Vodovskaia-Scandura v. Hartford Headache Center, LLC ( 2019 )

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APPENDIX
NAILIA VODOVSKAIA-SCANDURA v. HARTFORD
HEADACHE CENTER, LLC, ET AL.*
Superior Court, Judicial District of Hartford
File No. CV-XX-XXXXXXX-S
Memorandum filed October 31, 2017
Proceedings
Memorandum of decision on defendants’ motion for
summary judgment. Motion granted in part.
A. Paul Spinella, for the plaintiff.
Steven C. Rickman, Hugh W. Cuthbertson and Cris-
tina Salamone, for the defendants.
Opinion
BRIGHT, J.
I
INTRODUCTION
This action arises out of the plaintiff’s employment
with the defendant Hartford Headache Center, LLC
(LLC). The defendant Tanya Bilchik is the sole member
of the LLC. The plaintiff’s second amended complaint
dated April 29, 2015, alleged twelve causes of action
related to how the plaintiff was treated while employed
by the LLC. The defendants have moved for summary
judgment as to all twelve counts. The LLC also seeks
summary judgment on its six count counterclaim, which
alleges that the plaintiff converted and stole records
belonging to the LLC, including certain confidential
patient records. In response, the plaintiff concedes that
judgment should enter for the defendants on ten of the
twelve counts of her complaint. She argues, however,
that there are genuine issues of material fact as to her
intentional infliction of emotional distress claim (ninth
count) and her negligence claim (eleventh count). As
to the counterclaim, the plaintiff does not deny taking
the records in question, but argues that the LLC’s claims
are time barred. Consequently, the plaintiff asks that
summary judgment enter in her favor on all six counts
of the counterclaim.
The bases for the intentional infliction of emotional
distress claim, as pled in the second amended com-
plaint, are that the defendants misrepresented to others
that the plaintiff had engaged in improper conduct and
a lack of integrity in the performance of her professional
duties; the defendants solicited false complaints about
the plaintiff from patients and included those falsities
in patient medical records and charts; and the defen-
dants, in an effort to distort the plaintiff’s professional
achievements, omitted materials from her personal file
that reflected favorably on her performance as a physi-
cian. In their motion for summary judgment, the defen-
dants argue that none of these allegations, even if true,
are sufficiently extreme or outrageous to support a
claim of intentional infliction of emotional distress.
The basis for the plaintiff’s negligence claim is her
allegation that the defendants refused to allow the plain-
tiff to leave work to see a doctor for abdominal pain
she was experiencing. She claims that as a result of the
defendants’ conduct, her treatment was delayed, and
as a result of the delay she suffered complications,
including infertility. The defendants argue that they
owed the plaintiff no duty; they, in fact, did tell the
plaintiff to leave work and see a doctor when she com-
plained of the pain; and that there is no competent
evidence that any delay in treatment caused the harm
she is claiming.
Following argument on the defendants’ motion for
summary judgment, the plaintiff filed a request to
amend her complaint. Attached to her request was her
proposed fourth amended revised complaint.1 The pro-
posed amended revised complaint is limited to just the
intentional infliction of emotional distress (first count)
and negligence (second count) claims. It, thus, removes
the other claims as to which the plaintiff agreed that
summary judgment could enter. The proposed amended
revised complaint also adds allegations of mistreat-
ment, primarily in support of the plaintiff’s claim of
intentional infliction of emotional distress. In particular,
the proposed revisions allege that the defendants’ office
manager, Denise McGrath, created a hostile work envi-
ronment by intimidation, humiliation, constant criti-
cism and bullying of the plaintiff. Specifically, the
plaintiff alleges that she was bullied to maximize bill-
able hours, including forcing patients to come in when
not medically required. The plaintiff also alleges that
she was constantly criticized for not bringing in new
patients and for how she conducted herself profession-
ally. As to the negligence claim, the proposed amended
revised complaint specifies that the abdominal pain the
plaintiff suffered from was appendicitis and specifies
the date she reported the pain to the defendant as Octo-
ber 3, 2011.
The defendants opposed the filing of the proposed
amended revised complaint because it would unduly
prejudice them and was an attempt to ‘‘end run’’ the
defendants’ motion for summary judgment. By an order
issued today, the court overruled the defendants’ objec-
tion because the allegations set forth in the proposed
amendment were known to the defendants in that the
plaintiff testified to them at her deposition in October,
2016, and because the amendments do not affect the
nature of the defendants’ arguments or the court’s anal-
ysis. Specifically, the court must still determine whether
the new allegations are sufficiently extreme and outra-
geous to support a claim of intentional infliction of
emotional distress. Consequently, the court will con-
sider the defendants’ motion for summary judgment in
light of the allegations in the fourth amended revised
complaint.
II
DISCUSSION
The summary judgment standard is well established.
‘‘Practice Book [§ 17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.’’
(Internal quotation marks omitted.) Stuart v. Freiberg,
316 Conn. 809, 820, 116 A.3d 1195 (2015). ‘‘[T]he genuine
issue aspect of summary judgment requires the parties
to bring forward before trial evidentiary facts, or sub-
stantial evidence outside the pleadings, from which the
material facts alleged in the pleadings can warrantably
be inferred. . . . A material fact has been defined ade-
quately and simply as a fact which will make a differ-
ence in the result of the case.’’ (Citation omitted;
internal quotation marks omitted.) Buell Industries,
Inc. v. Greater New York Mutual Ins. Co., 259 Conn.
