Opinion
No. HHB CV09 5013668
September 28, 2010
MEMORANDUM OF DECISION ON MOTION TO STRIKE
The plaintiff Tricia Sanford has brought a civil action against the defendants Wilfred Brown, M.D., and Aesthetic Surgery Associates, P.C. seeking damages for a poor outcome of breast reconstruction surgery following a bilateral mastectomy in October 2006. In the First Count, the plaintiff alleges that the defendants failed to obtain her informed consent to the procedure. In the Second Count, the plaintiff alleges that the defendants promised her a specific successful outcome of the breast reconstruction procedure and that they breached this contract by failing to deliver the specific successful outcome. The Third Count sounds in loss of consortium to David Sanford, the named plaintiff's husband.
The defendants move to strike the Second Count, on the grounds that a breach of contract claim cannot be based on a breach of the medical standard of care. While conceding this rubric as a general proposition, the plaintiff objects to the motion to strike on the ground that in this case the defendants promised a specific outcome, which is an exception to the general proposition that a medical negligence case cannot also be pleaded as a breach of contract case.
STANDARD FOR A MOTION TO STRIKE
In deciding a Motion to Strike, the court must read the allegations in the contested pleading in the light most favorable to the pleader. Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The purpose of a motion to strike is to contest the legal sufficiency of the allegations in the complaint and to challenge whether they state a claim upon which relief can be granted. Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998).
THE ALLEGATIONS IN THE COMPLAINT CT Page 19108
In consulting with the defendant Brown prior to her surgery, the plaintiff alleges the following:
¶ 24. [The plaintiff and the defendant] entered into an agreement wherein the plaintiff agreed to retain the services of the defendant for a bilateral TRAM flap autologous breast reconstruction based upon the defendant's specific assurances and representations that the plaintiff was a very suitable candidate for the procedure and that after the procedure the plaintiff's breasts would be a "perky C," that she would be perfectly symmetrical, that "everything will go well" and that her oblique muscles would take over and support her abdomen.
¶ 25. Following the surgery performed by the defendant, the plaintiff suffered from infections including MRSA, repeat hospitalizations, removal of abdominal wall mesh, extensive pain and suffering, and asymmetry to her breasts. She is not a "perky C" and was not "a very suitable candidate" for the procedure given her body habitus.
¶ 26. As a result of the defendant's breach of contract, the plaintiff has suffered damages including pain and suffering, repeat hospitalizations, additional medical treatment, prescription costs and the like, all to her further loss and detriment.
BREACH OF CONTRACT VS. MALPRACTICE
It is clear that in certain kinds of medical cases a plaintiff can maintain a breach of contract action. In Rosato v. Mascardo, 82 Conn.App. 396, 410-12 (2004), the Appellate Court held that the plaintiff-patient was entitled to attempt to prove to the jury that she had contracted with the defendant-doctor only for a breast lift, but had instead received a different procedure: a silicone breast implant. By the same token, our case law disfavors the cloaking of a malpractice action under breach of contract language. Rumbin v. Baez, 52 Conn.App. 487, 491-92 (1999). The trial court must look to the gravamen of the complaint to determine whether the underlying conduct of which the plaintiff complains is a failure to exercise the requisite standard of care; if so, the case sounds in medical negligence and not in breach of contract. See Barnes v. Schlein, 192 Conn. 732, 735-36 (1984).
Here a fair reading of the complaint, in its entirety, yields an interpretation that speaks more of negligence and tort damages than of breach of contract. The claim is that the defendant's decision to perform the chosen breast reconstruction procedure on the plaintiff given her body type conduct fell below the standard of care, and resulted in personal injury to the plaintiff.
The plaintiff alleges that the defendant failed to make good on a promise to give her breasts a specific look. It is this latter allegation that appears most unlike a malpractice allegation and most like a breach of contract claim. It is this type of statement — amounting to an allegation that the physician guaranteed a specific, successful result — that is most problematic. The legal literature recognizes that what the physician intends as a "therapeutic reassurance" can sometimes be taken as a promise of a specific result by the patient. See 43 A.L.R.3d 1221, 1225-6.
Also implicated in the construction of such a physician-patient interaction is the issue of public policy. Absent a very unusual circumstance, should the law ever permit a breach of contract lawsuit grounded on a physician's guarantee of a successful result, particularly when the patient has at her disposal well-founded body of law permitting recovery for medical malpractice. Is it reasonable to permit a construction that allows an encouraging or reassuring statement by a doctor to a patient to become actionable as a guarantee of a favorable outcome, subjecting the doctor to contract liability as well as potential malpractice liability? What of the orthopaedist who says to the frightened patient before setting the broken leg, "you'll be back playing baseball in no time," or the oncologist who says before chemotherapy, "you'll dance at your daughter's wedding?" Parsing each statement from doctor to patient is likely to further chill the already vanishing therapeutic dialogue so vital to effective patient care. See Jerome Groopman, How Doctors Think, 242-43 and 266-67 (Houghton Mifflin, New York, 2007).
To be sure, our case law does not prohibit a patient's breach of contract action in an appropriate circumstance. For example, the plaintiff relies on Camposano v. Claiborn, 2 Conn. Cir.Ct. 135, 196 A.2d 129 (1963), a trial court opinion, for the proposition that a patient may contract with a physician for a specific result and may maintain a breach of contract action if the promised result is not achieved. Leaving aside for a moment the fact that Camposano, from an inferior trial court, seems to stand by itself in the annals of Connecticut jurisprudence on the promise-of-a-successful-outcome issue, it is useful to consider the whole case if one is to rely upon it. While the holding in Camposano is that a patient may bring a breach of contract action for the failure of a physician to deliver a specific promised result, the remainder of the holding is that the physician is thereby liable for contract damages only. Id., 196 A.2d at 130. "[Although the] damages recoverable in malpractice are for personal injuries, including pain and suffering which naturally flow from the tortious act[, in] the contract action they are restricted to the payments made and to the expenditures for nurses and medicines or other damages that flow from the breach thereof." Id., citing Colvin v. Smith, 276 App.Div. 9, 92 N.Y.S.2d 794 (1949). In other words, the principal case upon which the plaintiff relies holds that contract damages are limited to the tort equivalent of economic damages only. And yet here the plaintiff claims the same types of damages in her breach of contract count as she claims in her tort count.
CONCLUSION
The plaintiff's complaint, read in the light most favorable to the plaintiff, reveals that the gravamen of her complaint is that the physician failed to properly diagnose and treat her condition, and that the patient was not a proper candidate for the operative procedure undertaken by the physician. There were multiple complications that resulted in the need for further treatment, and the result was substantial pain and suffering.
This is a tort case, not a breach of contract case. The Motion to Strike the Second Count is granted.