Lastrina v. Bettauer

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RICHARD LASTRINA, CONSERVATOR (ESTATE OF
DANIEL LASTRINA) v. EVELYN BETTAUER
(AC 44509)
RICHARD LASTRINA, CONSERVATOR (ESTATE OF
DANIEL LASTRINA) v. BRUCE E. BURNHAM
(AC 44510)
Bright, C. J., and Cradle and Suarez, Js.
Syllabus
The plaintiff, as conservator of the estate of his son D, sought to recover
damages from the defendants, B and E, for medical malpractice in
connection with their treatment of D. D used marijuana on a regular
basis and, anticipating that his employer may administer random drug
tests, decided to obtain a medical marijuana certificate based on a
diagnosis of post-traumatic stress disorder (PTSD), even though D did
not believe that he suffered from that condition. D scheduled an appoint-
ment with B, a physician, to obtain the medical marijuana certificate.
B referred D to E, a psychologist, who diagnosed D with PTSD based
on D’s misrepresentations. B accepted E’s diagnosis and provided D
with a medical marijuana certificate. D proceeded to use medical mari-
juana every day and, after approximately two weeks, stopped taking
his medication for his bipolar disorder. Thereafter, D was hospitalized
due to a manic episode and was later discharged to a facility to partici-
pate in a marijuana dependent rehabilitation program. The plaintiff
alleged that the defendants violated the applicable standards of care
for their respective professions and that, as a result of the defendants’
negligence, D suffered from adverse consequences caused by his use
of medical marijuana, including exacerbation of D’s bipolar disorder and
hospitalization. Each defendant filed a motion for summary judgment,
claiming that the wrongful conduct rule, which serves as a limitation
on liability in civil actions premised on the notion that a plaintiff should
not recover for injuries that are sustained as the direct result of his or
her knowing and intentional participation in a criminal act, and public
policy barred the plaintiff’s actions. The trial court granted the motions,
finding that D’s conduct in purposely deceiving the defendants to obtain
certification for medical marijuana constituted a violation of the statute
(§ 21a-266) that prohibits the acquisition of a controlled substance by,
inter alia, fraud, and was a felony pursuant to statute (§ 21a-255). Accord-
ingly, the trial court held that it would violate public policy to impose
a duty on the defendants to protect D from the consequences of his
own admitted illegal conduct. On the plaintiff’s appeal to this court, held:
1. The trial court properly granted the defendants’ motions for summary
judgment as that court correctly found that there was no genuine issue
of material fact as to whether a sufficient causal nexus existed between
D’s misrepresentations to the defendants and his injuries to preclude
recovery: it was undisputed that D intentionally lied to the defendants
to obtain a PTSD diagnosis so that he could purchase medical marijuana,
that the plaintiff’s sole claim was that D’s injuries were caused by his
use of the medical marijuana that he illegally obtained, and that D’s
conduct constituted a violation of § 21a-266 (a) and that such violation
constituted a felony pursuant to § 21a-255 (c), and, accordingly, D’s
illegal conduct was therefore intertwined with the alleged negligent
treatment by the defendants because that treatment was simply part of
and resulted from D’s fraud, and, to the extent that D suffered injuries
from his use of medical marijuana, those injuries occurred because D,
after his encounters with the defendants, engaged in the further voli-
tional criminal conduct of going to a medical dispensary and fraudulently
obtaining marijuana.
2. The trial court correctly concluded that no genuine issue of material fact
existed as to whether D’s conduct amounted to ‘‘serious criminality’’: the
wrongful conduct rule has been limited to cases in which the plaintiff’s
injuries stem from conduct that is prohibited, as opposed to merely
regulated, by law, and the violation is serious or involves moral turpitude,
the plaintiff conceded that D’s conduct in seeking to obtain medical
marijuana by fraud constituted an unclassified felony, and, on appeal,
the plaintiff presented no meaningful argument in support of his claim
that a genuine issue of material fact existed as to whether D’s conduct
amounted to serious criminality.
Argued November 2, 2022—officially released February 14, 2023
Procedural History
Action, in each case, to recover damages for medical
malpractice, brought to the Superior Court in the judi-
cial district of Hartford, where the court, Cobb, J.,
granted the motion for summary judgment filed by the
defendant in each case and rendered judgment thereon,
from which the plaintiff filed separate appeals to this
court. Affirmed.
Gerald S. Sack, for the appellant in each case (plain-
tiff).
Laura E. Waltman, with whom, on the brief, was
Jonathan A. Kocienda, for the appellee in Docket No.
AC 44509 (defendant).
William F. Corrigan, for the appellee in Docket No.
AC 44510 (defendant).
Opinion
BRIGHT, C. J. In these medical malpractice actions,
the plaintiff, Richard Lastrina, as conservator of the
estate of his son Daniel Lastrina (Daniel), appeals from
the judgments of the trial court granting the motions
for summary judgment filed by the defendants, Evelyn
Bettauer, a psychologist, and Bruce E. Burnham, a phy-
sician. The court granted summary judgment for each
defendant, concluding that it would violate public pol-
icy to impose a duty on the defendants to protect Daniel
from the harm caused by his own illegal conduct. On
appeal, the plaintiff claims that the court improperly
granted summary judgment for the defendants because
there are genuine issues of material fact as to whether
Daniel’s illegal conduct (1) caused his injuries and (2)
constituted ‘‘serious criminality.’’ We disagree and,
accordingly, affirm the judgments of the trial court.
The record, viewed in the light most favorable to the
plaintiff as the nonmoving party, reveals the following
facts and procedural history. In the summer of 2008,
after his freshman year of college, Daniel began using
marijuana and continued to use marijuana regularly
over the following years. Daniel suffers from bipolar
disorder and was hospitalized on several occasions
between 2011 and 2017, due to episodes of depression
and mania. Since 2012, Daniel has been prescribed vari-
ous medications to treat his condition.
In his deposition, Daniel explained that, in April, 2017,
he wanted a medical marijuana certificate ‘‘so that if
[his employer] drug tested [him] at work, [he] wouldn’t
get fired.’’ In pursuit of that goal, he reviewed the list of
debilitating medical conditions1 that qualify for medical
marijuana use and decided that, although he did not
suffer from any of those conditions, he could convince
a doctor that he had post-traumatic stress disorder
(PTSD). He scheduled an appointment with Burnham
and falsely reported that he had been traumatized by
his prior admissions to mental health facilities related
to his bipolar disorder and that he continued to suffer
from that trauma.2 He also told Burnham that he had
used marijuana regularly without any adverse conse-
quences.
After meeting with Daniel, Burnham referred him to
Bettauer, who met Daniel that same day. Daniel
repeated his misrepresentation to Bettauer, and she
diagnosed him with PTSD. Burnham accepted Bet-
tauer’s diagnosis and provided Daniel with a medical
marijuana certificate. Daniel proceeded to use medical
marijuana every day and, after approximately two
weeks, stopped taking his medication for his bipolar
disorder. On October 9, 2017, Daniel was hospitalized
due to a manic episode and thereafter was discharged
to Silver Hill Hospital to participate in a marijuana
dependent rehabilitation program.
