Argued
November 16, 2017
Appeal
from the Superior Court, Judicial District of
Stamford-Norwalk, Povodator, J.
Page 470
[Copyrighted Material Omitted]
Page 471
Thomas
B. Noonan, Darien, for the appellant (plaintiff).
James
S. Newfield, Stamford, with whom, on the brief, was Diana M.
Carlino, for the appellee (defendant).
Gregory
J. Pepe, New Haven, filed a brief for the American Medical
Association et al. as amici curiae.
Jennifer
L. Cox and Jennifer A. Osowiecki, Hartford, filed a brief for
the Connecticut Hospital Association as amicus curiae.
Emily
B. Rock, Cynthia C. Bott, Bridgeport and Julie V. Pinette,
Stamford, filed a brief for the Connecticut Trial Lawyers
Association as amicus curiae.
Palmer,
McDonald, Robinson, DAuria, Mullins, Kahn and Vertefeuille,
Js.[*]
OPINION
PALMER,
J.
Page 472
[332
Conn. 327] The principal issue in this appeal is whether a
physician who mistakenly informs a patient that he does not
have a sexually transmitted disease (STD) may be held liable
in ordinary negligence to the patients exclusive sexual
partner for her resulting injuries when the physician knows
that the patient sought [332 Conn. 328] testing and treatment
for the express benefit of that partner. Under the
circumstances alleged, we conclude that the defendant,
Charles Cochran, a physician, owed a duty of care to the
plaintiff, identified by the pseudonym Jane Doe, even though
she was not his patient. Accordingly, we conclude that the
trial court improperly granted the defendants motion to
strike the plaintiffs one count complaint and reverse the
judgment of the trial court.
The
following facts, as set forth in the plaintiffs complaint
and construed in the manner most favorable to sustaining its
legal sufficiency; see, e.g., Lestorti v. DeLeo, 298
Conn. 466, 472, 4 A.3d 269 (2010); and procedural history are
relevant to our disposition of this appeal. In early 2013,
the plaintiff began dating her boyfriend, identified in this
action by the pseudonym John Smith. At all relevant times,
the plaintiff and Smith were involved in an exclusive
romantic relationship. At some point, the couple agreed that,
before their relationship became sexual, they would
individually seek testing for STDs. As of July, 2013, the
plaintiff had tested negative for and did not have any STDs.
At
that time, pursuant to his agreement with the plaintiff,
Smith visited his physician, the defendant, who is a licensed
medical doctor practicing in Norwalk. During Smiths visit,
the defendant asked Smith why he wanted to be tested again
for STDs, as the defendant had tested him just five months
earlier. Smith explained that he wanted to be tested again
for the protection and benefit of his new, exclusive
girlfriend, the plaintiff. The defendant then took a sample
of Smiths blood, arranged for it to be tested for STDs, and
subsequently reviewed the laboratory (lab) test results.
The lab
report that the defendant reviewed included a guide for
reading the tests results. The guide indicated that an HSV 2
IgG (herpes simplex virus type 2 specific antibody) result of
less than 0.9 is negative for the [332 Conn. 329]herpes
simplex virus type 2 (herpes), a result between 0.9 and 1.1
is equivocal, and a result greater than 1.1 means that the
sample tested positive for herpes. Smiths HSV 2 IgG test
result was 4.43, significantly above the threshold for a
positive herpes diagnosis.
The
defendant delegated to a member of his staff the task of
informing Smith of the
Page 473
results of his test. Even though the lab report clearly
demonstrated a positive herpes diagnosis, the staff member
incorrectly told Smith over the phone that his STD test
results had come back negative.
The
plaintiffs relationship with Smith subsequently became
sexual. Thereafter, the plaintiff began to experience herpes
outbreaks and was diagnosed with herpes. Upon learning of
this, Smith contacted the defendant to inquire further about
his test results. The defendant then informed Smith that he
actually had tested positive for herpes and apologized for
the error.
The
plaintiff brought a one count action against the defendant,
alleging that the defendant had been negligent in various
respects. The defendant moved to strike the complaint on the
basis that the plaintiffs claim sounded in medical
malpractice and, therefore, must fail for lack of any
physician-patient relationship between the plaintiff and the
defendant. The defendant argued in the alternative that, even
if the court construed the plaintiffs claim as sounding in
ordinary negligence, the plaintiff and the defendant were not
involved in any special relationship that would justify
extending a duty of care to her.
