Opinion
No. 322668
October 18, 1995
MEMORANDUM OF DECISION
The plaintiff, a claimant in a pending worker's compensation proceeding, served a subpoena duces tecum on the commissioner of corrections demanding the plaintiff's personnel record, all "force reports" and incident reports filed by the plaintiff or other correctional officers while the plaintiff was on duty, and "[t]he names of all inmates held at the Bridgeport Correctional Facility between 4/18/86 and 4/30/91 who were known to have AIDS or the HIV virus." When the commissioner refused to comply, the plaintiff submitted an application to the superior court pursuant to General Statutes § 51-85 to compel compliance with the subpoena.
General Statutes "Sec. 51-85. Authority and powers of commissioners of the superior court. Each attorney-at-law admitted to practice within the state, while in good standing, shall be a commissioner of the superior court and, in such capacity, may, within the state, sign writs and subpoenas, take recognizances, administer oaths and take depositions and acknowledgments of deeds. Each such attorney may also issue subpoenas to compel the attendance of witnesses and subpoenas duces tecum in administrative proceedings. If, in any administrative proceeding, any person disobeys such subpoena or, having appeared in obedience thereto, refuses to answer any proper and pertinent question or refuses to produce any books, papers or documents pursuant thereto, application may be made to the superior court or any judge thereof for an order compelling obedience."
The plaintiff's application, dated March 8, 1995, was apparently served on the defendant and submitted to the clerk of the court for filing on March 10, 1995. Although it was stamped "filed", it was returned to the plaintiff's attorney with a cover page because it lacked an order to show cause. By pleading dated March 23, 1995, the defendant responded to the plaintiff's application. That response included a motion to quash the subpoena. The defendant's response was returned to the assistant attorney general handling the matter together with a cover page because there was no case pending.
On April 26, 1995, the plaintiff served the defendant with a second application. This application included an order that the defendant appear before the court on May 8, 1995 at 10:00 a.m. to show cause why the application should not be granted. Within one or two days of the state's being served, the assistant attorney general handling the matter called the court clerk's office to inquire as to whether the matter was pending. He was told by an assistant clerk that it was not pending. The assistant attorney general made two or three additional calls to the clerk's office and was told by an assistant clerk each time that the matter was not pending. An assistant clerk testified that if anyone called and inquired as to the status of the matter on or before May 1, 1995, she would be told that no such matter was pending. After May 1, an assistant clerk should have told the caller that the matter was pending, but by mistake might not have.
The matter proceeded on May 8, 1995 without the presence of the defendant. The court ( Rush, J.) granted the application. The state now seeks to vacate that order.
General Statutes § 52-212a provides in relevant part: "Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed." Practice Book § 326 is to the same effect. A motion under either section is addressed to the sound discretion of the court. Sanchez v. Warden, 214 Conn. 23, 35 (1990).