After the plaintiff was appointed conservator of Dan-
iel’s estate in November, 2017, he initiated separate
medical malpractice actions against the defendants.3
The plaintiff alleged that Bettauer violated the applica-
ble standard of care for psychologists by, among other
things, improperly diagnosing Daniel with PTSD. In the
Burnham action, the plaintiff alleged that Burnham
deviated from the applicable standard of care for physi-
cians certifying patients for the use of medical mari-
juana in several ways, including that he relied on Bet-
tauer’s diagnosis of PTSD and prescribed medical
marijuana for Daniel when Burnham knew that Daniel
suffered from bipolar disorder and had experienced
negative consequences from the use of marijuana. In
each case, the plaintiff alleged that, due to the defen-
dants’ violations of the respective standards of care,
Daniel suffered from adverse consequences resulting
from his use of medical marijuana, including exacerba-
tion of Daniel’s bipolar disorder and hospitalization.
The two cases were consolidated for purposes of dis-
covery.
Bettauer filed an answer and special defenses in
which she denied any negligence and asserted, inter
alia, that the plaintiff’s claims were barred because Dan-
iel’s injuries were sustained due to his own wrongful
conduct. Burnham filed an answer leaving the plaintiff
to his proof.
Each defendant filed a motion for summary judg-
ment, claiming that, pursuant to Greenwald v. Van Han-
del, 311 Conn. 370, 88 A.3d 467 (2014), the wrongful
conduct rule and public policy barred the plaintiff’s
actions.4 The wrongful conduct rule serves as ‘‘a limita-
tion on liability in civil actions premised on the notion
that a plaintiff should not recover for injuries that are
sustained as the direct result of his or her knowing and
intentional participation in a criminal act.’’ (Internal
quotation marks omitted.) Burke v. Mesniaeff, 334
Conn. 100, 122 n.9, 220 A.3d 777 (2019). In Greenwald,
our Supreme Court concluded that it was unnecessary
to adopt ‘‘any sweeping rule or exceptions thereto’’
because it was clear based on the facts alleged by the
plaintiff that ‘‘it would violate public policy to impose
a duty on the defendant to protect the plaintiff from
the injuries arising from the legal consequences of his
admitted illegal conduct.’’ Greenwald v. Van Handel,
supra, 374. In the present cases, the defendants argued
in their motions for summary judgment that the ratio-
nale of Greenwald applies with equal force to bar the
plaintiff’s claims because any injuries Daniel suffered
were the result of his admitted illegal conduct.
The plaintiff filed objections to the motions for sum-
mary judgment. In his memoranda of law in support of
the objections, the plaintiff asserted that there was a
genuine issue of material fact as to whether Daniel’s
conduct was a ‘‘serious felony,’’ which he argued was
not the case. The plaintiff also argued that there was
a genuine issue of material fact as to causation. The
plaintiff attached to his memoranda affidavits from similar
health care providers who opined that the defendants’
deviations from the standards of care—not Daniel’s
misrepresentation—caused Daniel to be misdiagnosed
with PTSD, which caused his injuries.5
The court held a remote hearing on the motions for
summary judgment on December 7, 2020. On December
11, 2020, the court filed a memorandum of decision
granting the defendants’ motions. Although the court
noted that our Supreme Court had declined to adopt
fully the wrongful conduct rule in Greenwald, it found
that the general principles addressed in Greenwald con-
cerning wrongdoing were applicable to the present
cases. The court determined that Daniel’s conduct in
purposely deceiving the defendants to obtain certifica-
tion for medical marijuana constituted a felony. The
court explained that such conduct violated General
Statutes § 21a-266 (a),6 which prohibits the acquisition
of a controlled substance7 ‘‘by fraud, deceit, misrepre-
sentation or subterfuge,’’ and that a violation of § 21a-
266 (a) is a felony pursuant to General Statutes § 21a-
255 (c).8 Accordingly, the court rejected the plaintiff’s
claim that there was a genuine issue of material fact
as to whether Daniel’s conduct constituted a ‘‘serious
felony.’’ The court also rejected the plaintiff’s claim
regarding causation, concluding that ‘‘Daniel’s injuries
were not independent of his admitted criminal acts, but
caused by them.’’ Accordingly, the court held that it
would violate public policy to impose a duty on the
defendants to protect Daniel from the consequences of
his own admitted illegal conduct. The plaintiff filed
motions to reconsider and/or reargue, which the court
denied. These appeals followed.9
As a preliminary matter, we first set forth the applica-
ble standard of review. ‘‘On appeal, [w]e must decide
whether the trial court erred in determining that there
was no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter
of law. . . . [O]ur review is plenary and we must decide
whether the [trial court’s] conclusions are legally and
logically correct and find support in the facts that
appear on the record. . . .
‘‘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.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . .
‘‘A material fact is a fact that will make a difference
in the outcome of the case. . . . Once the moving party
has presented evidence in support of the motion for
summary judgment, the opposing party must present
evidence that demonstrates the existence of some dis-
puted factual issue . . . . To oppose a motion for sum-
mary judgment successfully, the nonmovant must recite
specific facts . . . which contradict those stated in the
movant’s affidavits and documents.’’ (Internal quotation
marks omitted.) Streifel v. Bulkley, 195 Conn. App. 294,
299–300, 224 A.3d 539, cert. denied, 335 Conn. 911, 228
A.3d 375 (2020).
In addition, we note that ‘‘[t]he existence of a duty
is a question of law . . . . If a court determines, as a
matter of law, that a defendant owes no duty to a plain-
tiff, the plaintiff cannot recover in negligence from the
defendant.’’ (Internal quotation marks omitted.) Jarmie
v. Troncale, 306 Conn. 578, 589, 50 A.3d 802 (2012).
I
The plaintiff first claims that the court improperly
granted the defendants’ motions for summary judgment
because there is a genuine issue of material fact as
to whether a sufficient causal nexus exists between
Daniel’s misrepresentation to the defendants and his
injuries to preclude recovery.10 Thus, although whether
a duty exists is a question of law, the plaintiff contends
that application of the wrongful conduct rule in the
present cases depends on a disputed factual issue
regarding causation. We are not persuaded.
We begin our analysis with a review of Greenwald
v. Van Handel, supra, 311 Conn. 370, in which our
Supreme Court discussed the wrongful conduct rule
and its application. In that case, a plaintiff filed a profes-
sional negligence action against a defendant, a licensed
clinical social worker, for failing to treat him in connec-
tion with his viewing of child pornography as a minor.
Id., 372. In his complaint, the plaintiff alleged ‘‘that
the defendant’s failure to address his forays into child
pornography when he was a minor led to his continued
viewing of child pornography and his home being raided
and searched by the police. The plaintiff further alleged
that, as a consequence of the defendant’s negligence,
he has spent, and will be required to continue to spend,
large sums of money on professional mental health care
for his recovery and maintenance.’’ Id., 373. The trial
court granted the defendant’s motion to strike the com-
plaint on the ground that it would violate public policy
to allow the plaintiff to profit from his own criminal
acts and rendered judgment for the defendant. Id., 374.