The
trial court granted the defendants motion to strike. The
court did not expressly resolve the issue of whether the
plaintiffs claim sounds in ordinary negligence or medical
malpractice, at once describing the plaintiff as
"seeking to extend medical malpractice liability of a
physician to the sexual partner of a patient" and
referring to the defendants "claimed negligence [332
Conn. 330] ... in reporting the test results." The
analysis undertaken by the trial court, however, implies that
it viewed the claim as sounding in ordinary negligence.
Specifically, the court concluded that the claim was governed
by our decision in Jarmie v. Troncale, 306 Conn.
578, 50 A.3d 802 (2012), and applied the framework that we
set out in that case for determining whether a nonpatient may
assert an ordinary negligence claim against a health care
provider. See id., at 591-99, 50 A.3d 802.
Ultimately, the trial court concluded the defendant did not
owe a duty of care to the plaintiff and, for that reason,
granted the defendants motion to strike. This appeal
followed.[1]
I
As an
initial matter, we must resolve a dispute between the parties
as to the gravamen of the plaintiffs complaint. As an
alternative ground for affirmance, the defendant contends on
appeal, as he did before the trial court, that the
plaintiffs one count complaint sounds in medical
malpractice. In support of this conclusion, the defendant
points to, among other things, the facts that (1) the
plaintiff alleged that "[the defendant] had an
obligation to perform the STD tests and [to] report the
results accurately to ... Smith according to accepted medical
practice and standards," (2) the plaintiff further
alleged that the defendants "breach of accepted medical
practice and standards" by failing to properly treat,
test, monitor, and advise Smith, was the cause of her
injuries, and (3) the plaintiffs counsel attached to the
complaint a certificate, pursuant to General Statutes §
52-190a (a), averring that there were grounds for a good
faith belief that the defendant had committed "medical
negligence" in the "care or treatment" of
Smith. Because a medical malpractice claim that fails to
allege a physician-patient relationship [332 Conn. 331]
between a plaintiff
Page 474
and a defendant is legally insufficient; Jarmie v.
Troncale, supra, 306 Conn. at 588-89, 50 A.3d 802;
and because it is undisputed that the plaintiff never was a
patient of the defendant, the defendant contends that the
trial court properly struck the complaint.
The
plaintiff responds that, although she attached a certificate
of good faith pursuant to § 52-190a (a) out of an abundance
of caution, her complaint alleges ordinary, common-law
negligence rather than medical malpractice. She notes that
the single count complaint is titled simply
"negligence," and it alleges that the plaintiffs
"injuries were the result of the negligence and
carelessness of the [defendant] ... in [that he failed] to
properly advise ... Smith of his STD test results ...."
At no point, moreover, does the complaint use the term
"medical malpractice."
A
We
begin our analysis by reiterating that, although the better
practice may be to include a separate count of the complaint
for each distinct theory of liability, there is no such
requirement. Practice Book § 10-26 provides that,
"[w]here separate and distinct causes of action, as
distinguished from separate and distinct claims for relief
founded on the same cause of action or transaction, are
joined, the statement of the second shall be prefaced by the
words Second Count, and so on for the others ...."
(Emphasis omitted.) In construing an earlier version of this
rule of practice, this court explained that it has
"uniformly approved the use of a single count to set
forth the basis of a plaintiffs claims for relief [when]
they grow out of a single occurrence or transaction or
closely related occurrences or transactions, and it does not
matter that the claims for relief do not have the same legal
basis. It is only when the causes of action, that is, the
groups of facts [on] which the plaintiff bases his claims for
relief, are separate [332 Conn. 332] and distinct that
separate counts are necessary or indeed ordinarily
desirable." (Footnote omitted.) Veits v.
Hartford, 134 Conn. 428, 438-39, 58 A.2d 389 (1948).
That remains the rule in this state, and it has been applied
with respect to a single count complaint alleging different
theories of negligence. See Wheeler v. Beachcroft,
LLC, 320 Conn. 146, 160, 129 A.3d 677 (2016)
("[e]ven though a single group of facts may give rise to
rights for several different kinds of relief, it is still a
single cause of action" [internal quotation marks
omitted] ); Beaudoin v. Town Oil Co., 207 Conn. 575,
588, 542 A.2d 1124 (1988) (restating rule as articulated in
Veits ); Baldwin v. Jablecki, 52 Conn.App.
