ELNITSKY v. VODRA, No. CV06-5002902S (May 1, 2008)

THOMAS F. UPSON, JUDGE.

On October 17, 2006, the plaintiff, Doreen Elnitsky, filed a nine-count complaint, sounding in medical malpractice, lack of informed consent and negligent misrepresentation, against the defendants, Janet Vodra, Ian Cohen and Associated Women's Health Specialists, PC. On January 2, 2007, the defendants filed a motion to strike counts three, six and nine of the complaint, which allege negligent misrepresentation against each of the defendants, on the ground that the three counts are legally insufficient as they: (1) recast the medical malpractice claims contained in counts one, four and seven; (2) recast the lack of informed consent claims contained in counts two, five and eight; and (3) fail to allege facts to support a claim for negligent misrepresentation.

On February 15, 2008, the plaintiff filed a memorandum in opposition to the defendants' motion to strike, in which she argued that she sufficiently pleaded a claim of negligent misrepresentation and that the defendants should have filed a request to revise to address any "recasting" of certain allegations. The plaintiff filed a reply memorandum on April 17, 2008. The court heard oral argument on the matter on April 28, 2008.

"Our Supreme Court has long recognized liability for negligent misrepresentation. [It has] held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth . . . The governing principles are set forth in similar terms in § 552 of the Restatement Second of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information . . . Accordingly, an action for negligent misrepresentation requires a plaintiff to prove that (1) the defendant made a misrepresentation and (2) the plaintiff reasonably relied upon that misrepresentation . . . CT Page 7449 Whether evidence supports a claim of . . . negligent misrepresentation is a question of fact." Savings Bank of Manchester v. Ralion Financial Services, Inc., 91 Conn.App. 386, 389-90, 881 A.2d 1035 (2005); D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 217-18, 520 A.2d 217 (1987).

In paragraph 11 of counts three, six and nine, the plaintiff alleges: "Prior to the performance of the laparoscopic assisted vaginal hysterectomy on the plaintiff . . . the defendant . . . failed to exercise reasonable care in obtaining or communicating certain information to the plaintiff in that the defendant mislead, misinformed and misrepresented her skills, qualifications and/or experience with regard to the procedure to the plaintiff." In paragraph 12 of counts three, six and nine, the plaintiff alleges: "The plaintiff . . . reasonably and/or justifiably relied on the false information provided to her by the defendant . . . in deciding to undergo the laparoscopic assisted vaginal hysterectomy."

The court finds that these allegations are unique to the three counts alleging negligent misrepresentation and that they are sufficient to support such a claim. Accordingly, the defendants' motion to strike is denied.

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