On appeal, the plaintiff claimed that Connecticut had
not adopted a wrongful conduct rule and that, assuming
such a rule applies, our Supreme Court should adopt
certain exceptions to the rule recognized by the Michi-
gan Supreme Court. Id., 372, 382.
In rejecting the plaintiff’s claims, our Supreme Court
explained that it has ‘‘recognized the common-law max-
ims that [n]o one shall be permitted to profit by his
own fraud, or to take advantage of his own wrong, or
to found any claim upon his own iniquity, or to acquire
property by his own crime. These maxims are dictated
by public policy, [and] have their foundation in univer-
sal law administered in all civilized countries . . . .
‘‘Many of our sister states . . . have extended these
principles to tort actions. The generally articulated com-
mon-law wrongful conduct rule in these jurisdictions
provides that a plaintiff cannot maintain a tort action
for injuries that are sustained as the direct result of
his or her knowing and intentional participation in a
criminal act. . . .
‘‘The jurisdictions extending this rule to tort actions
have set certain limitations on its application. Courts
in many of these states have limited the rule’s applica-
tion to cases in which the plaintiff’s injuries stem from
conduct that is prohibited, as opposed to merely regu-
lated, by law, and the violation is serious or involves
moral turpitude. . . . In addition, courts have univer-
sally recognized that there must be a sufficient causal
nexus between the plaintiff’s illegal conduct and his
alleged injuries to bar recovery. . . .
‘‘Although courts have had difficulty drawing these
lines in some cases, the present case causes no such
problems. The plaintiff has admitted to conduct that
constitutes a serious felony, and such conduct has a
direct causal connection to his alleged injuries. Accord-
ingly, there is no question that he would be barred from
recovering under this rule . . . .’’ (Citations omitted;
footnotes omitted; internal quotation marks omitted.)
Id., 376–80.
Ultimately, our Supreme Court concluded that, ‘‘irre-
spective of whatever limits might be imposed by the
wrongful conduct rule, it is clear . . . that it would
violate the public policy of our state to impose a duty
on the defendant to protect the plaintiff from injuries
arising from the legal consequences of the plaintiff’s
volitional criminal conduct, unlawful viewing and down-
loading of child pornography. Under the theory of
recovery advanced by the plaintiff, the more serious
the criminal conduct, and the more severe the attendant
punishment, the greater his recovery would be. It is
self-evident why such a result would contravene public
policy. Moreover, [t]he fundamental policy purposes of
the tort compensation system [namely] compensation
of innocent parties, shifting the loss to responsible par-
ties or distributing it among appropriate entities, and
deterrence of wrongful conduct . . . would not be met
by imposing such liability on the defendant.
‘‘In reaching this conclusion, we underscore that we
do not hold that the defendant did not have a duty to
exercise reasonable care in his treatment of the plain-
tiff. Indeed, if the plaintiff sustained injuries indepen-
dent of the legal consequences of his criminal acts as
a result of the defendant’s negligent treatment of his
underlying mental condition, the wrongful conduct rule
would have no application. The door of a court is not
barred because the plaintiff has committed a crime.
. . . The court’s aid is denied only when he who seeks
it has violated the law in connection with the very
transaction as to which he seeks legal redress. Then
aid is denied despite the defendant’s wrong. It is denied
in order to maintain respect for law; in order to promote
confidence in the administration of justice; in order
to preserve the judicial process from contamination.’’
(Emphasis in original; internal quotation marks omit-
ted.) Id., 385–86; see also Jarmie v. Troncale, supra,
306 Conn. 599.
In further defining the limits of its holding, our
Supreme Court explained that, because the plaintiff did
not claim that he lacked criminal responsibility for his
illegal conduct, it had ‘‘no occasion to consider whether
a plaintiff could recover for injuries arising from nonvo-
litional criminal conduct. We simply conclude that injur-
ies arising from volitional criminal conduct cannot, as
a matter of public policy, provide a basis for recovery.’’
Id., 387 n.10.
In the present cases, the plaintiff claims that
Greenwald should be limited to its facts. He seizes
on the court’s qualification in Greenwald that, ‘‘if the
plaintiff sustained injuries independent of the legal con-
sequences of his criminal acts as a result of the defen-
dant’s negligent treatment . . . the wrongful conduct
rule would have no application.’’ Id., 386. The plaintiff
claims ‘‘[t]hat is precisely the case here’’ and argues
that Daniel’s false ‘‘statements are irrelevant to the diag-
nosis, and there is no direct causal link between the
statements of [Daniel] and the diagnosis of PTSD.’’ The
plaintiff contends that, based on the affidavits of his
expert witnesses, there are genuine issues of material
fact as to whether Daniel’s misrepresentation supported
a diagnosis of PTSD and whether Daniel sustained injur-
ies independent of the legal consequences of his crimi-
nal acts due to the defendants’ negligent diagnosis and
treatment. Therefore, according to the plaintiff, he is
entitled to a trial at which the fact finder can consider
his evidence that the causal nexus between Daniel’s
illegal conduct and his alleged injuries is insufficient
to bar recovery.
The defendants respond that, based on the submis-
sions made in connection with the motions for summary
judgment, Daniel’s injuries are, as a matter of law,
directly connected to his admitted illegal conduct, and,
therefore, the court properly granted summary judg-
ment on the basis of public policy. We agree with the
defendants.
Although the qualification in Greenwald on which
the plaintiff relies, standing alone, might suggest that
our Supreme Court limited application of the wrongful
conduct rule to injuries arising from the legal conse-
quences of a plaintiff’s wrongful conduct, we do not
read Greenwald so narrowly. Nor does the plaintiff
claim that Greenwald should be read so narrowly. See
footnote 10 of this opinion. The context of that state-
ment is important.
In Greenwald, the plaintiff only sought damages that
arose from the search of his home related to his contin-
ued viewing of child pornography almost two years
after the defendant stopped treating him. Greenwald v.
Van Handel, supra, 311 Conn. 372–73. In particular, he
alleged that, as a result of the search, he faced the
possibility of arrest and conviction and ‘‘being sen-
tenced to a term of imprisonment, serving a period of
probation, registering as a sex offender in the state’s
sex offender registry for an indeterminate period of time
and suffering the humiliation, publicity, embarrassment
and economic repercussions associated with being
arrested and/or convicted of downloading, viewing and/
or possessing child pornography.’’ Greenwald v. Van
Handel, Conn. Supreme Court Records & Briefs, Octo-
ber Term, 2013, Pt. 1, Record p. 6. Thus, the court was
faced only with a claim for damages arising out of
criminal conduct that the plaintiff engaged in after he
ceased treatment with the defendant. The court held
that permitting the plaintiff to pursue a claim against
the defendant for the consequences of his volitional
criminal conduct would violate public policy.
