2010 Ct. Sup. 18912, 50 CLR 689
No. DBD CV-10-6002725-SConnecticut Superior Court Judicial District of Danbury at Danbury
September 23, 2010
RULING ON MOTION TO STRIKE (#111.00)
MICHAEL G. MARONICH, Judge.
On June 17, 2010 the plaintiff filed the operative complaint in this matter in three counts. The first count sounds in negligence alleging that the defendant, dentist, who treated the plaintiff from March 1987 through March 2007, failed to exercise reasonable care by failing to diagnose that the plaintiff was suffering from tongue cancer. As a result the plaintiff suffered severe and painful personal injuries including stage II and stage III carcinoma of the tongue. Plaintiff apparently intended to file a second count but the text of this count appears to have been unintentionally omitted from the complaint. A third count sounding in civil conspiracy purports to incorporate paragraphs one through eight of the second count. The fourth count is based on lack of informed consent. On July 2, 2010 the defendant filed a motion to strike the third and fourth counts of the complaint as well as the prayer for relief seeking punitive damages and damages pursuant to the provisions of General Statute § 52-595.
“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). The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
AS TO THE THIRD COUNT:
The plaintiff’s third count sounds in civil conspiracy and is directed at the defendant, Liela Chahine, DMD (Chahine). The defendant moves to strike this count, asserting lack of legal sufficiency. The grounds for his motion to strike is that the claim CT Page 18913 is barred by the intracorporate conspiracy doctrine. “Employees of a corporation acting in the scope of their employment cannot conspire with one another or with the corporation that employs them; each acts for the corporation and the corporation cannot conspire with itself.” Day v. General Electric Credit Corp., 15 Conn.App. 677, 684, 546 A.2d 315 (1988), cert. denied, 209 Conn. 819, 551 A.2d 755 (1989). See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 770-71, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984). The doctrine only applies to employees “acting in the scope of their employment.” The plaintiff argues that the allegations of the revised complaint may fairly be read to support the conclusion that the defendant was not so acting. The problem, however, is that the revised complaint does not expressly state that the individual defendant was not acting in the scope of her employment. In addition to its other allegations, “[t]he plaintiff must also allege that [the defendants] acted other than in the normal course of their corporate duties.” Cole v. University of Hartford, 391 F.Sup. 888, 893 (D.Conn. 1975). For recent appellate authority to this effect, see General Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 313-14 (3d Cir. 2003); Leasehold Expense Recovery, Inc. v. Mothers Work, Inc., 331 F.3d 452, 463 (5th Cir. 2003); Jackson v. Columbus, 194 F.3d 737, 753 (6th Cir. 1999). The reason for this rule of pleading is that, while the intracorporate conspiracy doctrine is sometimes loosely referred to as a defense, it is actually part of the substantive law of conspiracy. Day v. General Electric Credit Corp., supra, 15 Conn.App. 684. The defendants’ motion to strike the third count is GRANTED.
AS TO THE FOURTH COUNT:
The plaintiff’s fourth count sounds in lack of informed consent and is directed at Chahine. As the basis for this count the plaintiff claims that the defendant failed to obtain the plaintiff’s informed consent prior to accepting her care to from another dentist, Henry J. Showah, DDS. It is the contention of the defendants that causes of action under the informed consent doctrine pertain to the risks or alternatives of a particular medical procedure or course of treatment. For this reason the defendants assert that the allegations of the plaintiff’s fourth count are legally insufficient. “Informed consent requires a physician to provide the patient with the information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy . . . In previous cases in CT Page 18914 which we have considered an alleged lack of informed consent, our inquiry has been confined to whether the physician has disclosed: (1) the nature of the procedure, (2) the risks and hazards of the procedure, (3) the alternatives to the procedure, and (4) the anticipated benefits of the procedure.” (Citation omitted; internal quotation marks omitted.) Sherwood v. Danbury Hospital, 278 Conn. 163, 180, 896 A.2d 777 (2006). The plaintiff provides no authority that informed consent is a prerequisite to one physician referring a patient to another physician. The defendants’ motion to strike the fourth count is GRANTED.
AS TO THE PRAYERS FOR RELIEF: Request for Punitive Damages: The defendant moves to strike the plaintiff’s request for punitive damages in her prayer for relief. “Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded.” Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). No surviving count in the plaintiff’s complaint supports the recovery of punitive damages. Defendants’ motion to strike the request for punitive damage is GRANTED.
Request for Damages pursuant to General Statute § 52-595: The statutory provision relied upon by the plaintiff is the codification of the common-law rule that fraudulent concealment is an avoidance of an affirmative defense of the statute of limitations. It gives rise to neither an independent cause of action nor an enhancement of damages. Defendants’ motion to strike the request for purported damage under the provisions of General Statute § 52-595 is GRANTED.
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