379, 382, 726 A.2d 1164 (1999) (statutory and common-law
negligence may be pleaded in single count). Indeed, in
Jarmie, on which both parties rely, we treated the
single count complaint as alleging both medical malpractice
and common-law negligence when the pleadings were
substantially similar to those at issue here. See Jarmie
v. Troncale, supra, 306 Conn. at 583-86, 50 A.3d 802;
cf. Byrne v. Avery Center for Obstetrics & Gynecology,
P.C., 314 Conn. 433, 463, 102 A.3d 32 (2014) (reference
to violation of statutory duty did not transform count of
complaint alleging common-law negligence into statutory
claim).[2]
Accordingly,
we may assume, for the sake of argument, that the defendant
is correct that the complaint reasonably can be read to
allege that he committed professional malpractice by failing
to follow accepted medical standards in his advising,
Page 475
treatment, and ongoing testing and monitoring of Smith. The
question that we must resolve is simply whether the complaint
also alleges that the defendant committed ordinary common-law
[332 Conn. 333] negligence by permitting or instructing his
office staff to give Smith the wrong test
results.[3]
B
The
following well established principles guide our analysis.
First, "[b]ecause a motion to strike challenges the
legal sufficiency of a pleading and, consequently, requires
no factual findings by the trial court, our review of the
courts ruling ... is plenary.... We take 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, we note
that [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
defendants motion to strike, all well-pleaded facts and
those facts necessarily implied from the allegations are
taken as admitted." (Internal quotation marks omitted.)
Geysen v. Securitas Security Services USA, Inc., 322
Conn. 385, 398, 142 A.3d 227 (2016).
"In
Connecticut, we long have eschewed the notion that pleadings
should be read in a hypertechnical manner. Rather, [t]he
modern trend, which is followed in Connecticut, is to
construe pleadings broadly and realistically, rather than
narrowly and technically.... [T]he complaint must be read in
its entirety in such a way as to give effect to the pleading
with reference to the general theory [on] which it proceeded,
and do substantial justice between the parties.... Our
reading [332 Conn. 334] of pleadings in a manner that
advances substantial justice means that a pleading must be
construed reasonably, to contain all that it fairly means,
but carries with it the related proposition that it must not
be contorted in such a way so as to strain the bounds of
rational comprehension." (Citation omitted; internal
quotation marks omitted.) ATC Partnership v.
Windham, 268 Conn. 463, 466 n.4, 845 A.2d 389 (2004).
Second,
our courts have long recognized that a health care provider
may commit ordinary negligence, as opposed to medical
malpractice, in the course of treating a patient or providing
medical services. See, e.g., Multari v. Yale New Haven
Hospital, Inc., 145 Conn.App. 253, 260, 75 A.3d 733
(2013) ("The plaintiff has not alleged medical
malpractice ... but simply ordinary negligence against an
entity that happens to be a medical provider. The fact that
the defendant is a medical provider, does not, by itself,
preclude a finding that the plaintiffs action sounds in
ordinary negligence."); Badrigian v. Elmcrest
Psychiatric Institute, Inc., 6 Conn.App. 383, 385-86,
505 A.2d 741 (1986) (claim that defendant failed to supervise
psychiatric patients in crossing highway sounded in ordinary
negligence); see also Jarmie v. Troncale, supra, 306
Conn. at 593 and n.5, 50 A.3d 802 (leaving open possibility
of third-party negligence claims against health care
providers).
Page 476
To
determine whether a claim against a health care provider
sounds in ordinary negligence rather than (or in addition to)
medical malpractice, we must "review closely the
circumstances under which the alleged negligence occurred.
[P]rofessional negligence or malpractice ... [is] defined as
the failure of one rendering professional services to
exercise that degree of skill and learning commonly applied
under all the circumstances in the community by the average
prudent reputable member of the profession with the result of
injury, loss, or damage to the recipient of those
services.... [332 Conn. 335] [M]alpractice presupposes some
improper conduct in the treatment or operative skill [or] ...
the failure to exercise requisite medical skill ...."
