Boris Gitelman v. Hughes Health and Rehabilitation, Inc. et al.
CV106013917S
????Decided: January 18, 2012
The present motions to strike arise in the context of a suit brought by the plaintiff, Boris Gitelman, against the defendants, Hughes Health and Rehabilitation, Inc. (nursing home) and William Pickering, a doctor at the nursing home. ? On March 21, 2011, the plaintiff filed a revised four-count complaint against the defendants that alleges that the defendants were negligent and reckless in the care of the plaintiff’s decedent while she was a patient at the nursing home. ? Specifically, the complaint alleges the following facts. ? On August 22, 2007, the plaintiff’s decedent was admitted as a patient and resident at the nursing home and continued to reside there until she died on May 28, 2008. ? At the time of her admission and thereafter, the defendants knew that the decedent was Russian speaking and suffered from several ailments, including ovarian cancer and dementia. ? The decedent’s condition deteriorated from May 24, 2008 to May 27, 2008. ? During that time, the decedent experienced vomiting and an elevated temperature of 101 degrees, and Pickering advised the nursing staff ?to just continue to monitor.?
According to the plaintiff, on May 27, 2008 at approximately 5:30 p.m. he arrived to see the decedent and found her ?unattended, listless, with labored breathing and a rapid pulse.? ? The plaintiff immediately called a nurse and asked her to page Pickering. ? The plaintiff was told that Pickering would arrive after he completed his rounds. ? At approximately 7:00 p.m., Pickering arrived and said to the plaintiff, ?Your mom is 83, what do you want me to do?? ? The plaintiff responded that he thought that she might have pneumonia and that he would like her to be treated. ? Pickering confirmed that it was likely pneumonia and ordered antibiotics and a chest x-ray on a non-emergent basis. ? The decedent never received the antibiotics and did not live long enough to undergo the chest x-ray, which was booked for the morning. ? On May 28, 2008 at 12:50 a.m., the decedent was pronounced dead having died from pneumonia.
In counts one and two, respectively, the plaintiff alleges claims against the nursing home and its employees for negligence and recklessness in the care of the plaintiff’s decedent in the days leading up to her death. ? In counts three and four, respectively, the plaintiff alleges claims against Pickering for negligence and recklessness in the care of the plaintiff’s decedent in the days leading up to her death.
On December 28, 2010 and March 25, 2011, respectively, the defendants filed motions to strike counts two and four of the revised complaint and paragraphs two and three of the prayer for relief, and memorandums in support. ? The defendants filed those motions to strike on nearly identical grounds.1??The defendants move to strike counts two and four and paragraphs two and three of the prayer for relief on the ground that the plaintiff has not alleged facts sufficient to support a claim that the defendants acted willfully or in reckless disregard for the decedent’s rights. ? On April 8, 2011, the plaintiff filed one objection to the defendants’ motions to strike.
STANDARD OF REVIEW
?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 takes] the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ? Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ? Moreover ? [w]hat is necessarily implied [in an allegation] need not be expressly alleged ? 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 ? Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.? ?(Internal quotation marks omitted.) ? Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252?53, 990 A.2d 206 (2010). ? Nevertheless, ?[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, 262 Conn. 498.
DISCUSSION
The defendants argue that counts two and four merely repeat the allegations of negligence set forth in counts one and three and fail to raise sufficient allegations in support of the plaintiff’s recklessness claim. ? Specifically, the defendants argue that the plaintiff’s allegations do not describe the type of extreme departure from the standard of care that is necessary to establish recklessness. ? The defendants conclude that the plaintiff therefore is not entitled to relief in the form of punitive damages pursuant to General Statutes ??19a?550(e). ? In response, the plaintiff argues that he is permitted to rely on allegations of negligence in support of a recklessness claim in a medical malpractice context if the facts establish that the defendant acted with knowledge of the risk of injury.