The plaintiff asserts that the issue before the court is one of "good faith" and that the defendant did not exercise it because he never called the plaintiff's attorney to ascertain whether he intended to prosecute his application on May 8, 1995. The issue is whether there exists a "good and compelling reason" to disturb the judgment. Hirtle v. Hirtle, 217 Conn. 394, 398, 586 A.2d 578 (1991); TLC Development, Inc. v. Planning Zoning Commission, 215 Conn. 527, 533-34, 577 A.2d 288 (1990); Gillis v. Gillis, 214 Conn. 336, 340-41, 572 A.2d 323 (1990); Sanchez v. Warden, 214 Conn. 23, 35, 570 A.2d 673 (1990); Acheson v. White, 195 Conn. 211, 214-15, 487 A.2d 197 (1985); Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983). It is true that the defendant's attorney could well have telephoned or otherwise corresponded with the plaintiff's attorney to determine if the matter was going to be pursued on May 8, 1995. Indeed, the defendant's attorney could have travelled from Hartford or Wethersfield to Bridgeport on May 8, 1995, the date of the supposed hearing. However, the court is persuaded that the defendant's attorney would have appeared but for the erroneous information he received from the court clerk on and after May 1, 1995. That attorney was entitled to rely on the information given him by the clerk as to the pendency of this matter, and the substantive rights of the defendant could not be nullified by the clerk by his simple mistake. Kron v. Thelen, 178 Conn. 189, 197, 423 A.2d 857 (1979); In re Valerie D., 223 Conn. 492, 534, 613 A.2d 748 (1992); Plasil v. Tableman, 223 Conn. 68, 76, 612 A.2d 763 (1992); Trip Falls Realty Holding Ltd. Partnership v. Board of Tax Review, 29 Conn. App. 97, 104, 612 A.2d 814 (1992); State v. Lytwyn, 27 Conn. Sup. 78, 80-81, 230 A.2d 40 (1967). As in Cholewinski v. Conway, 14 Conn. App. 236, 242, 540 A.2d 391 (1988), the defendant is entitled to open the judgment. Even if that were not "compelling" reason, the relief sought implicates an important public interest. The legislature has mandated that the release of confidential HIV-related information be narrowly circumscribed. See General Statutes §§ 19a-583, 19a-584, 19a-585. "It is the policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. The design of the rules of practice is both to facilitate business and to advance justice; `they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.'" Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978).
General Statutes "Sec. 19a-583. Limitations on disclosure of HIV-related information. (a) No person who obtains confidential HIV-related information may disclose or be compelled to disclose such information, except to the following: "(1) The protected individual, his legal guardian or a person authorized to consent to health care for such individual; "(2) Any person who secures a release of confidential HIV-related information; "(3) A federal, state or local health officer when such disclosure is mandated or authorized by federal or state law; "(4) A health care provider or health facility when knowledge of the HIV-related information is necessary to provide appropriate care or treatment to the protected individual or a child of the individual or when confidential HIV-related information is already recorded in a medical chart or record and a health care provider has access to such record for the purpose of providing medical care to the protected individual; "(5) A medical examiner to assist in determining the cause or circumstances of death; "(6) Health facility staff committees or accreditation or oversight review organizations which are conducting program monitoring, program evaluation or service reviews; "(7) A health care provider or other person in cases where such provider or person in the course of his occupational duties has had a significant exposure to HIV infection, provided the following criteria are met: (A) The worker is able to document significant exposure during performance of his occupation, (B) the worker completes an incident report within forty-eight hours of exposure, identifying the parties to the exposure, witnesses, time, place and nature of the event, (C) the worker submits to a baseline HIV test within seventy-two hours of the exposure and is negative on that test for the presence of the AIDS virus, (D) the patient's or person's physician or, if the patient or person does not have a personal physician or if the patient's or person's physician is unavailable, another physician or health care provider has approached the patient or person and sought voluntary consent to disclosure and the patient or person refuses to consent to disclosure, except in an exposure where the patient or person is deceased, (E) the worker would be able to take meaningful immediate action as defined in regulations adopted pursuant to section 19a-589 which could not otherwise be taken, (F) an exposure evaluation group determines that the criteria specified in subparagraphs (A), (B), (C), (D) and (E) of this subdivision are met and that a worker has a significant exposure to the blood of a patient or person and the patient or person or the patient's or person's legal guardian refuses to consent to release of the information. No member of the exposure evaluation group who determines that a worker has sustained a significant exposure and authorizes the disclosure of confidential HIV-related information nor the health facility, correctional facility or other institution nor any person in a health facility, correctional facility or other institution who relies in good faith on the group's determination and discloses the result shall have any liability as a result of his action carried out under this section, unless such persons acted in bad faith. If the information is not held