Jacoby v. Brinckerhoff

• Decision Date: 10 August 1999
• Docket Number: (SC 16014)
• Court: Connecticut Supreme Court
• Parties: BRUCE JACOBY v. PAUL BRINCKERHOFF ET AL.

250 Conn. 86

735 A.2d 347

BRUCE JACOBY v. PAUL BRINCKERHOFF ET AL.

(SC 16014)

Supreme Court of Connecticut.

Argued June 1, 1999.

Officially released August 10, 1999.

Borden, Berdon, Norcott, Palmer and Peters, Js.

Paul J. Pacifico, for the appellant (plaintiff).

Gaileen A. Kaufman, with whom, on the brief, was Garie J. Mulcahey, for the appellee (defendant John Rhinehart).

Opinion

PETERS, J.

In this medical malpractice case, the underlying issue is the extent to which a psychiatrist should be held liable for malpractice to a person who is not his patient but the former spouse of his patient. In particular, we must decide whether, in the absence of a claim against him by the patient, a psychiatrist owes any duty to the patient's former spouse, to compensate him or her either for loss of consortium or for the direct injury to the marriage. We conclude, as did the trial court, that the former spouse cannot prevail on the allegations contained in his complaint in this case, and that the court properly rendered a judgment in favor of the psychiatrist. The plaintiff, Bruce Jacoby, filed an eight count complaint against the named defendant, Paul Brinckerhoff, a psychologist, and the defendant John Rhinehart, a psychiatrist.¹ Alleging that their treatment of his former spouse, Diane Jacoby, constituted a failure to render proper care, the plaintiff, in his third amended complaint, claimed a right to recover for: (1) loss of consortium; (2) breach of a contract of which the plaintiff was a third party beneficiary; (3) impairment of the marital relationship; and (4) breach of a direct contract to provide care to his spouse.²

The gravamen of the plaintiff's factual allegations was that both of the mental health professionals treating his former spouse knew or should have known that their recommended course of treatment and counseling would have an adverse effect on the plaintiff and his marriage. The plaintiff alleged that his former spouse suffered from bipolar disorder, which had been stabilized through the use of specified medication. Thereafter, he alleged, her mental condition deteriorated when Brinckerhoff and the defendant, having reached an alternative diagnosis, pursued a different course of treatment involving the use of different prescribed medication. That allegedly improper course of treatment led, according to the plaintiff, to the irretrievable breakdown of his marriage and the loss of maternal care for his children. His reputation allegedly was damaged as a result of a false report by his former spouse to the local police that he abused drugs and sexually abused his children. He also alleged that his former spouse is unwilling to pursue any claim for negligence or malpractice against the defendant. The trial court granted the defendant's motion to strike all the counts of the plaintiffs original complaint that were directed against the defendant. The court made a similar ruling with respect to the plaintiff's third amended complaint.Thereafter, the court granted the plaintiff's motion for judgment in accordance with its ruling on the motion to strike. This appeal followed.³

On appeal, the plaintiff contests the validity of the trial court's judgment only with respect to his claims of negligence and malpractice insofar as they allegedly give rise to a claim for loss of consortium and for direct injury to his marriage.⁴ We affirm the judgment of the trial court.

Our review of the judgment of the trial court is guided by well established principles. "In an appeal from a judgment granting a motion to strike, 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." Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 696, 694 A.2d 788 (1997); Waters v. Autuori, 236 Conn. 820, 825, 676 A.2d 357 (1996).

I LOSS OF CONSORTIUM

The plaintiff's first claim on appeal is that, in count five of his complaint, he has alleged a viable cause of action for loss of consortium even though his former spouse has refused to join in the action. He claims in his brief that her refusal to initiate or to participate in the filing of an action for negligence or malpractice against the defendant is a result of her deteriorating mental condition.⁵ Under these circumstances, the plaintiff argues that he is entitled to file suit for loss of consortium without joining it to a claim filed by her. He maintains that, because her conduct in declining to participate has made joinder impossible,⁶ joinder should be excused.

The trial court rejected the plaintiffs claim on the ground that a cause of action for loss of consortium cannot be maintained in the absence of a primary cause of action asserted by the injured spouse. Although Connecticut law, at least by way of dictum, supports the trial court's conclusion, the plaintiff urges us to follow case law in other jurisdictions that, he claims, would permit an entirely freestanding pursuit of a claim for loss of consortium whenever an injured spouse declines to cooperate to protect the other spouse against a loss of consortium. We agree with the trial court.