Greenwald v. Van Handel, supra, 311 Conn. 385. At the
same time, the court also recognized that the plaintiff
would not have been precluded from pursuing a claim
for injuries resulting from the defendant’s negligent
treatment that were not the consequence of his subse-
quent illegal conduct. Id., 386. Put differently, the illegal-
ity of the condition for which a patient seeks treatment
does not affect the duty of care a medical professional
owes to a patient.
For example, a medical professional treating a patient
for an opioid addiction owes the same duty of care to
the patient regardless of whether the patient obtained
the opioids legally or illegally. Society has an interest
in treating the patient’s addiction, whatever its cause,
and in ensuring that medical professionals providing
such treatment do so to the applicable standard of care.
For that reason, if a patient suffers injuries related to
his addiction, such as hospitalizations or worsening
health, due to the doctor’s breach of that duty of care,
the wrongful conduct rule would have no application
to claims stemming from such injuries. On the other
hand, if the patient commits a robbery to obtain money
to buy more opiates and suffers injuries arising from
his arrest, the wrongful conduct rule would apply to
preclude that patient from recovering for injuries aris-
ing from the robbery, regardless of whether the addic-
tion that led him to commit the robbery was the result
of illegal conduct. This reasoning is consistent with
the public policy of encouraging individuals to seek
treatment for illegal behavior, while not permitting an
individual who has chosen to continue to engage in
criminal conduct to shift the blame for that conduct
to others.
Thus, the court’s qualification in Greenwald as to
the legal consequences of criminal acts, on which the
plaintiff relies, must be understood in light of the partic-
ular claim asserted by the plaintiff in Greenwald and
in the context of the court’s other statements regarding
when illegal conduct bars recovery as a matter of public
policy. In this regard, the court first noted that it ‘‘has
recognized the common-law maxims that [n]o one shall
be permitted to profit by his own fraud, or to take
advantage of his own wrong, or to found any claim
upon his own iniquity, or to acquire property by his
own crime.’’ (Internal quotation marks omitted.) Id.,
376. Our Supreme Court cited two cases in which it
had applied these principles, and neither of those cases
involved injuries arising from the legal consequences
of criminal conduct. Id., 377; see also Thompson v.
Orcutt, 257 Conn. 301, 316, 777 A.2d 670 (2001) (con-
cluding ‘‘that the fraud committed by the plaintiff in
the bankruptcy court implicates an important public
interest that justifies the application of the doctrine of
unclean hands on public policy grounds’’); Solomon v.
Gilmore, 248 Conn. 769, 791, 731 A.2d 280 (1999) (hold-
ing that mortgage loan issued in violation of statutory
licensing requirement was unenforceable on public pol-
icy ground).
Furthermore, the court in Greenwald determined that
‘‘[t]he fundamental policy purposes of the tort compen-
sation system [namely] compensation of innocent par-
ties, shifting the loss to responsible parties or distribut-
ing it among appropriate entities, and deterrence of
wrongful conduct . . . would not be met by imposing
such liability on the defendant.’’ (Citation omitted; inter-
nal quotation marks omitted.) Greenwald v. Van Han-
del, supra, 311 Conn. 385–86.
Applying the principles endorsed by the court in
Greenwald to the undisputed facts of the present cases,
we conclude that the plaintiff’s claims fail as a matter
of public policy. Daniel did not seek treatment from
the defendants for a condition from which he suffered.
To the contrary, he misrepresented to the defendants
that he suffered from PTSD when he knew that he
did not. It is undisputed that his conduct constituted a
violation of § 21a-266 (a) and that the violation consti-
tuted a felony pursuant to § 21a-255 (c). Thus, Daniel’s
illegal conduct was intertwined with the alleged negli-
gent treatment by the defendants because that treat-
ment was simply part of and resulted from Daniel’s
fraud. Furthermore, the plaintiff’s criminal conduct did
not end with his acquisition of the medical marijuana
certificate but continued each time he obtained mari-
juana from a medical dispensary using the certificate
he fraudulently had obtained. See General Statutes § 21-
266 (a) (‘‘[n]o person shall obtain or attempt to obtain
a controlled substance or procure or attempt to procure
the administration of a controlled substance . . . by
fraud, deceit, misrepresentation or subterfuge’’).
Although the plaintiff seeks to limit Daniel’s illegal con-
duct to his fraud in inducing the diagnosis of PTSD,
this is not a case in which the defendants handed Daniel
marijuana after he lied to them. Instead, to the extent
Daniel suffered injuries from his use of medical mari-
juana, those injuries occurred because Daniel, after his
encounters with the defendants, engaged in the further
volitional criminal conduct of going to a medical dispen-
sary and fraudulently obtaining marijuana. For this rea-
son, Daniel cannot be described as an innocent party.
He played a central role in causing his claimed injuries.
Our conclusion is consistent with decisions from
other states, which we turn to in light of the scarcity
of relevant decisions in Connecticut. Price v. Purdue
Pharma Co., 920 So. 2d 479 (Miss. 2006), on which
Burnham relies, is instructive. In that case, a plaintiff
brought an action against various defendants, including
several doctors who had prescribed him the painkiller
OxyContin. Id., 481–82. The plaintiff asserted medical
malpractice claims against the doctor defendants,
claiming that he suffered injuries from ingesting the
drug. Id. The defendant doctors moved for summary
judgment pursuant to the wrongful conduct rule, and
the plaintiff, in opposing the motions, claimed only that
the defendant doctors breached the applicable standard
of care. Id., 483. The trial court granted summary judg-
ment for the defendant doctors, and the plaintiff
appealed. Id.On appeal, the Supreme Court of Mississippi affirmed
the judgment. The court noted that, ‘‘if the plaintiff is
a lawbreaker at the time of his injury, that alone is not
enough to bar the plaintiff from recovery. . . . The
injury must be a proximate result of committing the
illegal act. . . . The injury must be traceable to his own
breach of the law and such breach must be an integral
and essential part of his case. . . . The question is not
merely when the wrongdoing was done, but what
resulted from it. . . . [I]f a plaintiff actually requires
essential aid from his own illegal act to establish a claim,
he has no case.’’ (Citations omitted; internal quotation
marks omitted.) Id., 485.
Applying these principles, the court reasoned that
the plaintiff ‘‘absolutely requires the essential aid from
his own misdeeds to establish his claim. His violation
of the law is not merely a condition, but instead an
integral and essential part of his case and the contribut-
ing cause of his alleged injury.’’ (Emphasis in original.)
Id. The court emphasized that ‘‘[t]he undisputed fact
remains that [the plaintiff] obtained a controlled sub-
stance through his own fraud, deception, and subter-
fuge by misrepresenting his medical history and ongo-
ing treatment to those from whom he sought care. This
offense is the central point to every claim on which he
rested his already tenuous case, which therefore now
completely collapses.’’ Id., 486. Accordingly, the court
held ‘‘that the wrongful conduct rule in Mississippi pre-
vents a plaintiff from suing caregivers, pharmacies, and
pharmaceutical companies and laboratories for addic-
tion to a controlled substance which he obtained
through his own fraud, deception, and subterfuge.’’
