Opinion
No. DBD CV05-4003064 S
May 24, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #121.00
FACTS
On May 24, 2005, the plaintiff, Salko Farm Stable, LLC, filed a complaint in seven counts against the defendants, Fairfield Equine Associates and its managing partner Mark R. Baus ("Baus"), a veterinarian. On July 29, 2005, the plaintiff filed a revised complaint alleging that the plaintiff is a farm, stable and riding center where horses are boarded and used for training both youth and adults to ride. It also is the owner of a seven-year-old gray gelding named Aspen. On April 1, 2003, the defendant Baus, who had a longstanding professional relationship with the Plaintiff, decided that Aspen required medical treatment and injected a compound drug known as betamethasone into Aspen's right front hoof. Aspen's condition thereafter worsened whereupon Baus offered to treat the horse at his hospital, Fairfield Equine Associates, without charge and the plaintiff agreed. Ultimately, Aspen's condition deteriorated to the point that Baus euthanized Aspen and amputated its legs for the purpose of sending them out to a laboratory for analysis. The plaintiff's claims derive from the defendants' acquisition of betamethasone and the use of the drug on its horse. More specifically, the plaintiff alleges the defendants acquired, kept and administered the drug in violation of the Federal Animal Medicinal Drug Use Clarification Act of 1994, Pub.L. No. 103-396, and other federal regulations.
On October 16, 2006, the defendants filed a motion for summary judgment relative to count seven of the plaintiff's complaint which alleges that such actions constitute a violation of the Connecticut Unfair Trade Practice Act (CUTPA), General Statutes § 42-110a et seq. The defendants have submitted a memorandum of law in support of their motion arguing that "the plaintiff has not maintained a viable cause of action under [CUTPA] . . ." On November 13, 2006, the plaintiff filed a memorandum of law in opposition with accompanying deposition testimony from Mark R. Baus and Susan Magoulas, as well as copies of invoices from the Wedgewood Pharmacy where the drug was purchased. The matter was heard on the short calendar on March 26, 2007. At that hearing, the plaintiff attempted to file an additional memorandum supplementing its original response to the defendants' memorandum of law. However, because the reply was not timely filed, the court did not consider the arguments therein.
DISCUSSION
"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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. (Internal quotation marks omitted.) Brown v. Soh, 280 Conn. 494, 500-01, 909 A.2d 43 (2006). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 757, 905 A.2d 623 (2006). "A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (Internal quotation marks omitted.) Anderson v. Schoenhorn, 89 Conn.App. 666, 670, 874 A.2d 798 (2005).
Before beginning an analysis of whether there exists a genuine issue of material fact between the parties as to the seventh count, the court notes that the defendants have focused on the argument that the plaintiff has failed to allege a viable cause of action. Such language is typically employed in a motion to strike. Therefore, the court must first determine whether a motion for summary judgment may be considered based on the language employed by the defendants in their motion.
Practice Book Section 10-39(a) sets forth in part: "Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof."
Our Supreme Court recently clarified the case law concerning whether a summary judgment motion may be used to challenge the legal sufficiency of a pleading in addition to a motion to strike. "With these authorities in mind, we conclude that the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading . . . If it is clear on the face of the complaint that it is legally insufficient and that an opportunity to amend it would not help the plaintiff, we can perceive no reason why the defendant should be prohibited from claiming that he is entitled to judgment as a matter of law and from invoking the only available procedure for raising such a claim after the pleadings are closed. See Practice Book § 10-7 (filing of answer constitutes waiver of right to file motion to strike complaint). It is incumbent on a plaintiff to allege some recognizable cause of action in his complaint . . . Thus, failure by the defendants to demur to any portion of the . . . complaint does not prevent them from claiming that the [plaintiff] had no cause of action and that a judgment [in favor of the defendants was] warranted . . . Moreover, this court repeatedly has recognized that the desire for judicial efficiency inherent in the summary judgment procedure would be frustrated if parties were forced to try a case where there was no real issue to be tried." (Citation omitted; internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 401-02, 876 A.2d 522 (2005). In that case, the Supreme Court also stated that "we will not reverse the trial court's ruling on a motion for summary judgment that was used to challenge the sufficiency of the complaint when it is clear that the motion was being used for that purpose and the nonmoving party, by failing to object to the procedure before the trial court, cannot demonstrate prejudice." Id., 402. At short calendar, the court raised the issue before both parties. While the plaintiff briefly addressed the issue in general at oral argument, it cited no case law in support of its position, nor did it explain how it would be prejudiced by the court's consideration of the motion. Moreover, nowhere in its memorandum of law did it object to or address the defendants' usage of the motion for summary judgment for this purpose. A court is "not required to review issues that have been improperly presented . . . through an inadequate brief." Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997). "Where a claim receives only cursory attention in the brief without substantive discussion, it is deemed to be abandoned." (Internal quotation marks omitted.) Golden v. Johnson Memorial Hospital, Inc., 66 Conn.App. 518, 538, 785 A.2d 234, cert. denied, 259 Conn. 902, 798 A.2d 990 (2001). Thus, the court deems it appropriate to consider the defendants' usage of the motion for this purpose.
