Diaz v. Griffin Health Services Corp.

Decision Date31 January 2017
Docket NumberX10CV156029965S
PartiesAnthony Diaz v. Griffin Health Services Corp. et al
CourtSuperior Court of Connecticut

Anthony Diaz

Griffin Health Services Corp. et al

No. X10CV156029965S

Superior Court of Connecticut, Judicial District of Waterbury, Waterbury, Complex Litigation Docket

January 31, 2017




The defendants Griffin Health Services Corporation and Griffin Hospital (Griffin) have moved to strike the entirety of the amended complaint (complaint) dated May 11, 2016 (entry #120). Briefly summarized, the complaint alleges that the plaintiff, an insulin-dependent diabetic patient at Griffin Hospital, along with a putative class of over 3, 100 patients, was injected with insulin from a multi-dose insulin pen intended for use on a single patient which may have been improperly used on other patients, did not learn about the practice until he received notice from Griffin in correspondence dated May 16, 2014, suffered emotional distress due to the potential that he was exposed to blood-borne pathogens which could cause infections such as hepatitis B (HBV), hepatitis C (HCV) or HIV, suffered a physical injury in that he went for subsequent blood testing and continues to suffer from emotional distress. The first count pleads medical negligence, the second count pleads common-law recklessness and the third court pleads negligent infliction of emotional distress. The complaint seeks class certification.

Griffin maintains that the complaint " fails to set forth any cognizable injury for which recovery in tort is possible" (entry #124, p. 1) and it asserts multiple grounds for striking the tort counts. It also asks the court to determine as a matter of law that there are no circumstances under which this action could meet certain requirements for class certification.

In deciding a motion to strike, Practice Book § 10-39, the court must examine the allegations of the complaint in the light most favorable to the plaintiff to determine the legal sufficiency of the causes of action from the pleaded facts, as well as the reasonable inferences that can be drawn from those facts. Violano v. Fernandez, 280 Conn. 310, 317-18, 907 A.2d 1188 (2006). Moreover, the " pleadings must be construed broadly and realistically, rather than narrowly and technically." Lawrence v. O and G Industries, Inc., 319 Conn. 641, 649, 126 A.3d 569 (2015). Finally, the court's role is not to decide whether the evidence will support the cause of action but only to determine whether the allegations are legally sufficient to state the cause of action. Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).


Griffin challenges the first two counts[1] on multiple grounds but the crux of its argument is that the complaint does not set forth any claim of cognizable harm because the conduct alleged to have caused harm was the notification letter it sent to the plaintiff and others (¶ 31), as a matter of public policy and otherwise sending such a letter is not negligent conduct and should be encouraged, and such conduct does not provide a basis for imposing liability for emotional distress damages in the absence of allegations of physical harm or actual exposure to blood-borne pathogens causally connected to its negligence.

The plaintiff counters that the conduct alleged to have caused harm was Griffin's improper use of the single patient multi-dose insulin pens on multiple patients between September 2008 and early May 2014 (¶ ¶ 23-29), its use of such device on the named plaintiff (¶ ¶ 13-15) and Griffin's negligent failure to engage in safe and proper practices in the administration of insulin to its patients using the multi-dose pens (¶ 49) resulting in the need for blood testing (¶ ¶ 32, 38), medical monitoring and treatment until such time as the patients can medically ascertain whether the wrongful conduct caused HBV, HCV or HIV infections and attendant emotional distress, anxiety and anguish (¶ ¶ 50-51). The plaintiff maintains that these allegations set forth a cognizable claim for medical negligence and that the harms alleged--blood testing, medical monitoring and attendant emotional distress--are not attenuated from the alleged negligent conduct, were reasonably foreseeable and causally connected. For the reasons stated below, the court agrees with the plaintiff's position and denies the motion to strike the first and second counts.