527, 556, 791 A.2d 489 (2002).
‘‘[T]he burden of showing the nonexistence of any
material fact is on the party seeking summary judg-
ment.’’ (Internal quotation marks omitted.) Tuccio
Development, Inc. v. Neumann, 114 Conn. App. 123,
126, 968 A.2d 956 (2009). ‘‘To satisfy his burden the
movant must make a showing that it is quite clear what
the truth is, and that excludes any real doubt as to the
existence of any genuine issue of material fact. . . .
As the burden of proof is on the movant, the evidence
must be viewed in the light most favorable to the oppo-
nent. . . . When documents submitted in support of a
motion for summary judgment fail to establish that
there is no genuine issue of material fact, the nonmoving
party has no obligation to submit documents establish-
ing the existence of such an issue. . . . Once the mov-
ing party has met its burden, however, the opposing
party must present evidence that demonstrates the exis-
tence of some disputed factual issue.’’ (Internal quota-
tion marks omitted.) Ferri v. Powell-Ferri, 317 Conn.
223, 228, 116 A.3d 297 (2015).
The evidence, viewed in light most favorable to the
plaintiff, establishes the following material facts. In Jan-
uary, 2011, following the plaintiff’s residency in the
neurology department at the University of Connecticut
Health Center and Hartford Hospital, Bilchik offered the
plaintiff a staff position in the LLC, which the plaintiff
accepted. The plaintiff worked as a physician for the
LLC until June 30, 2012, when her employment was
terminated. During her employment with the LLC a
number of disputes arose between the plaintiff and the
defendants. Over the course of the plaintiff’s employ-
ment, the defendants demanded that the plaintiff
require patients to come into the office for visits, even
though the plaintiff believed that the visits were neither
medically indicated nor appropriate. On a nearly daily
basis she was disrespected and demeaned by Bilchik
and the LLC’s office manager, McGrath, who questioned
the plaintiff’s competence and complained that the
plaintiff was not generating enough revenue for the
LLC. Bilchik and McGrath also criticized and harassed
the plaintiff for her refusal to write a letter attesting to
the poor performance of an employee of the LLC. While
the plaintiff also claims that the defendants solicited
untrue complaints about her from patients, the undis-
puted facts prove otherwise. In each of the three
instances identified by the plaintiff, the undisputed evi-
dence shows that the patient first expressed his or her
dissatisfaction with the plaintiff, and that Dr. Bilchik
made a note in the patient’s file to reflect that feeling
and/or asked the patient to put it in writing. The evi-
dence, viewed in a light most favorable to the plaintiff,
does establish, however, that McGrath tried to get at
least one former employee of the LLC to write a com-
plaint against the plaintiff, but the employee refused to
do so. Knowing that her relationship with the defen-
dants had soured, the plaintiff reviewed her personnel
file in anticipation of leaving the LLC. When she did
so, she noticed that certain materials that reflected
positively on her performance and background were
missing.
On October 3, 2011, the plaintiff returned to work
following her three week honeymoon trip. When she
returned to work she had no paid vacation or personal
leave time remaining. Upon returning to work she
reported to McGrath that she did not feel well. McGrath
told the plaintiff that she had no additional leave time
to take, had a full schedule of patients to see, and that
if she felt she needed to see a doctor she would have
to do so on her own time. The plaintiff made no attempt
to seek medical treatment at any time on October 3.
On October 4, she reported to work and again told
McGrath that she did not feel well. In particular, she
reported having abdominal pain. McGrath, also a nurse,
has averred in her affidavit that she offered to conduct
an examination of the plaintiff and did so. The plaintiff
does not deny that such an examination occurred. She
simply cannot recall whether it occurred. McGrath has
also averred that she told the plaintiff to leave around
mid-day on October 4 so that she could seek medical
treatment. She has also averred that the plaintiff did in
fact leave work mid-day on October 4. Again, the plain-
tiff does not dispute McGrath’s claims. Instead, she has
testified that she cannot recall what time she left work
on October 4. The plaintiff did not seek medical treat-
ment until approximately 7 p.m. on October 4. At that
time, the doctor who saw her ordered an abdominal
CT scan for October 6. The plaintiff was given time off
from work to go for the CT scan. The test revealed
that the plaintiff had acute appendicitis and needed
emergency surgery, which was performed.
Following the surgery, the plaintiff had difficulty
becoming pregnant. She attributes those difficulties to
the fact that her treatment for appendicitis was delayed
from when she first felt symptoms on October 3 until
her operation on October 6. The only opinion testimony
she offers in support of her conclusion is her own. The
plaintiff is board certified in internal medicine, but is not
board certified in fertility medicine or as an OB/GYN.
As to the LLC’s counterclaims, it is undisputed that
while still employed by the LLC the plaintiff removed
records from the files of patients and other employees
that she believed related to her and supported her
claims of mistreatment by the defendants. The defen-
dants first learned that the plaintiff removed these
records when she testified to taking the records at her
deposition on October 10, 2016. Thereafter, the LLC
sought leave to assert its counterclaim on December
5, 2016.