Having determined that the court may entertain the motion for summary judgment, the court now turns to the defendants' argument that CUTPA claims are not appropriate for actions involving issues of veterinary medical malpractice. The plaintiff counters that CUTPA does apply to the present case because it is not alleging medical malpractice. Specifically, the plaintiff argues that its CUTPA claim is derived from the defendants' violation of federal law and regulations through their purchase, maintenance, sale and administration of a compound medication relative to plaintiff's horse, and that such allegations are sufficient to state a CUTPA claim.
Other counts of plaintiff's complaint allege common-law negligence, negligence per se, breach of implied contract, recklessness, fraudulent misrepresentation and conversion.
Our courts recognize "that the provision of medical services falls within CUTPA's definition of trade or commerce . . ." (Internal quotation marks omitted.) Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 32, 699 A.2d 964 (1997). "[A]lthough physicians and other health care providers are subject to CUTPA, they may be liable only for `unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of the entrepreneurial, commercial, or business aspect' of the practice of medicine." Janusauskas v. Fichman, 264 Conn. 796, 808, 826 A.2d 1066 (2003). "The practice of medicine may give rise to a CUTPA claim only when the actions at issue are chiefly concerned with the entrepreneurial aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the competence of and strategy employed by the . . . defendant." (Emphasis in original; internal quotation marks omitted.) Id., 809.
"[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. Accordingly, within this framework, [a court] must review the plaintiff's allegations of CUTPA violations and look to the underlying nature of the claim to determine whether it is really a medical malpractice claim recast as a CUTPA claim." (Emphasis added; internal quotation marks omitted.) Id.
Our statutes clearly establish that the treatment of an animal constitutes the practice of veterinary medicine. See General Statutes § 20-197. Our legislature has even codified the status of veterinarians as being in a class of individuals who can prescribe medication within the scope of their practice. See General Statutes § 20-14c.
General Statutes § 20-197 provides, in relevant part: "A person shall be construed to practice veterinary medicine . . . who holds himself out as being able to diagnose, administer biologics for, treat, operate or proscribe for, any animal or bird disease, pain, injury, deformity or physical condition, or who either offers or undertakes, by any means or methods, to diagnose, administer biologics for, treat, operate or prescribe for any animal or bird disease, pain, injury, deformity or physical condition."
General Statutes § 20-14c provides, in relevant part: "As used in this section and sections 20-14d to 20-14g, inclusive, and section 20-12d . . . (3) `Prescribing practitioner' means a . . . veterinarian licensed by the state of Connecticut and authorized to prescribe medication within the scope of such person's practice."
In the present case, the plaintiff alleges that the defendants administered betamethasone compound negligently and in violation of federal regulations and policy which aim to protect the public and animals from the dangers associated with compounded drugs. The plaintiff's allegations attempt to recast a veterinary malpractice claim as a CUTPA claim. Paragraphs 2-3 of the revised complaint allege that Baus is a veterinarian and managing partner of Fairfield Equine Associates and that they provide medical services to animals. Paragraph 4 talks about the professional relationship and trust between the plaintiff and the defendants. Paragraph 8 alleges that plaintiff's horse needed medical attention. Paragraph 13 alleges that plaintiff had agreed to transport the horse to the defendant hospital for treatment upon Baus' recommendation. Paragraph 46 indicates that the plaintiff delivered the horse to the defendants for the purpose of medical treatment. Paragraph 51 notes defendants' offer of treatment of the horse free of charge. Paragraph 53 alleges the defendants gave an implied promise to return the horse to health. In paragraph 56, the plaintiff specifically alleges that the defendants were in the trade or business of providing out-patient and in-patient health care to horses. There can be no question ft-on the underlying language of the seventh count of plaintiff's revised complaint that the plaintiff's claim surrounds those aspects of the defendants' medical treatment of Aspen. It clearly does not deal with the entrepreneurial aspects of the defendants' practice. Janusauskas v. Fichman, supra, 264 Conn. 796.
Though the plaintiff's revised complaint is broken down into seven counts, each count incorporates all the prior paragraphs contained in the complaint. For example, the seventh count incorporates paragraphs 1-54 and commences with 55 which includes all of the paragraphs contained in counts one through six before it. Those words italicized in the referenced paragraphs are done so for emphasis and are not found as such in the revised complaint.
Despite the language of the revised complaint, the plaintiff in its brief argues that this cannot be a case of medical malpractice as it has not alleged a violation of a standard of care. However, the court notes that paragraphs 18-21 of the revised complaint collectively refer to the professional relationship between the plaintiff and defendants, that the defendants owed plaintiff a duty to act with reasonable care with respect to the treatment of plaintiff's horse, and that they breached their duty of reasonable care. Such language elicits elements of a professional malpractice claim. To slightly change an old saying, if it walks like a horse, looks like a horse and neighs like a horse, it must be a horse.
Though not presented as an issue in its brief, at oral argument, plaintiff opined that a CUTPA claim should survive any challenge to its exclusion from a medical treatment setting because the treatment in this case involved an animal as opposed to a human being. In that an animal is a chattel or personal property, a malpractice claim could not be applicable to it and therefore a CUTPA claim could not be excluded under the reasoning set forth in Janusauskas. By so arguing, the plaintiff raises a question upon which the court finds little appellate authority or guidance.