by a health facility, correctional facility or other institution, a physician not directly involved in the exposure has certified in writing that the criteria specified in subparagraphs (A), (B), (C), (D) and (E) of this subdivision are met and that a significant exposure has occurred; "(8) Employees of hospitals for mental illness operated by the department of mental health if the infection- control committee of the hospital determines that the behavior of the patient poses a significant risk of transmission to another patient of the hospital. Disclosure shall only be allowed if it is likely to prevent or reduce the risk of transmission and no reasonable alternatives exist that will achieve the same goal and also preserve the confidentiality of the information. Such `reasonable alternatives' include counseling the patient concerning behaviors that pose a risk of transmission and other efforts to prevent or address the behaviors that pose a significant risk of transmission without disclosing the patient's HIV status or other confidential HIV-related information. Disclosure shall be limited to as few employees as possible and only to those employees with a direct need to receive the information to achieve the purpose authorized by this subdivision; " (9) Employees of facilities operated by the department of correction to provide services related to HIV infection or if the medical director and chief administrator of the facility determine that the behavior of an inmate poses significant risk of transmission to another inmate or has resulted in a significant exposure of another inmate of the facility. Such a disclosure shall only be made if it is specifically required to enable the inmate to receive such services or is likely to prevent or reduce the risk of transmission and no reasonable alternatives exist that will achieve the same goal and also preserve the confidentiality of the information. Such `reasonable alternatives' include counseling the inmate concerning behaviors that pose a risk of transmission or other efforts to prevent or address the behaviors that pose a significant risk of transmission without disclosing the patient's HIV status or other confidential HIV-related information. Disclosure shall be limited to as few employees as possible and only to those employees with a direct need to receive the information to achieve a purpose authorized by this subdivision; "(10) Any person allowed access to such information by a court order which is issued in compliance with the following provisions: (A) No court of this state shall issue such order unless the court finds a clear and imminent danger to the public health or the health of a person and that the person has demonstrated a compelling need for the test results which cannot be accommodated by other means. In assessing compelling need, the court shall weigh the need for disclosure against the privacy interest of the test subject and the public interest which may be disserved by disclosure which deters future testing or which may lead to discrimination. (B) Pleadings pertaining to disclosure of confidential HIV-related information shall substitute a pseudonym for the true name of the subject of the test. The disclosure to the parties of the subject's true name shall be communicated confidentially, in documents not filed with the court. (C) Before granting any such order, the court shall provide the individual whose test result is in question with notice and a reasonable opportunity to participate in the proceedings if he is not already a party. (D) Court proceedings as to disclosure of confidential HIV-related information shall be conducted in camera unless the subject of the test agrees to a hearing in open court or unless the court determines that a public hearing is necessary to the public interest and the proper administration of justice. (E) Upon the issuance of an order to disclose test results, the court shall impose appropriate safeguards against unauthorized disclosure, which shall specify the persons who may have access to the information, the purposes for which the information shall be used, and appropriate prohibitions on future disclosure; "(11) Life and health insurers, government payers and health care centers and their affiliates, reinsurers, and contractors, except agents and brokers, in connection with underwriting and claim activity for life, health, and disability benefits; and "(12) Any health care provider specifically designated by the protected individual to receive such information received by a life or health insurer or health care center pursuant to an application for life, health or disability insurance. "(b) No person, except the protected individual, his legal guardian or a person authorized to consent to health care for such individual, to whom confidential HIV-related information is disclosed may further disclose such information, except as provided in this section and sections 19a-584 and 19a-585." General Statutes "Sec. 19a-584. Informing and warning of known partners of possible exposure to the HIV virus. Disclosure of HIV-related information to public health officers. (a) A public health officer may inform or warn partners of an individual that they may have been exposed to the HIV virus under the following conditions: (1) The public health officer reasonably believes there is a significant risk of transmission to the partner; (2) the public health officer has counseled the protected individual regarding the need to notify the partner and the public health officer reasonably believes the protected individual will not inform the partner; (3) the public health officer has informed the protected individual of his intent to make such disclosure. The public health officer may also warn or inform a partner at the request