A
Intentional Infliction of Emotional Distress
In the first count of her fourth amended revised com-
plaint the plaintiff claims that the defendants’ treatment
of her constitutes intentional infliction of emotional
distress. ‘‘In order for the plaintiff to prevail in a case for
liability under . . . [intentional infliction of emotional
distress], four elements must be established. It must be
shown: (1) that the actor intended to inflict emotional
distress or that he knew or should have known that
emotional distress was the likely result of his conduct;
(2) that the conduct was extreme and outrageous; (3)
that the defendant’s conduct was the cause of the plain-
tiff’s distress; and (4) that the emotional distress sus-
tained by the plaintiff was severe. . . . Whether a
defendant’s conduct is sufficient to satisfy the require-
ment that it be extreme and outrageous is initially a
question for the court to determine. . . . Only where
reasonable minds disagree does it become an issue for
the jury.’’ (Citations omitted; internal quotation marks
omitted.) Appleton v. Board of Education, 254 Conn.
205, 210, 757 A.2d 1059 (2000).
‘‘Liability for intentional infliction of emotional dis-
tress requires conduct that exceeds all bounds usually
tolerated by decent society . . . . Liability has been
found only where the conduct has been so outrageous
in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized commu-
nity. Generally, the case is one in which the recitation
of the facts to an average member of the community
would arouse his resentment against the actor, and lead
him to exclaim, Outrageous! . . . Conduct on the part
of the defendant that is merely insulting or displays bad
manners or results in hurt feelings is insufficient to
form the basis for an action based upon intentional
infliction of emotional distress.’’ (Citations omitted;
internal quotation marks omitted.) Id., 210–11.
Our appellate courts have applied the above test a
number of times to claims by employees against their
employers. For example, in Appleton, the Supreme
Court held that the trial court properly granted sum-
mary judgment for the defendant where the evidence,
viewed in a light most favorable to the plaintiff, estab-
lished that the defendant ‘‘made condescending com-
ments to [the plaintiff] in front of [her] fellow colleagues
questioning [her] vision and ability to read; telephoned
the plaintiff’s daughter, representing that the plaintiff
had been acting differently and should take a few days
off from work; and telephoned the police, who came
to the school and escorted the plaintiff out of the build-
ing to her car. The plaintiff also asserted in her affidavit
that she was subjected to two psychiatric examinations
at the request of the board, and that she was forced to
take a suspension and a leave of absence and, ulti-
mately, forced to resign.’’ (Internal quotation marks
omitted.) Id., 211. The court held that ‘‘[t]hese occur-
rences may very well have been distressing and hurt-
ful to the plaintiff. They do not, however, constitute
extreme and outrageous conduct . . . . As the defen-
dants’ actions in the present case were not so atrocious
as to exceed all bounds usually tolerated by decent
society, their conduct is insufficient to form the basis
of an action for intentional infliction of emotional dis-
tress.’’ (Citations omitted.) Id., 211–12.
In Perez-Dickson v. Bridgeport, 304 Conn. 483, 43
A.3d 69 (2012), the plaintiff’s intentional infliction of
emotional distress claim was based on allegations and
evidence that the defendants told the plaintiff that her
job was in jeopardy and subsequently subjected her to
adverse actions, including transfer, based on unsubstan-
tiated and false accusations. Again viewing the evidence
in a light most favorable to the plaintiff, the Supreme
Court held that no reasonable jury could conclude that
the conduct was so extreme or outrageous as to support
a claim for intentional infliction of emotional distress.
Id., 527. The court, thus, reversed the trial court’s denial
of the defendants’ motion for a directed verdict. Id.,
530–31.
In Tracy v. New Milford Public Schools, 101 Conn.
App. 560, 567–68, 922 A.2d 280, cert. denied, 284 Conn.
910, 931 A.2d 935 (2007), the plaintiff alleged that ‘‘[the
defendants] harassed, intimidated and defamed him in
the workplace and disciplined him without conducting
a proper investigation.’’ The trial court, assuming these
allegations to be true, granted the defendants’ motion
to strike the plaintiff’s claim of intentional infliction of
emotional distress because the allegations were not
sufficiently extreme or outrageous. Id., 568. The Appel-
late Court affirmed the trial court’s decision. Id., 570.
Similarly, the Appellate Court affirmed the granting
of a motion to strike in Dollard v. Board of Education,
63 Conn. App. 550, 777 A.2d 714 (2001). There, the
plaintiff alleged that ‘‘[i]n 1998 and early 1999, the defen-
dants jointly engaged in a concerted plan and effort to
force the plaintiff to resign from her position or to
become so distraught that they would have a colorable
basis for terminating her employment. The defendants
carried out their plan by hypercritically examining every
small detail of her professional and personal conduct.
Specifically, the defendants transferred the plaintiff to
a school where she did not want to be assigned and
then secretly hired someone to replace her at the school
from which she had been transferred. The defendants
also publicly admonished the plaintiff for chewing gum,
being habitually late, being disorganized and not using
her time well. Finally, the defendants unnecessarily
placed the plaintiff under the intensive supervision of
a friend of [one of the defendants]. The defendants
ultimately forced the plaintiff to resign.’’ Id., 552–53.
