Doe v. Cochran, 071619 CTSC, SC 19879

Docket Nº:SC 19879
Opinion Judge:PALMER, J.
Attorney:Thomas B. Noonan, for the appellant (plaintiff). James S. Newfield, with whom, on the brief, was Diana M. Carlino, for the appellee (defendant). Gregory J. Pepe filed a brief for the American Medical Association et al. as amici curiae. Jennifer L. Cox and Jennifer A. Osowiecki filed a brief for t...
Judge Panel:Palmer, McDonald, Robinson, D'Auria, Mullins, Kahn and Vertefeuille, Js. In this opinion D'AURIA, MULLINS and VERTE-FEUILLE, Js., concurred. ROBINSON, C. J., with whom McDONALD and KAHN, J., join, dissenting.
Case Date:July 16, 2019
Court:Supreme Court of Connecticut




No. SC 19879

Supreme Court of Connecticut

July 16, 2019

Argued November 16, 2017

Procedural History

Action to recover damages for personal injuries sustained as a result of the defendant's alleged negligence, and other relief, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the court, Povodator, J., granted the defendant's motion to strike; thereafter, the court granted the defendant's motion for judgment and rendered judgment thereon, from which the plaintiff appealed. Reversed; further proceedings.

Thomas B. Noonan, for the appellant (plaintiff).

James S. Newfield, with whom, on the brief, was Diana M. Carlino, for the appellee (defendant).

Gregory J. Pepe filed a brief for the American Medical Association et al. as amici curiae.

Jennifer L. Cox and Jennifer A. Osowiecki filed a brief for the Connecticut Hospital Association as amicus curiae.

Emily B. Rock, Cynthia C. Bott and Julie V. Pinette filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

Palmer, McDonald, Robinson, D'Auria, Mullins, Kahn and Vertefeuille, Js. [*]



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 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 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 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 . . . 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., 591-99. 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


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 between a plaintiff and a defendant is legally insufficient; Jarmie v. Troncale, supra, 306 Conn. 588-89; 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.''


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 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...

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