(Citations omitted; emphasis omitted; internal quotation
marks omitted.) Gold v. Greenwich Hospital Assn.,
262 Conn. 248, 254, 811 A.2d 1266 (2002). "[T]o prevail
in a medical malpractice action, the plaintiff must prove (1)
the requisite standard of care for treatment, (2) a deviation
from that standard of care, and (3) a causal connection
between the deviation and the claimed injury.... Generally,
expert testimony is required to establish both the standard
of care to which the defendant is held and the breach of that
standard." (Internal quotation marks omitted.)
Id., at 254-55, 811 A.2d 1266. Accordingly, a claim
sounds in medical malpractice when "(1) the defendants
are sued in their capacities as medical professionals, (2)
the alleged negligence is of a specialized medical nature
that arises out of the medical professional-patient
relationship, and (3) the alleged negligence is substantially
related to medical diagnosis or treatment and involved the
exercise of medical judgment." (Internal quotation marks
omitted.) Id., at 254, 811 A.2d 1266. In connection
with an ordinary negligence claim, by contrast, the
defendants conduct is judged against the standard of
"what a reasonable person would have done under the
circumstances ...." Considine v. Waterbury, 279
Conn. 830, 859, 905 A.2d 70 (2006).
C
With
these principles in mind, we consider the plaintiffs
complaint. The relevant allegations of the complaint indicate
that the defendant reviewed Smiths test results, notified a
staff member of those results, and delegated to the staff
member the task of informing Smith of the results. The
complaint further alleges that the lab report contained a
guide that made clear that Smith had tested positive for
herpes. In addition, the complaint alleges that, although the
test results were [332 Conn. 336] positive, the staff member
informed Smith that his results were negative. Finally, the
plaintiff alleges that the defendants negligence in failing
to accurately advise Smith of his positive test results
caused Smith to infect the plaintiff with herpes.
These
allegations are consistent with two distinct theories of
negligence. First, the defendant could have misread Smiths
lab report and incorrectly concluded that the results were
negative. Second, it is possible that the defendant
interpreted the report correctly but that either the
defendant misinformed his staff member that the results were
negative or the staff member misinformed Smith. In other
words, the alleged error could have occurred either in the
initial interpretation of the report or in the inaccurate
communication of the results, via the staff member, to Smith.
See 2 Restatement (Second), Torts § 311 (2), p. 106 (1965)
(negligence may consist of failure to exercise reasonable
care in ascertaining accuracy of information or in manner in
which information is communicated).
Page 477
In
either case, we agree with the plaintiff that her allegations
reasonably can be understood to sound in ordinary negligence.
It is true that the alleged error transpired in a medical
setting and that it arose as a result of a medical diagnosis
in the context of an ongoing physician-patient relationship.
There are at least two reasons, however, why we nevertheless
conclude that this aspect of the complaint need not be read
to sound in medical malpractice.
First,
the alleged error is not one involving professional medical
judgment or skill. If the defendant misread Smiths lab
result, then he failed to perform what was, in essence, a
simple, ministerial task. The index to the report states that
a result greater than 1.1 indicates a positive test, and the
report states that Smiths result was 4.43. No advanced
medical training was necessary [332 Conn. 337] to determine
that Smith had tested positive for herpes; elementary reading
and arithmetic skills should have been sufficient. Indeed,
laypeople routinely perform comparable tasks, such as reading
and interpreting meat thermometers, oil dipsticks, pool and
spa test strips, and insulin tests.
Of
course, the same conclusion holds to an even greater extent
if the genesis of the error was that the defendant simply
told his staff member the wrong test result or the staff
member relayed the wrong result to Smith. That sort of
careless miscommunication could occur in any setting and has
nothing to do with the exercise of professional medical
judgment or skill. Indeed, the very fact that the defendant
delegated the task to a staff member, who presumably was not
a medical doctor, points to the nontechnical nature of the
communication.
Second,
regardless of whether the alleged error arose from a
misreading or a miscommunication, proving that it constituted
negligence would not require expert medical testimony or the
establishment of a professional standard of care. A jury will
not need expert testimony to determine whether the
defendants staff was negligent in leading Smith to believe
that he was free of STDs when the defendant knew, or should
have known, that Smith had tested positive for herpes, a
contagious STD, and intended to engage in sexual activity.