?A cause of action in recklessness may be sufficiently alleged upon the same facts that would support a cause of action in negligence provided the allegations are independently sufficient to support a cause of action in recklessness.? ? Bogazis v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV 03 0519859 (October 7, 2003, Robinson, J.) (35 Conn. L. Rptr. 597). ??In Craig v. Driscoll, 64 Conn.App. 699, 718?20, 781 A.2d 440, cert. denied, 268 Conn. 931 (2001), the Appellate Court reversed the granting of a motion to strike where the plaintiff repeated allegations contained in a count alleging negligence. ? The approach endorsed by the Appellate Court was not to focus on the claimed duplication, but rather to examine whether the facts alleged stated a cause of action for reckless conduct, regardless of whether they were also pleaded in a count alleging negligence ? The Appellate Court recognized that [t]he plaintiff may claim alternative relief, based upon an alternative construction of the cause of action.? ?(Citations omitted; ?internal quotation marks omitted.) ? Saindon v. Kellner, Superior Court, judicial district of Waterbury, Docket No. CV 01 0170558 (April 16, 2002, Hodgson, J.).
The question, therefore, is whether the plaintiff has alleged sufficient facts to rise to the level of recklessness. ??Recklessness entails something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ? Wanton misconduct is reckless misconduct ? It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ? [W]illful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent ? It is at least clear ? that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.? ?(Internal quotation marks omitted.) ?Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 350 n.11, 885 A.2d 734 (2005).
In the present case, the claims for recklessness in counts two and four incorporate by reference the claim for negligence in the first count of the revised complaint. ? The first count alleges that at the time of her admission and thereafter, the defendants knew that the decedent was ?Russian speaking, suffered from left leg deep vein thrombrosis, ovarian cancer and dementia.? ? Count one further alleges that the defendants knew of the decedent’s deteriorating condition from May 24, 2008 to May 27, 2008 and that she likely suffered from pneumonia, but the defendants did not provide immediate medical care. ? Rather, the plaintiff alleges that the nurses did not notify Pickering when the decedent’s temperature spiked on at least three occasions after Pickering advised the nursing staff ?to just continue to monitor?; ?the decedent never received the antibiotics ordered by Pickering; ?Pickering prioritized his rounds over the life of the decedent; ?Pickering did not book a chest x-ray until the morning; ?and Pickering said to the plaintiff, ?Your mom is 83, what do you want me to do??
The defendants’ course of conduct described in the allegations is ?more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.? ? Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 350. ? In Sandler v. Mercy Community Health, Superior Court, judicial district of Hartford, Docket No. CV 09 6005240 (December 6, 2010, Wagner, J.T.R.), the court denied the defendant health care facility’s motion to strike because ?[t]he defendant’s alleged knowledge [of the decedent’s increased fall risk], coupled with the failure to implement appropriate protocols, could rise to more than ? thoughtlessness ? Instead, it might demonstrate a conscious choice of a course of action with knowledge of facts which would disclose this danger to any reasonable man.? ?(Internal quotation marks omitted.) ? Here, the allegations support a cause of action for recklessness because the defendants made a conscious choice to disregard a substantial risk of harm to the plaintiff, namely death, by choosing not to provide the decedent with immediate medical care even though they knew her condition was rapidly deteriorating in the days leading up to her death.
For the foregoing reasons, the motions to strike are DENIED as to counts two and four of the revised complaint and paragraphs two and three of the prayer for relief.
Domnarski, J.
FOOTNOTES
FN1.?The nursing home and Pickering filed separate motions to strike (Nos. 114 and 118) on nearly identical grounds: ?that the plaintiff has alleged insufficient facts to support a claim of willful and reckless conduct because the plaintiff relies on the factual allegations of negligence in support of the recklessness claim, and the plaintiff has not alleged a conscious choice of a course of conduct. ? Each defendant moves to strike the prayers for relief seeking punitive damages for the same reasons. ? The motions will be considered together in this memorandum..??FN1.?The nursing home and Pickering filed separate motions to strike (Nos. 114 and 118) on nearly identical grounds: ?that the plaintiff has alleged insufficient facts to support a claim of willful and reckless conduct because the plaintiff relies on the factual allegations of negligence in support of the recklessness claim, and the plaintiff has not alleged a conscious choice of a course of conduct. ? Each defendant moves to strike the prayers for relief seeking punitive damages for the same reasons. ? The motions will be considered together in this memorandum.
Domnarski, Edward S., J.