This court first recognized a common-law claim for loss of spousal consortium in Hopson v. St. Mary's Hospital, 176 Conn. 485, 487, 408 A.2d 260 (1979). Therein, we defined consortium "as encompassing the services of the [injured spouse], the financial support of the [injured spouse], and the variety of intangible relations which exist between spouses living together in marriage. Prosser, Torts (4th Ed. 1971) § 124, pp. 881-82. These intangible elements are generally described in terms of affection, society, companionship and sexual relations. Comment, `The Action for Loss of Consortium in New Mexico,' 2 N. Mex. L. Rev. 107, 108 (1972). These intangibles have also been defined as the constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage. Brown v. Kistleman, 177 Ind. 692, 98 N.E. 631 (1912); Lippman, `The Breakdown of Consortium,' 30 Colum. L. Rev. 651 (1930); Pound, `Individual Interests in the Domestic Relations,' 14 Mich. L. Rev. 177 (1916); Holbrook, `The Change in the Meaning of Consortium,' 22 Mich. L. Rev. 1 (1923)." (Internal quotation marks omitted.) Id. We recently reaffirmed the cause of action in precisely these terms. Mendillo v. Board of Education, 246 Conn. 456, 477, 717 A.2d 1177 (1998).

In Hopson, we considered the risk that enabling a spouse to recover for loss of consortium might lead to a multiplicity of legal claims arising out of a single act of negligence or intentional misconduct. We concluded that the risk would be minimized if "claims by spouses, whether for physical injuries or consortium losses, [were] joined in one action and tried before a single trier of fact." Hopson v. St. Mary's Hospital, supra, 176 Conn. 494. Although we did not hold that joinder is always a prerequisite to an action for loss of consortium, we stated, in dictum, that "the consortium claim would be barred when the suit brought by the injured spouse has been terminated by settlement or by an adverse judgment on the merits." Id.

Our dictum in Hopson is a roadblock to the plaintiff's claim for recovery in this case. We can discern no viable distinction between precluding a consortium claim when the injured spouse has settled with the alleged tortfeasor and precluding it when the injured spouse, as in this case, has declined altogether to sue the alleged tortfeasor. Our statement reflects the premise, which the plaintiff does not challenge, that an action for loss of consortium, although independent in form, is "derivative of the injured spouse's cause of action ...." Hopson v. St. Mary's Hospital, supra, 176 Conn. 494; Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 287, 627 A.2d 1288 (1993); Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 312, 524 A.2d 641 (1987); Ladd v. Douglas Trucking Co., 203 Conn. 187, 195, 523 A.2d 1301 (1987); Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 563-64, 562 A.2d 1100 (1989).

Although the noninjured spouse has a right to choose whether to bring or to forgo a derivative consortium claim; Mendillo v. Board of Education, supra, 246 Conn. 495; there is logical appeal to linking that right to an existing viable claim by the injured spouse. "In a growing number of jurisdictions a separate action for loss of consortium is not permitted, and instead joinder with the principal action on the physical injury is mandatory, in order to reduce the hazard of double recovery.... In some joinder is not mandatory but is `strongly encouraged.' " (Citations omitted.) 2 F. Harper, F. James & O. Gray, Torts (2d Ed. 1986) § 8.9, pp. 553-54 n.14.

The plaintiff nonetheless disputes the propriety of insistence on joinder under any and all circumstances. He relies on a number of cases in other jurisdictions, as well as a statement contained in the Restatement (Second) of Torts § 693 (2) (1965),⁷ for the proposition that joinder may be excused if intervening events have made it impossible. See, e.g., Kubian v. Alexian Bros. Medical Center, 272 Ill. App. 3d 246, 255-56, 651 N.E.2d 231, appeal denied, 163 Ill. 2d 560, 657 N.E.2d 623 (1995); Rosander v. Copco Steel & Engineering Co., 429 N.E.2d 990, 991 (Ind. App. 1982). He claims that he cannot be faulted for having failed to join his cause of action to one that his spouse has categorically declined to initiate. Even if we were persuaded that the absence of joinder might be excusable sometimes, we are not so persuaded in the present case.

It is inherent in the nature of a derivative claim that the scope of the claim is defined by the injury done to the principal. The party pursuing a derivative cause of action may have a claim for special damages arising out of...