The court held that such conduct did not constitute
extreme and outrageous behavior. Id., 554–55. The
Appellate Court reached a similar conclusion when it
affirmed the trial court’s grant of summary judgment
in Gillians v. Vivanco-Small, 128 Conn. App. 207, 213,
15 A.3d 1200 (‘‘The most troubling allegation is that
the defendants vindictively conspired to terminate the
plaintiff’s employment. A concerted effort to remove
an employee, however, does not necessarily constitute
outrageous conduct . . . .’’ [Citation omitted.]), cert.
denied, 301 Conn. 933, 23 A.3d 726 (2011).
Finally the Appellate Court’s decision in Bator v.
Yale-New Haven Hospital, 73 Conn. App. 576, 808 A.2d
1149 (2002), cert. denied, 279 Conn. 903, 901 A.2d 1225
(2006), is particularly relevant to the court’s analysis
of the plaintiff’s claim here. In Bator, the ‘‘complaint
alleged that the plaintiff was employed by the defen-
dant as a respiratory therapist in February, 1989. During
the course of his employment, the defendant’s agents,
servants and employees subjected him to abusive and
disparate treatment. Specifically, the plaintiff alleged,
among other things, that his supervisor once scheduled
him to report for duty when he was under a physician’s
care. When the plaintiff failed to report as scheduled,
the supervisor recommended that he be disciplined.
The plaintiff alleged further that he received less com-
pensation than other, less experienced employees in
his position. When a nurse accused the plaintiff of being
rude to her, a supervisor falsely accused the plain-
tiff of endangering a patient’s life. One of his supervi-
sors suggested that the plaintiff seek psychiatric help
when he complained about his schedule and assign-
ments. Another of his supervisors recommended that
the plaintiff attend anger management classes after
he had a confrontation with a nurse. When the plaintiff
complained about a change in his monthly rotation
assignment, he was given a written warning. Following
another verbal altercation with a nurse about a patient’s
care, the plaintiff’s supervisor gave him a final written
warning for violence. The plaintiff further alleged that
as a result of the alleged disparate treatment he received
in the defendant’s employ, he suffered severe emotional
distress that he could no longer endure and resigned
on March 28, 2001.’’ Id., 577–78. The Appellate Court
affirmed the decision of the trial court striking the plain-
tiff’s claim for intentional infliction of emotional dis-
tress. In doing so, it concluded that ‘‘[o]n the basis of
our plenary review of the plaintiff’s complaint, taking
the facts together or in isolation, we cannot say that
this case is one in which the recitation of the facts to
an average member of the community would arouse his
resentment against the actor, and lead him to exclaim,
[Outrageous! . . . Conduct] on the part of the defen-
dant that is merely insulting or displays bad manners
or results in hurt feelings is insufficient to form the
basis for an action based upon intentional infliction of
emotional distress.’’ (Citation omitted; internal quota-
tion marks omitted.) Id., 579.
In this case, the evidence, viewed in a light most
favorable to the plaintiff, establishes that the defen-
dants were openly critical of the plaintiff as to the
number of patients she saw and the amount of billings
she generated. Bilchik and McGrath not only repeatedly
expressed their displeasure directly to the plaintiff, but
also discussed with the staff their dissatisfaction with
the plaintiff, and they sought negative comments about
the plaintiff from staff. They also included negative
comments they received from patients in various files
and records. They also removed positive material about
the plaintiff from her personnel file. They also criticized
and harassed the plaintiff for her refusal to write a
negative letter about another employee of the LLC. Fur-
thermore, the plaintiff has submitted evidence that
McGrath told the plaintiff that she could not leave work
on October 3, 2011, to see a doctor. Instead, the plaintiff
was told that she would have to do so on her own time.
Finally, Bilchik and McGrath threatened the plaintiff
with firing if she did not see more patients. These allega-
tions are remarkably similar to the allegations and facts
set forth in the cases above, which our Supreme and
Appellate Courts have deemed insufficiently extreme
and outrageous to support a claim for intentional inflic-
tion of emotional distress.
The plaintiff has not cited a single appellate court
case involving an employment relationship that has
come to a different conclusion. Instead, the plaintiff
relies on three Superior Court cases in which the court
denied a motion to strike an intentional infliction of
emotional distress claim based on an ongoing pattern
of harassment and/or defamation in the workplace. The
court finds that each of those cases is either distinguish-
able from the evidence presented here or not persuasive
in light of the appellate authority discussed above.
In Stanley Black & Decker, Inc. v. Krug, Superior
Court, judicial district of New Britain, Docket No. CV-
XX-XXXXXXX (May 7, 2015) (Abrams, J.) (60 Conn. L.