(Internal quotation marks omitted.) Id.Similarly, in Orzel v. Scott Drug Co., 449 Mich. 550,
537 N.W.2d 208 (1995), a plaintiff brought a negligence
action against a defendant, a pharmacy, alleging that
the defendant was negligent in filling the plaintiff’s pre-
scriptions for Desoxyn, ‘‘a trade name for the chemical
methamphetamine, [which] is a schedule 2 controlled
substance . . . .’’ Id., 552. The defendant failed to con-
firm the plaintiff’s identity when filling prescriptions
that were written for individuals other than the plaintiff,
and it filled the prescriptions too frequently. Id., 569.
The jury returned a verdict for the plaintiff, but the
trial court granted the defendant’s motion for judgment
notwithstanding the verdict on the ground that the
plaintiff’s illegal acts of obtaining the drug without a
valid prescription barred his claims. Id., 557. On appeal,
the Supreme Court of Michigan had little difficulty con-
cluding that the plaintiff’s ‘‘illegal conduct is of the type
that warrants application of the wrongful-conduct rule.
By his own admissions, as well as that of his counsel,
[the plaintiff] repeatedly violated several provisions of
the controlled substances act when he obtained, pos-
sessed, and used Desoxyn without a valid prescription.’’
(Footnotes omitted.) Id., 562–63. The court then
addressed the plaintiff’s argument that the wrongful
conduct rule was inapplicable because his illegal con-
duct was not the cause of his injuries. Specifically, he
argued that, after years of abusing Desoxyn, he was
legally insane when he interacted with the defendant,
thereby excusing what otherwise would be illegal con-
duct. Id., 566. The court rejected this claim, concluding
that ‘‘the illegal conduct that [the plaintiff] engaged in
while he was sane served as ‘a’ proximate cause of his
asserted injuries. . . .
‘‘[The plaintiff’s] use of Desoxyn while he was sane
cannot be characterized as a separate transaction from
his use while he was insane, because his initial con-
sumption of the drug inevitably led to this subsequent
use while he was insane. Consequently, any injuries
that are a direct result of his use while he was insane
are also foreseeable consequences of his use while he
was sane.
‘‘The [plaintiff] inadvertently concede[s] the signifi-
cant causal relationship between [his] use of Desoxyn
while he was sane and his injuries insofar as [he] cannot
establish [his] cause of action without relying on it: [the
plaintiff’s] use of Desoxyn while he was sane directly
and proximately caused the insanity that [he] insist[s]
excuses portions of his illegal conduct, and, in turn,
precludes application of the wrongful-conduct rule. In
other words, [the plaintiff’s] use of Desoxyn while he
was sane is an integral and essential part of [his] case.
. . . [Thus, the plaintiff’s] use of Desoxyn while he was
sane serves as a proximate contributing cause of his
asserted injuries.’’ (Citation omitted; internal quotation
marks omitted.) Id., 567–68.
Notably, although the court found that the defen-
dant’s conduct ‘‘was seriously blameworthy’’; id., 569;
it determined that none of the limitations or exceptions
to the wrongful conduct rule applied and, therefore,
that the plaintiff’s claims were barred because they
were ‘‘based, at least in part, on [the plaintiff’s] illegal
conduct.’’ Id., 577.
The same reasoning applies in the present cases,
where the plaintiff’s claims arise from Daniel’s illegal
conduct in obtaining a controlled substance through
fraud. On the basis of the submissions presented to
the court in connection with the motions for summary
judgment, there is no genuine issue of material fact that
Daniel intentionally lied to the defendants to obtain
a PTSD diagnosis so that he could purchase medical
marijuana and that the plaintiff’s sole claim is that Dan-
iel’s injuries were caused by his use of the medical
marijuana that he illegally obtained. Given these undis-
puted facts, we reject the plaintiff’s characterization of
Daniel’s injuries as independent of, or collateral to, his
illegal conduct. Indeed, the record does not give rise
to a genuine dispute as to whether the injuries the
plaintiff alleges resulted from Daniel’s abuse of a con-
trolled substance are connected to obtaining that con-
trolled substance by fraud—that is precisely the risk
created by such conduct. Furthermore, the defendants’
alleged medical malpractice—misdiagnosing Daniel
with PTSD and certifying him for medical marijuana—
is exactly the result that Daniel sought to accomplish
through his illegal conduct. In other words, Daniel
achieved the outcome he desired through his fraud and
suffered injuries as a result. Thus, just as in Price and
Orzel, Daniel’s ‘‘violation of the law is not merely a
condition, but instead an integral and essential part of
his case and the contributing cause of his alleged
injury.’’ (Emphasis in original.) Price v. Purdue Pharma
Co., supra, 920 So. 2d 485; see also Orzel v. Scott Drug
Co., supra, 449 Mich. 568–69 (plaintiff’s conduct in ille-
gally obtaining and abusing controlled substance
‘‘serve[d] as a proximate contributing cause of his . . .
injuries’’ and thereby satisfied ‘‘the causation limitation
under the wrongful-conduct rule’’).
Furthermore, the plaintiff’s reliance on the opinions
of similar health-care providers opining that the defen-
dants caused Daniel’s injuries is misguided. As our
Supreme Court explained in Greenwald, the wrongful
conduct rule applies ‘‘only when he who seeks [the
court’s aid] has violated the law in connection with
the very transaction as to which he seeks legal redress.
Then aid is denied despite the defendant’s wrong.’’
(Emphasis altered; internal quotation marks omitted.)
Greenwald v. Van Handel, supra, 311 Conn. 386. The
rule is based on ‘‘the public policy consideration that
the courts should not lend assistance to one who seeks
compensation under the law for injuries resulting from
his own acts when they involve a substantial violation
of the law . . . . It simply means that proof of such
an injury would not demonstrate any cause of action
cognizable at law.’’ (Internal quotation marks omitted.)
Id., 385. Therefore, in considering whether the wrongful
conduct rule applies, the focus of the analysis is on the
plaintiff’s conduct to determine whether the plaintiff
‘‘violated the law in connection with the very transac-
tion as to which [the plaintiff] seeks legal redress.’’
(Emphasis in original; internal quotation marks omit-
ted.) Id., 386. As our Supreme Court concluded, ‘‘injur-
ies arising from volitional criminal conduct cannot, as
a matter of public policy, provide a basis for recovery.’’
Id., 387 n.10. Because there is no genuine issue of mate-
rial fact as to whether the plaintiff’s alleged injuries
arose from Daniel’s volitional criminal conduct, his
claims against the defendants are barred even if the
defendants were negligent.
The plaintiff nevertheless directs our attention to an
unpublished opinion from the Court of Appeals of Mich-
igan, in which the court, discussing the causal require-
ment, explained that ‘‘an exception to the wrongful
conduct rule exists where the wrongful conduct is only
collaterally or incidentally connected to the cause of
action so that the plaintiff may prove his case without
relying on the wrongful conduct. . . . Similarly, an
exception to the rule exists where the illegal conduct
is merely a condition and not a contributing cause of
the injury and where the plaintiff’s illegal conduct does
not give rise to both his cause of action and his criminal
responsibility.’’ (Citation omitted.) Marks v. Childress,
Docket No. 192638, 1997 WL 33330917, *2 (Mich. App.