Such a determination is well within the ken of a lay
person.[4]
[332
Conn. 338] Accordingly, we conclude that, as in
Jarmie, the plaintiff in this case pleaded a cause
of action sounding in ordinary negligence. We therefore turn
our attention to the plaintiffs claim that the defendant, in
informing Smith of his test results, owed a common-law duty
of care not only to Smith but also to the plaintiff, a
nonpatient.
II
Having
concluded that the plaintiffs claim sounds in ordinary
negligence, we now must determine whether, under the
circumstances presented in this case, a physician owes a duty
of care to an identifiable
Page 478
third party[5] who is not a patient. We conclude that
a physician does owe such a duty.
A
We
begin by setting forth the elements of a cause of action in
ordinary negligence. "The essential elements of a cause
of action in negligence are well established: duty; breach of
that duty; causation; and actual injury.... Contained within
the first element, duty, there are two distinct
considerations.... First, it is necessary to determine the
existence of a duty, and then, if one is found, it is
necessary to evaluate the scope of that duty.... The
existence of a duty is a question of law and only if such a
duty is found to exist does the trier of fact then determine
whether the [alleged tortfeasor] violated that duty in the
particular situation at hand." (Internal quotation marks
omitted.) Jarmie v. Troncale, supra, 306
Conn. at 589, 50 A.3d 802.
[332
Conn. 339]"Although it has been said that no universal
test for [duty] ever has been formulated ... our threshold
inquiry has always been whether the specific harm alleged by
the plaintiff was foreseeable to the defendant. The ultimate
test of the existence of the duty to use care is found in the
foreseeability that harm may result if it is not
exercised.... By that is not meant that one charged with
negligence must be found actually to have foreseen the
probability of harm or that the particular injury [that]
resulted was foreseeable, but the test is, would the ordinary
[person] in the [alleged tortfeasors] position, knowing what
he knew or should have known, anticipate that harm of the
general nature of that suffered was likely to result ....
"A
simple conclusion that the harm to the plaintiff was
foreseeable, however, cannot by itself mandate a
determination that a legal duty exists. Many harms are quite
literally foreseeable, yet for pragmatic reasons, no recovery
is allowed.... A further inquiry must be made, for we
recognize that duty is not sacrosanct in itself ... but is
only an expression of the sum total of those considerations
of policy [that] lead the law to say that the plaintiff is
entitled to protection.... The final step in the duty
inquiry, then, is to make a determination of the fundamental
policy of the law, as to whether the defendants
responsibility should extend to such results." (Internal
quotation marks omitted.) Id., at 590, 113 A.3d 932.
The
default assumption of the common law, then, is that one owes
a duty to exercise due care in ones affirmative conduct with
respect to all people, insofar as ones negligent actions may
foreseeably harm them. 3 F. Harper et al., Harper, James and
Gray on Torts (3d Ed. 2007) § 18.6, p. 862. Under specific
circumstances, however, the law, for reasons of public
policy, places additional restrictions on the class of people
to whom a duty of care is owed. See, e.g., id., §
18.3, p. 781. In most instances, for example, a physicians
liability for [332 Conn. 340] the negligent care and
treatment of a patient does not extend to nonpatient third
parties who have been foreseeably injured by that negligence.
Id., § 18.5A, p. 852; see also Jarmie v.
Troncale, supra, 306 Conn. at 592-93, 50 A.3d 802.
But see
Page 479
Squeo v. Norwalk Hospital Assn., 316 Conn. 558, 568,
113 A.3d 932 (2015) (recognizing limited cause of action for
bystander emotional distress resulting from medical
malpractice); Jarmie v. Troncale, supra, at
593 n.5, 50 A.3d 802 (declining to endorse per se rule
barring third-party claims against health care providers).
The present case requires us to further clarify the scope of
this exception to the general duty rule.
B
With
these principles in mind, we now turn our attention to the
central question posed by the present appeal, namely, whether
a health care provider who negligently misinforms a patient
that he does not have an STD owes a duty of care to an
identifiable third party who foreseeably[6] contracts the STD as
a result of the providers negligence. The defendant contends
that various public policy considerations counsel against
recognition of such a duty. Most notably, because a patient
such as Smith could have been or become intimate with an
unlimited number of romantic partners, there is no meaningful
way to ...