Rptr. 311), the defendant alleged, inter alia, in her coun-
terclaim a claim for intentional infliction of emotional
distress. Id., 312. The basis for the claim was the defen-
dant’s claim that ‘‘shortly after the defendant’s first
month of employment the working conditions became
intolerable because the defendant’s immediate supervi-
sor ‘would continuously bully, berate, ridicule and belit-
tle’ the defendant, ‘created a feeling of paranoia
amongst employees,’ ‘led a personal smear campaign’
against the defendant, baselessly disparaged the defen-
dant to her coworkers and management, and repeatedly
harassed the defendant.’’ Id. Based on these allegations,
Judge Abrams concluded that he ‘‘[could not] say as a
matter of law that this conduct was not sufficiently
outrageous to state a cause of action for intentional
infliction of emotional distress.’’ Id., 313. The allegations
in Krug were much broader and less specific than what
the evidence, viewed in a light most favorable to the
plaintiff, establishes here. The evidence presented is
that the defendants harassed the plaintiff and threat-
ened to terminate her because they were unhappy with
the plaintiff’s job performance, particularly as it related
to seeing and billing clients. Furthermore, the unrebut-
ted evidence presented by the defendants shows that
any patient complaints originated with the patients and
were then documented by the defendants. In addition,
the defendants’ attempts to get other workers to write
negative comments about the plaintiff resulted in no
such complaints. Finally, McGrath’s comments to the
plaintiff on October 3, 2011, that she could not leave
work to see a doctor was based on the fact that the
plaintiff had used all of her vacation and personal time.
This last fact is very similar to one of the allegations
in Bator, which the Appellate Court did not find extreme
and outrageous. In addition, the court believes that the
analysis in Krug is inconsistent with the holdings in
Tracy, Dollard, Gillians and Bator. For these reasons,
the court is not persuaded that Krug is persuasive
authority for denying the defendants’ motion for sum-
mary judgment as to the intentional infliction of emo-
tional distress claim.
The plaintiff’s reliance on Savage v. Andoh, Superior
Court, judicial district of New Haven, Docket No. CV-
XX-XXXXXXX-S (April 11, 2008) (Bellis, J.) (45 Conn. L.
Rptr. 493), and Leone v. New England Communica-
tions, Superior Court, judicial district of New Britain,
Docket No. CV-XX-XXXXXXX-S (April 10, 2002) (Quinn,
J.) (32 Conn. L. Rptr. 72), is even less persuasive. In
those cases Judges Bellis and Quinn gave great weight
to the fact that the alleged harassing behavior involved
racial and/or ethnic slurs.
Judge Bellis made specific note of this in Savage. ‘‘In
Leone v. New England Communications, [supra, 32
Conn. L. Rptr. 73] Judge Quinn denied the defendant
employer’s motion to strike where the complaint
alleged that the owners of the company referred to the
plaintiff employee as ‘dago, wop, Father Sarducci or
Gimabroni,’ made offensive comments to the plaintiff
about homosexuality and his sexual performance, and
placed sexually offensive comments and pictures on
his computer. [Id.] The court noted that ‘there is a
strong public policy expressed by statute in our state
prohibiting discrimination on the basis of race, sex or
national origin.’ Id. Based on this public policy and the
factual allegations, the court found ‘these comments so
outrageous in character, and so extreme in degree so
as to go beyond all bounds of decency and to be
regarded as atrocious and utterly intolerable in a civi-
lized community.’ . . .’’ Savage v. Andoh, supra, 45
Conn. L. Rptr. 495. Based on Leone and other cases
that found similar slurs to be sufficient, Judge Bellis
concluded that the plaintiff’s allegations of anti-Semitic
comments by her supervisor, combined with the other
allegations of her complaint sufficient to survive a
motion to strike. Id., 496.
The plaintiff here has not alleged any racial, ethnic
or similar type slurs or animus. Her allegations, and the
evidence related to them, are more of the garden variety
employee related claims that our appellate courts have
found insufficient to support a claim for intentional
infliction of emotional distress. Furthermore, both Sav-
age and Leone were decided at the pleading stage and
not based on a factual record, as is the case here. In fact,
ultimately in Savage summary judgment was granted
for the defendants when the plaintiff could not prove
the conduct alleged in the complaint. Savage v. Andoh,
Docket No. CV-XX-XXXXXXX-S, 2013 WL 951173, *20–21
(Conn. Super. February 6, 2013) (B. Fischer, J.).
Overall, the evidence submitted, viewed in a light
most favorable to the plaintiff, does not establish con-
duct that a reasonable jury could conclude constituted
extreme and outrageous behavior. Consequently, the
defendants are entitled to summary judgment on the
first count of the fourth amended revised complaint.
B
Negligence
As noted above, the plaintiff’s negligence count
alleges that the defendants were negligent in not
allowing the plaintiff to leave work on October 3, 2011,
to see a doctor. The plaintiff alleges that as a result of
this negligence the plaintiff’s treatment for her appendi-
citis was delayed and she suffered complications,
including infertility.
‘‘The essential elements of a cause of action in negli-
gence are well established: duty; breach of that duty;
causation; and actual injury.’’ (Internal quotation marks
omitted.) Mazurek v. Great American Ins. Co., 284
Conn. 16, 29, 930 A.2d 682 (2007). Generally, ‘‘[i]ssues
of negligence are ordinarily not susceptible of summary
adjudication but should be resolved by trial in the ordi-
nary manner.’’ (Internal quotation marks omitted.)
Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582
(1984). However, the ‘‘issue of whether a defendant
owes a duty of care is an appropriate matter for sum-
mary judgment because the question is one of law.’’
(Internal quotation marks omitted.) Mozeleski v.