of a protected individual. When making such disclosure to the partner the public health officer shall provide or make referrals for the provision of the appropriate medical advice and counseling for coping with the emotional consequences of learning the information and for changing behavior to prevent transmission or contraction of HIV infection. The public health officer shall not disclose the identity of the protected individual or the identity of any other partner. The public health officer, making a notification, shall make such disclosure in person, except where circumstances reasonably prevent doing so. The public health officer shall make a good faith effort to notify the partner of the risk of HIV infection. The public health officer shall have no obligation to warn or inform, identify or locate any partner. "(b) A physician may warn or inform a known partner of a protected individual if both the partner and the protected individual are under the physician's care or the physician may disclose confidential HIV-related information to a public health officer for the purpose of informing or warning partners of the protected individual that they may have been exposed to the HIV virus, under the following conditions: (1) The physician reasonably believes there is a significant risk of transmission to the partner; (2) the physician has counseled the protected individual regarding the need to notify the partner and the physician reasonably believes the protected individual will not inform the partner; (3) the physician has informed the protected individual of his intent to make such disclosure to the partner or public health officer. The physician may also warn or inform a partner at the request of a protected individual. When making such disclosure to the partner the physician shall provide or make referrals for the provision of the appropriate medical advice and counseling for coping with the emotional consequences of learning the information and for changing behavior to prevent transmission or contraction of HIV infection. The physician or public health officer shall not disclose the identity of the protected individual or the identity of any other partner. The public health officer or physician making a notification shall make such disclosure in person, except where circumstances reasonably prevent doing so. Upon receiving such a request for assistance, the public health officer shall make a good faith effort to notify said partner of the risk of HIV infection. The physician or public health officer shall have no obligation to warn or inform, identify or locate any partner. The physician shall have no obligation to disclose information to a public health officer for the purpose of warning or informing a partner. "(c) For purposes of this section, "public health officer" means an employee of the department of public health and addiction services designated by the commissioner or if authorized by the commissioner, a local health director, or his designee." General Statutes "Sec. 19a-585. Requirements for disclosure of HIV-related information. (a) Whenever confidential HIV-related information is disclosed it shall be accompanied by a statement in writing, whenever possible, which includes the following or substantially similar language: `This information has been disclosed to you from records whose confidentiality is protected by state law. State law prohibits you from making any further disclosure of it without the specific written consent of the person to whom it pertains, or as otherwise permitted by said law. A general authorization for the release of medical or other information is NOT sufficient for this purpose.' An oral disclosure shall be accompanied or followed by such a notice within ten days. "(b) Except for disclosures made to a federal, state, or local health officer when such disclosure is mandated or authorized by federal or state law or to persons reviewing information or records in the ordinary course of ensuring that a health facility is in compliance with applicable quality of care standards or any other authorized program evaluation, program monitoring or service review, a notation of all such disclosures shall be placed in the medical record or with any record of an HIV-related test result of a protected individual, who shall be informed of such disclosures upon request; provided for disclosures made to governmental agents requiring information necessary for payments to be made on behalf of patients or clients pursuant to contract or law, such notation need only be entered at the time the disclosure is first made. "(c) Nothing in this chapter shall limit a person's or agency's responsibility to report, investigate or disclose child protective services information pursuant to section 17a-101 and regulations adopted pursuant to said section. "(d) The provisions of subsections (a) and (b) of this section shall not be applicable to disclosures made pursuant to subdivision (11) of subsection (a) of section 19a-583. "(e) Except as provided in subparagraph (G) of subdivision (5) of subsection (e) of section 19a-582, nothing in this chapter shall prohibit the recording of HIV and AIDS-related information in the medical chart or medical records of a protected individual or the listing of AIDS, HIV-related illness or HIV infection in a certificate of death or autopsy report. This chapter shall not be construed to modify regulations relating to access to death certificates or autopsy reports. This chapter shall not be construed to modify the provisions of section 19a-25 or 19a-221."
This court expresses no opinion as to whether other persons may be necessary or indispensable parties to this proceeding.
The motion to vacate is granted.
BY THE COURT
Bruce L. Levin Judge of the Superior Court