Doe v. Cochran

         Argued November 16, 2017

         Appeal from the Superior Court, Judicial District of Stamford-Norwalk, Povodator, J.

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         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, D’Auria, Mullins, Kahn and Vertefeuille, Js.^[*]

          OPINION

         PALMER, J.

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         [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 patient’s 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 defendant’s motion to strike the plaintiff’s one count complaint and reverse the judgment of the trial court.

         The following facts, as set forth in the plaintiff’s 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 Smith’s 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 Smith’s 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 test’s 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. Smith’s 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

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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 plaintiff’s 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 plaintiff’s 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 plaintiff’s 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 defendant’s motion to strike. The court did not expressly resolve the issue of whether the plaintiff’s 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 defendant’s "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 defendant’s 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 plaintiff’s complaint. As an alternative ground for affirmance, the defendant contends on appeal, as he did before the trial court, that the plaintiff’s 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 defendant’s "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 plaintiff’s 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

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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 plaintiff’s "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 plaintiff’s 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,

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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 court’s 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 defendant’s 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 plaintiff’s 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).

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         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 defendant’s 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 plaintiff’s complaint. The relevant allegations of the complaint indicate that the defendant reviewed Smith’s 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 defendant’s 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 Smith’s 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).

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          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 Smith’s 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 Smith’s 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 defendant’s 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 plaintiff’s 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 plaintiff’s 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

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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 tortfeasor’s] 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 defendant’s 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 one’s affirmative conduct with respect to all people, insofar as one’s 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 physician’s 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

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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 provider’s 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 ...