Thomas, 76 Conn. App. 287, 290, 818 A.2d 893, cert.
denied, 264 Conn. 904, 823 A.2d 1221 (2003). ‘‘The exis-
tence of a duty is a question of law and only if such a
duty is found to exist does the trier of fact then deter-
mine whether the defendant violated that duty in the
particular situation at hand.’’ (Internal quotation marks
omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553
(2012). In addition, ‘‘[a]lthough the issue of causation
generally is a question reserved for the trier of fact . . .
the issue becomes one of law when the mind of a fair
and reasonable person could reach only one conclusion,
and summary judgment may be granted based on a
failure to establish causation.’’ (Internal quotation
marks omitted.) Abrahams v. Young & Rubicam, Inc.,
240 Conn. 300, 307, 692 A.2d 709 (1997).
The defendants first claim that they owed no duty to
the plaintiff to tell her she was free to leave work to
go to a doctor and that their failure to do so cannot
expose them to a claim that the plaintiff suffered some
adverse medical consequence because she was delayed
in getting to the doctor. In making this argument, the
defendants note that this is not a medical malpractice
case. The plaintiff does not claim that she was in the
medical care of the defendants. Instead, the plaintiff’s
claim is that an employer owes a duty to accommodate
a request of an employee to leave work to see a doctor
and if the employer fails to do so, it can be sued for
any adverse effects suffered by the employee because
treatment was delayed.
‘‘Duty is a legal conclusion about relationships
between individuals, made after the fact, and imperative
to a negligence cause of action. The nature of the duty,
and the specific persons to whom it is owed, are deter-
mined by the circumstances surrounding the conduct
of the individual. . . . 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 foresee-
able . . . . [T]he test for the existence of a legal duty
entails (1) a determination of whether an ordinary per-
son in the defendant’s position, knowing what the
defendant knew or should have known, would antici-
pate that harm of the general nature of that suffered
was likely to result, and (2) a determination, on the basis
of a public policy analysis, of whether the defendant’s
responsibility for its negligent conduct should extend
to the particular consequences or particular plaintiff in
the case.’’ (Internal quotation marks omitted.) Law-
rence v. O & G Industries, Inc., 319 Conn. 641, 649–50,
126 A.3d 569 (2015). That an injury is foreseeable does
not ‘‘mandate a determination that a legal duty exists.
Many harms are quite literally foreseeable, yet for prag-
matic 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 protec-
tion. . . . 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. . . . [I]n considering whether
public policy suggests the imposition of a duty, we
. . . consider the following four factors: (1) the normal
expectations of the participants in the activity under
review; (2) the public policy of encouraging participa-
tion in the activity, while weighing the safety of the
participants; (3) the avoidance of increased litigation;
and (4) the decisions of other jurisdictions. . . . [This]
totality of the circumstances rule . . . is most consis-
tent with the public policy goals of our legal system,
as well as the general tenor of our [tort] jurisprudence.’’
(Internal quotation marks omitted.) Id., 650–51.
As to foreseeability, the facts, viewed in a light most
favorable to the plaintiff, are as follows. Although her
testimony as to when she reported to McGrath that
she felt ill is less than clear, it is possible to read her
deposition such that she reported not feeling well upon
her return from her honeymoon on October 3, 2011. In
response to being so notified by the plaintiff, McGrath
told the plaintiff that she would need to go to the doctor
on her own time because she had a full schedule of
patients to see. The question then is whether the defen-
dant could reasonably have foreseen from the plaintiff’s
statement that she did not feel well that waiting to see
a doctor until a time when the plaintiff was not occupied
with work duties, whether during a lunch break or after
the workday, would lead to a significant medical com-
plication, including the alleged infertility.
The court concludes that an ordinary person in the
situation of the defendants would not reasonably fore-
see the consequences claimed by the plaintiff. It is not
unusual for employees to report to work and tell their
employer that they are not feeling well or suffering
from some aliment. An ordinary employer would not
be expected to reasonably foresee from such a com-
plaint that serious complications might develop if not
treated immediately or within hours. In fact, the ordi-
nary employer would expect that the employee, who
knows better than anyone how they are feeling, would
take responsibility for their own medical care if they
truly felt in distress. This conclusion is particularly apt
here when the only evidence of what the plaintiff
reported on October 3, 2011, was that she was not
feeling well.
There is evidence that when the plaintiff came to
work on October 4, 2011, she reported abdominal pain,
vomiting, nausea and diarrhea that all started that morn-
ing. This evidence might have put the defendants on
greater notice as to the foreseeable consequences of a
delay in treatment. However, the plaintiff does not and
cannot rely on the complaints on October 4 because
the unrebutted evidence submitted by the defendants
is that McGrath conducted an examination of the plain-
tiff on October 4 and told her to leave mid-day so that
the plaintiff could see a doctor. McGrath’s unrebutted
testimony is that the plaintiff in fact left work mid-day
on October 4. The plaintiff does not deny that she was
examined by McGrath or that she left work mid-day on
October 4. She testified that she simply does not recall.
Consequently, even if the court were to determine that
the defendants owed the plaintiff a duty on October 4,
2011, not to delay her treatment, the undisputed evi-
dence is that they did not delay her treatment that day.
Recognizing this problem, the plaintiff has amended her
complaint to specifically allege that she first reported
feeling ill on October 3. Consequently, the question is
whether the general nature of the harm alleged by the
plaintiff was foreseeable on October 3. For the reasons
set forth above, it was not.