December 30, 1997).
The plaintiff fails to discuss the facts involved in
Marks and, instead, simply states in conclusory fashion
that ‘‘[t]his is the case here, given that the plaintiff’s
experts have concluded that a diagnosis of PTSD should
not have been made based on Daniel’s false statements
and that the actual cause of Daniel’s injuries was [the]
defendants’ deviation from the standard of care in their
management of his care, independent of the false state-
ments. . . . Here, [Daniel’s] false statements are not
the basis of his cause of action; rather, it was medical
malpractice by the defendants in their decision to cer-
tify him for medical marijuana without adequate
grounds to do so, including the conduct[ing] of an ade-
quate investigation.’’ We are not persuaded.
In Marks, approximately one month after a plaintiff
stole a gun from a car, a defendant accidentally shot
the plaintiff with the stolen gun. Marks v. Childress,
supra, 1997 WL 33330917, *1. The plaintiff brought a
negligence action against the defendant, and the trial
court rendered judgment for the defendant pursuant to
the wrongful conduct rule. Id. On appeal, the court held
that the wrongful conduct rule did not apply, reasoning
that ‘‘[b]eing shot is a risk of being around any weapon,
not a risk that either arises from or is increased by the
gun’s stolen status.’’ Id., *2. The court determined that
‘‘the theft was only collaterally or incidentally con-
nected to [the] plaintiff’s negligence action and [the]
plaintiff could theoretically prevail on his claim without
ever mentioning from where the gun came. In other
words, the gun’s stolen status was only a condition and
not a contributing cause of [the] plaintiff’s injury and,
although the theft gives rise to [the] plaintiff’s criminal
responsibility, it did not give rise to his cause of action
against [the] defendant.’’ Id.
The present cases are distinguishable from Marks.
First, the plaintiff alleges that the defendants were negli-
gent in diagnosing Daniel with PTSD and in treating
him for that condition, all of which occurred during
his criminal act of attempting to obtain a controlled
substance by fraud. Thus, the defendants’ alleged negli-
gence occurred during the commission of the illegal
act in the present cases, whereas the plaintiff in Marks
was injured approximately one month after he stole the
gun during an incident unrelated to the theft.11 Second,
unlike the plaintiff’s theft of the gun in Marks, which
the court noted did not create or increase the risk of
being shot, Daniel’s wrongful conduct in the present
cases—lying to the defendants to convince them that
he suffered from PTSD so that he could obtain medical
marijuana and then illegally obtaining medical mari-
juana—undoubtedly created the risk that Daniel would
suffer injuries as a result of his volitional illegal conduct.
Contrary to the plaintiff’s suggestion, Daniel’s fraud
was not merely incidental to the defendant’s alleged
malpractice. His false statements to the defendants and
his subsequent use of the illegally obtained medical
marijuana are the factual underpinnings of his malprac-
tice claims. Given these factual distinctions, Marks is
of little assistance in the present cases.
The plaintiff also claims that ‘‘[s]imilar reluctance in
using the wrongful conduct rule to bar a recovery can
be found in Manning v. Noa, 345 Mich. 130, 76 N.W.2d
75 (1956), Cahn v. Copac, Inc., 198 So. 3d 347 (Miss.
App. 2015), [cert. denied, 202 So. 3d 613 (Miss. 2016)],
Tug Valley Pharmacy, LLC v. All Plaintiffs Below in
Mingo County, 235 W. Va. 283, 773 S.E.2d 627 (2015)
(rejecting wrongful conduct rule), and Buono v. Valen-
tino, Superior Court, judicial district of New Haven,
Docket No. CV-XX-XXXXXXX-S (July 21, 2020) (70 Conn.
L. Rptr. 123).
‘‘Given these authorities, and the record before this
court, the Greenwald ruling should be limited to its facts
and not relied on to bar plaintiff’s pursuit of legitimate
medical malpractice claims in this case.’’
Although the plaintiff fails to apply these authorities
to the facts presented here, we briefly address their
import. In Manning v. Noa, supra, 345 Mich. 132–33, a
plaintiff attended an illegal bingo game at a church and
was injured after the game had ended when she fell in
a hole while leaving the premises. A jury awarded her
damages, and the defendant appealed, claiming that the
plaintiff’s illegal conduct precluded her recovery. Id.,
133, 137. The Supreme Court of Michigan disagreed,
concluding that the illegal bingo game was incidental
to her injuries because, at the time of her injury, ‘‘[t]he
evening ha[d] come to a close and the day’s pursuits,
wicked or pure, [were] over.’’ Id., 134. The court rea-
soned that, although the plaintiff was on the premises
to attend the illegal bingo game, it was not sufficient
‘‘that some illegal act be a remote link in the chain of
causation.’’ Id., 137.
Similarly, in Buono v. Valentino, supra, 70 Conn. L.
Rptr. 123, a plaintiff brought a premises liability action
against a defendant, alleging that he fell due to unsafe
changes in the grade along the edge of a driveway cou-
pled with inadequate lighting. As a special defense, the
defendant claimed that the plaintiff’s action was barred
by the wrongful conduct rule because the plaintiff was
on the premises to purchase marijuana from one of the
tenants living there. Id. The plaintiff moved to strike
the special defense, arguing that there was no causal
nexus between his illegal conduct and his injuries. Id.The trial court granted the motion to strike, concluding
that ‘‘[t]he plaintiff’s illegal activity merely served as an
occasion for the injury, as opposed to being a proximate
contributing cause of [the plaintiff’s] asserted injuries.’’
(Internal quotation marks omitted.) Id., 125.
Both Manning and Buono involved premises liability
claims, and the plaintiffs’ illegal conduct was the reason
for their presence on the premises but did not alter
their status as invitees. Indeed, in the present cases,
if Daniel had fallen while walking into or out of the
defendants’ offices due to a defective stair or walkway,
there would be no connection between his illegal con-
duct and his injuries aside from explaining his presence
at the location. That, however, is not the case here.
Daniel’s criminal purpose was to be misdiagnosed with
PTSD so that he could obtain and use medical mari-
juana, and the plaintiff alleges that the cause of his
injuries was being misdiagnosed with PTSD and permit-
ted to use medical marijuana. Thus, unlike the illegal
bingo game in Manning or the illegal sale of marijuana
in Buono, Daniel’s illegal conduct is directly connected
to his injuries. Simply put, there is nothing incidental
about Daniel’s illegal conduct with regard to his injur-
ies.
Next, in Cahn v. Copac, Inc., supra, 198 So. 3d 349,
a decedent had been admitted to a defendant drug treat-
ment facility for his addiction to alcohol and prescrip-
tion medications. The decedent stole Suboxone from a
physician’s office at the facility and subsequently died
from an overdose of the drug. Id., 353. The plaintiffs
brought a wrongful death action against the treatment
facility, a physician, and two nurses, alleging that the
defendants were negligent in treating the decedent after
they knew that he had ingested Suboxone and that the
defendants’ negligent or criminal acts in storing and
dispensing Suboxone caused the decedent’s death. Id.,
361–63. The trial court rendered summary judgment for
the defendants pursuant to the wrongful conduct rule.
