept., 48 Conn.Sup. 10, 13, 826 A.2d 271 [ 34 Conn. L. Rptr. 472] (2003); see also Brookes v. New Haven Savings Bank, Superior Court, judicial district of Hartford, Docket No. CV 94 0544390 (January 28, 1997, Hennessey, J.) ("The proper method by which to rid a complaint of duplicative counts is a request to revise"); Chmelecki v. Decorative Screen Printers, Inc., Superior Court, judicial district of New London, Docket No. 532041 (June 19, 1995, Hurley, J.) ("[The defendant's] argument that these counts are repetitive of count six should have been raised in a request to revise and is not properly raised in a motion to strike."); but see Heyward v. Friendly Ice Cream Corp., Superior Court, judicial district of New Haven, Docket No. CV 950375622 (November 9, 1995, Hadden, J.) (rejecting without discussion argument that removing repetitive counts requires request to revise rather than motion to strike). However, the court is not convinced that money damages and compensatory damages are duplicative. The motion to strike the prayer for compensatory damages is denied.
The court recognizes that a request to revise is no longer timely; Practice Book § 10-6; and that permission of the judicial authority would be required. Practice Book § 10-7.
"It is well settled that punitive damages generally are not recoverable for breach of contract." (Internal quotation marks omitted.) Lydall v. Ruschmeyer, 282 Conn. 209, 244, n. 24, 919 A.2d 421 (2007). The court, therefore, strikes this prayer for relief.
Day Kimball argues that the plaintiff's claim for "pre and post-judgment interest" should be stricken because prejudgment interest is not allowed in a case seeking consequential damages and post-judgment interest is not legally sufficient as the plaintiff does not state a claim to regain money negligently or improperly detained. In his opposing memorandum, the plaintiff argues that "[w]hile pre and post judgment interest on consequential damages may be denied in a case seeking only consequential damages, based on their uncertainty, the money damages sought by plaintiff based on theories other than negligence, can, if ascertainable, be subject to same." General Statues § 37-3a governs the rate of interest that may be recovered in civil actions, and "give[s] rise to two procedural requirements, pursuant to which a trial court must determine: `(1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated.'" (Internal quotation marks omitted.) Sears, Roebuck Co. v. Board of Tax Review, 241 Conn. 749, 763, 699 A.2d 81 (1997). "Prejudgment interest pursuant to § 37-3a has been applied to breach of contract claims for liquidated damages, namely, where a party claims that a specified sum under the terms of a contract, or a sum to be determined by the terms of the contract, owed to that party has been detained by another party." Ceci Bros., Inc. v. Five Twenty-One Corp., 81 Conn.App. 419, 427 (2004). The plaintiff has not alleged that defendant wrongfully detained money due to him, nor has the plaintiff alleged that the contract between himself and Day Hospital contained any specified sums or provisions for liquidated damages. This court, therefore, strikes paragraph four of the plaintiff's prayer for relief, requesting pre-and post-judgment interest.
Regarding the plaintiff's prayer for attorneys fees, this court notes that Connecticut adheres to the American rule, that "attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception." Young v. Vlahos, 103 Conn.App. 470, 479, 929 A.2d 362 (2007). There are few exceptions. For example, a specific contractual term may provide for the recovery of attorneys fees and costs; see, e.g., Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 245, 440 A.2d 306 (1982); or a statute may confer such rights. Finally, attorneys fees may be awarded as a component of punitive damages when "[the] evidence . . . reveal[s] a reckless indifference to the rights of others or an intentional and wanton violation of those rights." West Haven v. Hartford Ins. Co., 221 Conn. 149, 160, 602 A.2d 988 (1992). Attorneys fees are not available for the remaining count. The plaintiff has referred the court to no contractual term or statutes conferring the right to recover attorneys fees in the present case, nor has the plaintiff alleged reckless conduct by Day Kimball. Accordingly, the court strikes the plaintiff's prayer for attorneys fees.
Finally, Day Kimball argues that the plaintiff is not legally entitled to injunctive relief in the form of a court order "suspending the electronic exchange of medical records from Day Kimball . . . to Orthopedic Associates" because he has not alleged that he has suffered irreparable harm or that there is no adequate remedy at law. This court notes that "[a] party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . . A prayer for injunctive relief is addressed to the sound discretion of the court." (Internal quotation marks omitted.) Lydall v. Ruschmeyer, 282 Conn. 209, 237, 919 A.2d 421 (2007). "A mandatory injunction . . . is a court order commanding a party to perform an act . . . Relief by way of mandatory injunction is an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances . . . Ordinarily, an injunction will not lie where there is an adequate remedy at law . . . In sum, [m]andatory injunctions are . . . disfavored as a harsh remedy and are used only with caution and in compelling circumstances." (Citations omitted; internal quotation marks omitted.) Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 650, 854 A.2d 1066 (2004). Plaintiff has available to him monetary damages. Moreover, the plaintiff has failed to state a cause of action for any injunction remotely as broad as the injunction requested. The court strikes this overly broad request for an injunction.
For the foregoing reasons, this court grants the defendants' motion to strike counts one through eleven, and counts thirteen through sixteen. This court denies the motion as to count twelve. Additionally, this court strikes paragraphs three through six of the plaintiff's prayer for relief