Furthermore, even if the court determined that the
plaintiff’s alleged injuries were foreseeable on October
3 or that the plaintiff might be able to prove a breach
of a duty, assuming, one existed, on October 4, the
court would still need to conduct the second part of
the duty analysis and determine whether as a matter
of public policy, an employer owes a duty to an
employee to make sure she has access to prompt medi-
cal care if she complains of an ailment. Although the
parties did not address the four public policy factors,
the court will.
First, the normal expectations of employers and
employees is not that employers take responsibility for
an employee’s health and welfare other than the
employee’s actual working conditions. Our legislature
has by statute spelled out an employer’s obligation to
its employees. General Statutes § 31-49 provides: ‘‘It
shall be the duty of the master to exercise reasonable
care to provide for his servant a reasonably safe place
in which to work, reasonably safe appliances and instru-
mentalities for his work and fit and competent persons
as his colaborers and to exercise reasonable care in
the appointment or designation of a vice-principal and
to appoint as such vice-principal a fit and competent
person. The default of a vice-principal in the perfor-
mance of any duty imposed by law on the master shall
be the default of the master.’’ Nothing in the statute
imposes any duty on the employer to insure that its
employees are permitted to leave work as necessary
to seek medical treatment. In fact, in October, 2011,
Connecticut law did not require that every employer
provide its employees with paid medical leave. Thus,
many employees could have been in the position of
waiting until nonwork hours to seek medical treatment
or risk loss of pay or other discipline by their employer.
Second, the public policy regarding the interplay of
employers and employees is spelled out in great detail
by our legislature in several statutes. The fact that the
legislature has heavily regulated this relationship
weighs against the court judicially creating duties and
rights between the parties.
Third, imposition of a duty on an employer to insure
prompt medical treatment of a sick employee will no
doubt lead to increased litigation. Furthermore, the cre-
ation of such a duty would have the perverse effect of
discouraging employees from taking primary responsi-
bility for their own health. For this reason, creating a
cause of action is an inefficient and costly way of insur-
ing that employees seek treatment for medical ailments.
Finally, the plaintiff has not cited a single case from
another jurisdiction that has recognized such a duty,
and the court is not aware of any. The closest this court
could find to a claim such as that alleged here by the
plaintiff is Coste v. Riverside Motors, Inc., 24 Conn.
App. 109, 585 A.2d 1263 (1991). In that case, the
employee sued his employer for not allowing him to
leave work during the early stages of a snowstorm. The
employee claimed that by the time he was permitted
to go home the conditions had worsened and he ended
up in a motor vehicle accident as a result. The Appellate
Court affirmed the trial court’s ruling striking the com-
plaint because the plaintiff could not allege that the
employer’s decision was the proximate cause of the
accident. While the court was not required to address
whether the defendant owed the plaintiff any duty
regarding the decision of when to allow its employees
to leave work, the court did note: ‘‘The implication of
the delict is that an employer has a duty to ensure an
employee a safe trip home or a duty to prevent an
employee from driving in hazardous weather. Although
we know of no case, statute or principle of common
law that places such a duty on an employer, we need
not reach the issue because we conclude that legal
causation has not been sufficiently alleged.’’ (Footnote
omitted.) Id., 112. Similarly, this court knows of no case,
statute or principle of common law that would impose
on the defendants the duty alleged by the plaintiff.
Overall, none of the four public policy factors support
creation of the duty suggested by the plaintiff. Conse-
quently, the court concludes that the defendants did
not owe the plaintiff a duty to insure that she was given
time off from work to seek medical treatment when
she complained of not feeling well, and the defendants
are entitled to summary judgment on the second count
of the fourth amended revised complaint.
The defendants further argue that even if the court
does find that they owed the plaintiff the duty alleged,
the plaintiff has failed to present competent evidence
that any breach of that duty by the defendants caused
the plaintiff’s claimed harm. ‘‘Causation is an essential
element of a cause of action in negligence. . . . [A]
plaintiff must establish that the defendant’s conduct
legally caused the injuries. . . . The first component
of legal cause is causation in fact. Causation in fact is
the purest legal application of . . . legal cause. The
test for cause in fact is, simply, would the injury have
occurred were it not for the actor’s conduct. . . . The
second component of legal cause is proximate cause
. . . . [T]he test of proximate cause is whether the
defendant’s conduct is a substantial factor in bringing
about the plaintiff’s injuries. . . . Further, it is the
plaintiff who bears the burden to prove an unbroken
sequence of events that tied his injuries to the [defen-
dant’s conduct]. . . . The existence of the proximate
cause of an injury is determined by looking from the
injury to the negligent act complained of for the neces-
sary causal connection. . . . This causal connection
must be based upon more than conjecture and surmise.’’
(Citation omitted; internal quotation marks omitted.)
Kumah v. Brown, 130 Conn. App. 343, 347, 23 A.3d 758
(2011). While the issue of causation is typically for the
jury, where evidence of the connection between the
defendant’s conduct and the plaintiff’s injuries is attenu-
ated or would call for conjecture on the part of the fact
finder, the issue can be resolved on summary judgment.
Id., 350–51.
As noted above, the only evidence the plaintiff has
regarding causation is her opinion testimony that the
delay in treatment of her appendicitis led to complica-
tions, including her infertility. The plaintiff’s opinion,
though, makes no attempt to relate any particular
period of delay to the alleged complications. For exam-
ple, the plaintiff now claims in the fourth amended
revised complaint that she first complained of not feel-
ing well upon her return to work on October 3, 2011.