" Duty is a legal conclusion about relationships between individuals, made after the fact . . . [and] determined by the circumstances surrounding the conduct . . ." Jarmie v. Troncale, 306 Conn. 578, 590, 50 A.3rd 802 (2012). Medical malpractice claims are common-law negligence claims " procedurally circumscribed by statute." Greenwald v. Van Handel, 311 Conn. 370, 383, 88 A.3d 467 (2014). The duty of health care providers is defined by Connecticut's common law " as an ordinary duty to their patients not to harm them through negligent conduct and an affirmative duty to help them by providing appropriate care." Jarmie v. Troncale, supra, 306 Conn. at 592. Thus, " deviations from the appropriate standard of medical care . . . should be the central concern of medical practitioners." (Internal quotation marks omitted; internal citations omitted). Id., 607.

The first count states claims by a patient against the patient's health care provider. It alleges that Griffin violated its ordinary duty in the way in which it treated and cared for the plaintiff, an insulin-dependent diabetic, and other similarly situated patients. Contrary to Griffin's position, the first count does not allege that its negligent conduct was sending the notification letter. Rather, it alleges that Griffin had a duty to administer insulin injections to its diabetic patients pursuant to the applicable standard of care, it breached that duty when it misused the single patient multi-use insulin pens and the breach caused the patients to undergo blood testing, medical monitoring and treatment and to experience emotional distress, anguish and anxiety. The first count alleges a standard medical malpractice claim seeking damages for physical harm and emotional distress caused by the alleged breach of the standard of care and supported by a § 52-190a good faith certificate letter.

In light of this conclusion, there can be no question that " the normal expectations of the participants in the activity under review, " Id., 590, include " the physician's duty of undivided loyalty to the patient . . . and the patient's corresponding loyalty, trust and dependence on the physician's medical treatment and advice." (Internal quotation marks omitted; internal citations omitted.) Id., 606. It is reasonable to infer from the facts alleged here that the patient would expect the hospital not to misuse multi-dose insulin pens, that the hospital should expect that a patient would suffer physical harm and emotional distress from any such misuse and that both parties could expect compensation to be awarded if professional negligence and damages were proven.

Nonetheless, without citing any relevant authority to support this claim, Griffin argues that imposing liability on it is contrary to public policy because it would discourage healthcare providers from notifying patients " about potential problems" or issuing " broadscale alerts" and could open the door to increased litigation. These concerns are not relevant to the first and second counts, but see section II infra, because the negligent conduct is not the hospital's activity in sending the notification letter to its patients but rather the alleged negligent misuse of the insulin pens, proof of which is subject to specific common-law and statutory requirements regarding medical malpractice claims.

Griffin also focuses on the emotional distress damages alleged in paragraph 51 claiming that they are not proper as a matter of law in the absence of allegations of physical harm causally connected to its negligent conduct. In making this argument, Griffin overlooks the allegations that Griffin offered free blood testing to the affected patients and encouraged them to be tested (¶ 32), and that the named plaintiff had his blood drawn (¶ 38), a form of physical harm or present injury. Griffin also overlooks the allegations that patients received injections in an improper manner which may have exposed the patients to the transmission of blood-borne infections such as HBV, HCV and HIV, another form of physical harm or present injury.

Thus, contrary to Griffin's argument, the allegations suffice to allow this case to fall squarely within the rule of damages set forth in Petriello v. Kalman, 215 Conn. 377, 397-98, 576 A.2d 474 (1990), which held that " in a tort action, a plaintiff who has established a breach of duty that was a substantial factor in causing a present injury which has resulted in an increased risk of future harm is entitled to compensation to the extent that future harm is likely to occur." At this stage of the pleadings, the question is not whether the plaintiff can prove these damages but only whether a cognizable tort has been alleged.

Petriello is a case about damages, not causation.[2] In Petriello, the court adopted a modern rule of compensation for damages arising from the risk of future harm resulting from tortious conduct. The court held " that a plaintiff may recover for the fear of future medical treatment and disability, as distinguished from a recovery for the future disability itself, even if there is only a possibility that such future treatment or disability will take place. This rule of damages is based on the unremarkable proposition that a danger of future injury is a present fact and the jury [is] entitled to take into consideration the anxiety resulting therefrom." (Internal quotation marks omitted; citations omitted.) Goodmaster v. Houser, 225 Conn. 637, 645-46, 625 A.2d 1366 (1993). When a plaintiff claims emotional distress as an element of damages based...

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