In researching the issue, the court notes that there is some case law which specifically describes issues or cases involving veterinary medical malpractice. Liotta v. Segur, Superior Court, judicial district of Danbury, Docket No. CV02-0347756S (March 15, 2004, Nadeau, J.), fn. 3; Savo v. Kazlauska, Superior Court, judicial district of Waterbury, Docket No. CV95-0127443S (February 5, 1999, Dewey, J.); George v. Leopold, Superior Court, judicial district of Danbury, Docket No. 314997 (October 31, 1996, Moraghan, J.) (18 Conn. L. Rptr. 180). Another recent case noted "allegations of professional, medical or legal negligence or malpractice cannot support a CUTPA claim." OCI Chemical Corp. v. Aon Corp., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV05-4003935S (August 31, 2006, Jennings, J.). The court also noted that `[a]lthough there is no appellate precedent extending the reasoning of the Haynes and Beverly Hills Concepts cases to professions other than medicine and law, superior courts have extended that reasoning to other licensed professions, including insurance agency and brokerage." Id. Based on the above, this court sees no impediment to extending the reasoning of Haynes and Janusauskas to this case. The underlying claim in count seven of the revised complaint is one of veterinary medical malpractice. A veterinarian is a licensed professional authorized by statute to dispense medication for the treatment of animals. Further, they have specialized training and knowledge in their field as do physicians and other medical (and non-medical) professionals.
The distinction between negligence and malpractice in determining whether CUTPA applies in certain circumstances is noteworthy as plaintiff argues that (part of) its complaint simply alleges common-law negligence as opposed to professional malpractice. The language of OCI Chemical Corp. v. Aon Corporation, makes clear that where the issue is a breach of a standard of care, and a claim of a CUTPA violation is made, it matters not whether the CUTPA claim relates to allegations of simple negligence or of professional malpractice. In the instant case, whether it is simple negligence or professional malpractice makes little difference as count seven of the revised complaint, real broadly, alleges conduct related to the provision of medical treatment by the defendants. "Negligent acts, in general, are not inherently immoral, unethical, oppressive or unscrupulous." (Citations omitted.) George v. Leopold, supra. 18 Conn. L. Rptr. 180.
While plaintiff correctly points out that animals are personal property, their treatment by veterinarians is sufficiently analogous to the treatment of humans by physicians to warrant following the reasoning of Haynes and Janusauskas in disallowing CUTPA claims where such treatment invokes the judgment and strategy of the provider of medical treatment. The only effective difference between malpractice actions involving veterinarians and physicians is, that as to the measure of damages where an animal has been treated, there would be no component for an award for pain and suffering. Because an animal is personal property, the value of the property lost or damaged would be the measure of damages.
For example, dogs are classified as personal property under General Statutes § 22-350. Horses are considered personal property for assessment purposes under General Statutes § 12-81 (68) and § 12-91.
Determining whether a certificate of good faith would be required under General Statutes § 52-190a for a "health care provider" as defined in General Statutes § 52-184b(a) in the context of a claim against a veterinarian is a decision left to another day.
The defendants' uses associated with betamethasone could theoretically be part of an entrepreneurial aspect of the defendants' business, for example, if the defendants were simply producers or distributers of the drug. The present case, however, is not about the defendants' role as entrepreneurs. The plaintiff alleges that Baus injected the drug into its horse. Thereafter, the horse's condition worsened to the point that it died. The underlying allegations of the complaint make clear that the issue in the seventh count is one of the negligent medical treatment of a horse. The allegation of negligence per se in the second count which is incorporated into the seventh count. or the theories of liability set forth in the other counts, do not transform the fundamental nature of the case. Put another way, whether the defendants obtained, maintained or administered betamethasone in violation of federal law or regulations does not alter the underlying nature of the claim against the defendants. To determine if there was such a violation would still require testimony from an expert within the field of veterinary medicine. The fact that the drug was administered by a veterinarian for the purpose of providing treatment, and that it was obtained and maintained to enable a veterinarian to do so when needed, is part of the practice of veterinary medicine. Such actions are not chiefly concerned with the entrepreneurial aspects of the defendants' business (such as solicitation of business and billing practices) but rather are directed toward competence and strategy in the treatment of animals. Janusauskas v. Fichman, supra, 264 Conn. 809.
Salko Farm Stable's additional allegations regarding euthanization and amputation also fail to allege an entrepreneurial act as they fall within the realm of treatment, competence and judgment.
CONCLUSION
The court finds that the seventh count of the revised complaint fails to set forth a viable cause of action. The court also finds that this defect could not be cured by repleading. Accordingly, the motion for summary judgment is an appropriate vehicle to address the allegations of that count. There is no genuine issue of material fact that the defendants' actions were part of the practice of veterinary medicine and were not part of the entrepreneurial aspects of running their business. The defendants, as health care providers, are not subject to CUTPA. The motion for summary judgment as to the seventh count of plaintiff's revised complaint is granted.
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