However, it is undisputed that the plaintiff made no
attempts to seek medical treatment after her workday
ended on October 3. The plaintiff has presented no
evidence, expert or otherwise, tying the delay in treat-
ment, from her first complaint on October 3 to her first
opportunity to seek treatment later that day, to her
alleged injuries. This is crucial because the only evi-
dence as to October 4 is that when the plaintiff com-
plained of injuries that day she was examined by
McGrath and permitted to leave work mid-day. For
whatever reason though, the plaintiff did not seek medi-
cal treatment until approximately 7 that evening. Again,
the plaintiff has presented no evidence as to the effect
of the delay caused by her own decision not to seek
treatment until later that evening. Finally, although the
plaintiff sought treatment on October 4, her CT scan
and surgery did not occur until October 6. The plaintiff
does not claim that the delay from October 4 to October
6 was in any way the fault of the defendants. In fact,
she admits that she was given time off from work on
October 6 to have the CT scan performed. The plaintiff
has presented no expert opinion differentiating any
harm from this delay from the harm associated with
the only delay, based on the evidence, that can be attrib-
uted to the defendants—the hours on October 3
between when she first complained of discomfort and
when she could have sought treatment that evening. In
the end, the plaintiff’s evidence of proximate cause is
full of gaps that would require the fact finder to engage
in conjecture and speculation as to whether the alleged
negligence of the defendants was a substantial factor
in bringing about her alleged injury. See, e.g., Coste v.
Riverside Motors, Inc., supra, 24 Conn. App. 115 (‘‘[t]he
defendant’s conduct is too inconsequential to the ulti-
mate harm to the plaintiff, considering the many other
variables, to rise to the level of proximate cause’’).
Because, based on the evidence presented, no reason-
able jury could find that the defendants’ alleged conduct
proximately caused the plaintiff’s claimed injuries, the
defendants are entitled to summary judgment on the
second count of the fourth amended revised complaint.
C
LLC’s Counterclaim
Whether the LLC is entitled to summary judgment on
the six counts of its counterclaim turns on application
of the statute of limitations. The plaintiff claims that
all six counts are barred by General Statutes § 52-577,
which requires that any claim in tort be brought within
three years from the date of the act or omission com-
plained of. She argues that the LLC’s counterclaim was
not brought until January, 2017, yet alleges wrongful
conduct that took place while the plaintiff was
employed by the LLC. She argues that because her
employment with the LLC ended in June, 2012, it is
clear that the counterclaim is untimely and that she is
entitled to summary judgment on all six counts.
The LLC’s only response to the plaintiff’s argument
is that it did not learn of the plaintiff’s conduct until
her deposition in October, 2016. Thereafter, the LLC
immediately sought to plead its counterclaim in Decem-
ber, 2016. The LLC argues, relying on General Statutes
§ 52-595, that the three year limitation period in § 52-
577, was tolled due to the plaintiff’s concealment of her
conduct. Section 52-595 provides: ‘‘If any person, liable
to an action by another, fraudulently conceals from him
the existence of the cause of such action, such cause
of action shall be deemed to accrue against such person
so liable therefor at the time when the person entitled
to sue thereon first discovers its existence.’’ ‘‘[T]o prove
fraudulent concealment, the plaintiffs [must] show: (1)
[the] defendant’s actual awareness, rather than imputed
knowledge, of the facts necessary to establish the plain-
tiffs’ cause of action; (2) [the] defendant’s intentional
concealment of these facts from the plaintiffs; and (3)
[the] defendant’s concealment of the facts for the pur-
pose of obtaining delay on the plaintiffs’ part in filing
a complaint on their cause of action. . . . To do so, it
[is] not sufficient for the plaintiffs to prove merely that
it was more likely than not that the defendants had
concealed the cause of action. Instead, the plaintiffs
[must] prove fraudulent concealment by the more
exacting standard of clear, precise, and unequivocal
evidence.’’ (Citation omitted; internal quotation marks
omitted.) Weiner v. Clinton, 106 Conn. App. 379, 387,
942 A.2d 469 (2008).
Neither party has submitted any evidence regarding
the elements that the LLC must prove to establish fraud-
ulent concealment. As the party moving for summary
judgment, the LLC has failed to meet its burden. Conse-
quently, its motion for summary judgment on the six
counts of its counterclaim is denied. The plaintiff, hav-
ing never actually moved for summary judgment on the
counterclaim, is not entitled to have it enter based solely
on her opposition to the defendant’s motion for sum-
mary judgment.
III
CONCLUSION
For all of the foregoing reasons, the defendants’
motion for summary judgment as to the first and second
counts of the plaintiff’s fourth amended revised com-
plaint is GRANTED. The LLC’s motion for summary
judgment as to each of the six counts of its counterclaim
is DENIED.
* Affirmed. Vodovskaia-Scandura v. Hartford Headache Center, LLC, 192
Conn. App. 559, A.3d (2019).
1
It does not appear that the plaintiff ever filed a third amended complaint.
Nevertheless, because the plaintiff has labeled it as such, the court will
refer to the proposed amended revised complaint as the fourth.