Id., 351.
On appeal, the Mississippi Court of Appeals reversed
the judgment, holding that the wrongful conduct rule
did not preclude the plaintiffs’ medical malpractice and
negligence claims. Id., 365. Central to the court’s holding
was its conclusion that the defendant treatment facility
had assumed a duty of care to the decedent to guard
against the foreseeable risk that a patient who was a
drug addict would attempt to obtain and abuse con-
trolled substances. Id., 361. The court reasoned that the
defendants were ‘‘paid to assist and treat [the decedent]
to help him overcome his drug addiction. . . . It is
foreseeable that patients for prescription-drug abuse
will attempt to secure prescription drugs if possible,
and the defendants had a duty to legally possess Subox-
one, to properly and securely store Suboxone, and to
restrict access to Suboxone from patients at [the treat-
ment facility]. Here, [the decedent’s] death resulted
from his addiction to and known propensity to abuse
prescription drugs, the very reason he was placed in
[the defendants’] care to begin with.’’ Id., 364–65.
In the present cases, however, Daniel was not under
the defendants’ care for drug abuse. Had that been the
case and had the defendants facilitated Daniel’s access
to additional drugs, our analysis would be different.
Instead, Daniel lied to the defendants to induce a diag-
nosis that would allow him to acquire a controlled sub-
stance by fraud. Consequently, as previously noted, the
present cases are more analogous to Price v. Purdue
Pharma Co., supra, 920 So. 2d 479, in which the Missis-
sippi Supreme Court applied the wrongful conduct rule
to bar recovery, than they are to Cahn.
Last, in Tug Valley Pharmacy, LLC v. All Plaintiffs
Below in Mingo County, supra, 235 W. Va. 283, multiple
plaintiffs brought an action against several pharmacies
and physicians alleging that the defendants negligently
prescribed controlled substances for the plaintiffs,
causing the plaintiffs to become addicted to the con-
trolled substances. On a certified question from the
trial court, the West Virginia Supreme Court of Appeals
declined to adopt the wrongful conduct rule and held
‘‘that a plaintiff’s immoral or wrongful conduct does
not serve as a common law bar to his or her recovery for
injuries or damages incurred as a result of the tortious
conduct of another. Unless otherwise provided at law,
a plaintiff’s conduct must be assessed in accordance
with [West Virginia’s] principles of comparative fault.’’
Id., 292. Our Supreme Court, however, reached a con-
trary conclusion in Greenwald. Specifically, the court
held: ‘‘[W]e agree with other jurisdictions that have
concluded that the mere availability of common-law
or statutory comparative negligence, which permits a
plaintiff to recover even if his own negligence contrib-
uted to his injuries; see General Statutes § 52-572h (b);
does not negate application of the wrongful conduct
rule.’’ Greenwald v. Van Handel, supra, 311 Conn. 384.
In sum, Daniel, by his own admission, accomplished
his criminal purpose when he obtained medical mari-
juana by lying to the defendants and suffered injuries
due to his use of the medical marijuana he wrongfully
acquired through his criminal deception. Accordingly,
we agree with the trial court that the undisputed facts
establish a direct causal connection between Daniel’s
injuries and his illegal conduct.
II
The plaintiff also claims that a genuine issue of mate-
rial fact exists as to whether Daniel’s conduct amounted
to ‘‘serious criminality.’’ We are not persuaded.
As previously noted in this opinion, the wrongful
conduct rule has been limited ‘‘to cases in which the
plaintiff’s injuries stem from conduct that is prohibited,
as opposed to merely regulated, by law, and the viola-
tion is serious or involves moral turpitude.’’ (Internal
quotation marks omitted.) Greenwald v. Van Handel,
supra, 311 Conn. 378.
In Orzel v. Scott Drug Co., supra, 449 Mich. 561, the
Supreme Court of Michigan explained that ‘‘[t]he mere
fact that a plaintiff engaged in illegal conduct at the
time of his injury does not mean that his claim is auto-
matically barred under the wrongful-conduct rule. To
implicate the wrongful-conduct rule, the plaintiff’s con-
duct must be prohibited or almost entirely prohibited
under a penal or criminal statute. . . .
‘‘In contrast, where the plaintiff’s illegal act only
amounts to a violation of a safety statute, such as traffic
and speed laws or requirements for a safe workplace,
the plaintiff’s act, while illegal, does not rise to the level
of serious misconduct sufficient to bar a cause of action
by application of the wrongful-conduct rule.’’
In the present cases, the court reasoned that ‘‘[t]he
plaintiff admits that Daniel’s conduct constituted a
felony but asserts that, under Greenwald, his conduct
must be a ‘serious’ felony and that there is a disputed
issue as to whether Daniel’s conduct was ‘serious.’ . . .
In describing the requisite nature of the plaintiff’s con-
duct in Greenwald, [our] Supreme Court used a number
of words and phrases including ‘serious felony,’ but
also ‘illegal,’ a ‘criminal act,’ ‘illegal conduct,’ ‘wrongful,’
‘conduct that is prohibited,’ ‘immoral,’ ‘felonious con-
duct,’ and ‘serious criminality.’ . . . The court in the
present case finds that [Daniel’s] conduct meets all of
these descriptions, and the undisputed admitted facts
establish that his conduct was serious.’’ (Citations omit-
ted; emphasis added.)
On appeal, the plaintiff argues that, ‘‘[a]lthough the
trial court found Daniel’s conduct to amount to serious
criminality, it also clearly admits that the undisputed
admitted facts merely establish that his conduct was
serious. Serious misconduct and serious criminality are
different standards. Given that Greenwald requires seri-
ous criminality before the wrongful conduct rule can
be applied, the trial court erred in applying the wrongful
conduct rule to this case when the undisputed admitted
facts establish only that Daniel’s conduct was serious.’’
(Internal quotation marks omitted.) We are not per-
suaded.
As noted by the trial court, the plaintiff conceded
that Daniel’s conduct in seeking to obtain medical mari-
juana by fraud constituted a felony, albeit an unclassi-
fied one. For that reason, the court addressed the only
disputed point—whether that felony was ‘‘serious’’ for
purposes of applying the wrongful conduct rule. On
appeal, however, the plaintiff offers no argument as to
why Daniel’s illegal conduct was not ‘‘serious’’ and,
instead, appears to concede this point by arguing that
‘‘the undisputed admitted facts establish only that Dan-
iel’s conduct was serious.’’ (Internal quotation marks
omitted.)
Given that the plaintiff presents no meaningful argu-
ment in support of his claim that a genuine issue of
material fact exists as to whether Daniel’s conduct
amounted to serious criminality, we decline to con-
struct one on his behalf. See Harris v. Bradley Memo-
rial Hospital & Health Center, Inc., 306 Conn. 304, 337,
50 A.3d 841 (2012) (‘‘this court will not make arguments
on behalf of parties that have declined to make any’’),
cert. denied, 569 U.S. 918, 133 S. Ct. 1809, 185 L. Ed.
2d 812 (2013). Nonetheless, we note that courts in other
jurisdictions have upheld the application of the wrong-
ful conduct rule where the illegal conduct at issue
involved violations of the state’s controlled substances
act. See Orzel v. Scott Drug Co., supra, 449 Mich. 561–64
(holding application of wrongful conduct rule appro-
priate where plaintiff illegally obtained and used con-
trolled substance); see also Price v. Purdue Pharma
Co., supra, 920 So. 2d 485–86 (holding that wrongful
conduct rule applied where plaintiff illegally obtained
and used prescription painkiller OxyContin). Thus,
given that there is no genuine issue of material fact
that Daniel’s conduct in fraudulently obtaining medical
marijuana constituted a violation of § 21a-266 (a) and
that such a violation constitutes a felony pursuant to
§ 21a-255 (c), we have no difficulty concluding that
Daniel’s violation of this state’s controlled substances
act warrants application of the wrongful conduct rule.
The judgments are affirmed.
In this opinion the other judges concurred.
1
General Statutes (Rev. to 2021) § 21a-408 (3) provides in relevant part:
‘‘ ‘Debilitating medical condition’ means (A) cancer, glaucoma, positive sta-
tus for human immunodeficiency virus or acquired immune deficiency syn-
drome, Parkinson’s disease, multiple sclerosis, damage to the nervous tissue
of the spinal cord with objective neurological indication of intractable spas-
ticity, epilepsy or uncontrolled intractable seizure disorder, cachexia, wast-
ing syndrome, Crohn’s disease, [post-traumatic] stress disorder, irreversible
spinal cord injury with objective neurological indication of intractable spas-
ticity, cerebral palsy, cystic fibrosis or terminal illness requiring end-of-life
care . . . or (B) any medical condition, medical treatment or disease
approved for qualifying patients by the Department of Consumer Protection
pursuant to regulations adopted under section 21a-408m . . . .’’
2
Daniel understood PTSD to be caused by ‘‘traumatic events in your life
that cause you to relive them in your mind.’’
3
The plaintiff brought the first action against Bettauer in August, 2018,
and the second action against Burnham in February, 2019.
4
As an alternative ground for summary judgment, Burnham asserted that
the plaintiff is unable to prove causation because Daniel’s deposition testi-
mony established that his access to medical marijuana was not the cause
of his injuries. Because the court held that the plaintiff’s action was barred
as a matter of public policy, the court did not consider this alternative claim.
On appeal, Burnham renewed his causation claim as an alternative ground
for affirming the judgment of the trial court. Because we conclude that the
court properly granted summary judgment on public policy grounds, we do
not consider the merits of Burnham’s alternative claim.
5
In the Bettauer action, the plaintiff submitted an affidavit from a clinical
psychologist, Kathleen Cairns, who opined that ‘‘the cause of the harm
and damage done to [Daniel] was a misdiagnosis of [PTSD] which was
erroneously made by [Bettauer]. . . . Whatever [Daniel] may have told [Bet-
tauer] to convince her to diagnose him with PTSD was not the reason for
her professional deviations from the standard of care.’’ In the Burnham
action, the plaintiff submitted an affidavit from a psychiatrist, Deepak Cyril
D’Souza, who opined that ‘‘Burnham’s deviations from the standard of care
. . . are the reasons Daniel was wrongfully diagnosed with PTSD and permit-
ted to purchase medical marijuana, not anything that Daniel may or may
not have told him about his past medical history.’’
6
General Statutes § 21a-266 provides in relevant part: ‘‘(a) No person shall
obtain or attempt to obtain a controlled substance or procure or attempt
to procure the administration of a controlled substance (1) by fraud, deceit,
misrepresentation or subterfuge . . . .
‘‘(b) Information communicated to a practitioner in an effort unlawfully
to procure a controlled substance, or unlawfully to procure the administra-
tion of any such substance, shall not be deemed a privileged communica-
tion.’’
7
In 2017, when Daniel sought a diagnosis from the defendants, marijuana
was classified as a schedule II controlled substance under the Connecticut
controlled substance scheduling regulations. See General Statutes (Rev. to
2017) § 21a-243 (e); see also Regs., Conn. State Agencies § 21a-243-8 (g)
(November 5, 2015).
8
General Statutes § 21a-255 (c) provides: ‘‘Any person who violates any
provision of sections 21a-243 to 21a-282, inclusive, for which no penalty is
expressly provided, (1) for a first offense, may be fined not more than three
thousand five hundred dollars or imprisoned not more than two years, or
be both fined and imprisoned, and (2) for any subsequent offense, shall be
guilty of a class C felony.’’
9
While these appeals were pending, the plaintiff filed a motion for articula-
tion in both actions, which the court denied. The plaintiff filed motions for
review of those decisions, and this court granted review but denied the
relief requested.
10
On appeal, the plaintiff concedes that ‘‘the wrongful conduct rule bars
a plaintiff’s recovery of damages in a civil case where there is no genuine
issue of material fact as to a sufficient causal nexus between the plaintiff’s
illegal conduct and his alleged injuries and when the plaintiff’s conduct
amounts to serious criminality.’’ (Internal quotation marks omitted.) Accord-
ingly, he does not address the four factors we typically consider in determin-
ing the extent of a legal duty as a matter of public policy: ‘‘(1) the normal
expectations of the participants in the activity under review; (2) the public
policy of encouraging participation in the activity, while weighing the safety
of the participants; (3) the avoidance of increased litigation; and (4) the
decisions of other jurisdictions.’’ (Internal quotation marks omitted.) Jarmie
v. Troncale, supra, 306 Conn. 603.
Nevertheless, we conclude that consideration of these factors supports
the court’s conclusion in the present cases. First, an individual who lies to
a doctor to obtain a prescription would not expect to be able to bring an
action against the doctor for believing his or her lies. Second, precluding
recovery in the present cases in which the patient committed fraud in seeking
treatment would not discourage patients from seeking medical care for real
medical conditions. Third, imposing a duty under the present circumstances
would result in increased litigation because it would allow individuals to
induce medical malpractice by falsely reporting symptoms and then bringing
an action against the doctor for injuries allegedly resulting from any misdiag-
nosis. Fourth, and finally, as will be discussed further in part I of this opinion,
the decisions of other jurisdictions support the denial of recovery when the
plaintiff has suffered injuries as the result of illegally obtaining a controlled
substance.
11
One judge dissented in Marks, reasoning that, ‘‘[b]ecause possession of
the firearm underlies any claim for liability in this case, public policy should
preclude this [c]ourt from lending its aid to [the] plaintiff, who, in effect,
bases his cause of action on his own illegal conduct.’’ Marks v. Childress,
supra, 1997 WL 33330917, *3 (Markey, J., dissenting).