Opinion
No. CV 02 0459499 S.
December 11, 2006.
MEMORANDUM OF DECISION
Before the court is the defendant Yale New Haven Hospital's motion for summary judgment.
The plaintiff, Jonathan Mulhern, filed a two-count complaint on January 9, 2002, against the defendant, Yale New Haven Hospital. In count one, the plaintiff alleges that the hospital was negligent in failing to conduct an HIV test on the arrestee, and, in count two, that the hospital violated General Statutes § 19a-582(e) by failing to perform an involuntary HIV test on the arrrestee. The hospital moves for summary judgment on count two on the ground that there are no genuine issues of material fact that: (1) the strict criteria set forth in § 19a-582(e)(5) for testing without consent were not met; (2) the hospital never received informed consent as required under § 19a-582(a) to perform the HIV test and the hospital has no affirmative duty to perform the test; and (3) the hospital's conduct was not "willful" within the meaning of General Statutes § 19a-590 to allow the plaintiff to bring a private right of action; therefore, the hospital is entitled to judgment as a matter of law.
On September 8, 1999, the plaintiff, a police officer for the town of North Haven, was admitted to the hospital to treat the injuries he received in an altercation with the arrestee, who was also admitted. The plaintiff alleges that the arrestee spit blood into his mouth, face and nose, and, because he was concerned about the possibility of contracting HIV, the plaintiff requested the hospital perform an immunodeficiency virus test (HIV) on the arrestee, which the hospital failed to do.
Section 19a-582(e) is a part of the AIDS statute, General Statutes § 19a-581 et seq. That subsection provides in relevant part: "[Informed consent is not required prior to testing for HIV] (5) [i]n cases where a health care provider or other person, including volunteer emergency medical services, fire and public safety personnel, in the course of his occupational duties has had a significant exposure, 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, (D) the patient's or person's physician . . . has approached the patient or person and sought voluntary consent and the patient or person has refused to consent to testing . . . (E) an exposure evaluation group determines that the criteria specified in subparagraphs (A), (B), (C), (D) and (F) of this subdivision are met and that the worker has a significant exposure to the blood of a patient or person and the patient or person . . . refuses to grant informed consent to an HIV test."
Section 19a-590 provides: "Any person, except as otherwise provided in this chapter, who willfully violates any provision of this chapter shall be liable in a private cause of action for injuries suffered as a result of such violation."
The criteria to obtain informed consent for the testing of HIV are set forth in § 19a-582(e)(5). In cases where public safety personnel have had a significant exposure to HIV in the course of their occupational duties, subsection (e) requires that public safety personnel: (1) complete an incident report within forty-eight hours of significant exposure to HIV; and (2) submit to a baseline HIV test within seventy-two hours of the exposure and be negative on that test. Only then is the hospital allowed to test the source individual for HIV without his or her informed consent. See § 19a-582(e)(5)(B) and (C).
In the present case, the hospital maintains and the plaintiff does not dispute that: (1) the plaintiff did not complete the required incident report within forty-eight hours and (2) he did not take the baseline HIV test within seventy-two hours as mandated by § 19a-582(e)(5). The plaintiff maintains instead that he submitted evidence in his affidavit and the hospital's medical records to demonstrate that the source patient gave oral consent to an HIV test. While consent is required under § 19a-582(a), the plaintiff's claim in count two is for a violation of subsection (e)(5) of § 19a-582. That subsection sets out the procedure to be followed whenever public safety personnel have had a significant exposure to HIV, but applies only if no consent by the source individual has been given. As such, for purposes of whether the hospital violated § 19a-582(e)(5), consent by the source patient is not relevant. For the summary judgment motion as to count two, the court will assume there was no informed consent. Consequently, there is no genuine issue of material fact that the strict criteria set forth in § 19a-582(e)(5) were not met, and, that the hospital is entitled to judgment as a matter of law that it did not violate § 19a-582(e)(5) by failing to perform the HIV test on the arrestee.
The hospital argues that had it tested the arrestee without fulfilling the criteria of § 19a-582(e)(5), it would be potentially liable to the arrestee.
The plaintiff further argues that the reason he did not comply with these two requirements was because the hospital failed to first test the source's blood, the prerequisite for the commencement of the statutory procedure that he was then required to follow. The hospital counters that, even if the statutory criteria in § 19a-582(e)(5) had been met by the plaintiff, he would still have no private cause of action against the hospital for a violation of that subsection because, pursuant to § 19a-590, the plaintiff did not provide any evidence that the hospital willfully violated the statute.
See note 3, supra.
In Doe v. Marselle, 236 Conn. 845, 675 A.2d 835 (1996), the Supreme Court stated: "[O]ur analysis of [ § 19a-590] is not limited solely to the words of the statute. Instead, we must also look . . . to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement and to its relationship to existing legislation and common law principles governing the same subject matter." (Internal quotation marks omitted.) Id., 850. "Consequently, in construing its meaning, we are guided by the language of § 19a-590, both alone and in the context of the AIDS statute, as well as the underlying legislative purpose of the harm at which it is directed." Id., 851. "The AIDS statute was designed and intended to combat the AIDS epidemic, beginning with protecting confidentiality. The legislation imposes certain requirements on the testing and treatment of persons who may be HIV positive or who have AIDS. These requirements relate principally to the areas of informed consent for HIV testing and confidential treatment of HIV-related information, and are aimed at helping health care providers to identify those people with the disease, to treat them and to educate them in an attempt to put an end to the epidemic in our state . . ." Id., 852.
There is no dispute that the hospital did not breach any confidentiality, namely, no HIV-related information was disclosed. To the contrary, the plaintiff's claim is based on the hospital not performing the test. The legislative intent, however, in passing the AIDS statute, was to protect confidentiality. Therefore, "to accomplish the [goal of protecting confidentiality,] disclosure of confidential HIV-related information is prohibited except in very limited and discrete circumstances [like those in § 19a-582(e)(5)]." Id., 854. Section 19a-582(e)(5) is an exception to the statutory prohibition on testing without informed consent. It allows a hospital to test, which is not the same as requiring them to. Section 19a-590 must be read with this intent in mind. The liability that § 19a-590 authorizes is limited to willful disclosures of HIV-related material only, not the failure to disclose or test. This is evident in reading the entire statutory scheme of the AIDS statute and specifically by comparing § 19a-582(e)(5) with General Statutes § 19a-583.
Section 19a-583 provides in relevant part: "(a) No person who obtains confidential HIV-related information may disclose or be compelled to disclose such information, except to the following . . . (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 [certain] criteria are met." (Emphasis added.) If any section of the AIDS statute authorizes liability for a failure to test or disclose, it is § 19a-583.
Under § 19a-583, however, the plaintiff would still not prevail. "Even health care providers or persons who engage in occupational therapy who have had significant exposure to HIV infection are not entitled to this information unless they satisfy the rigid criteria listed in § 19a-583(a)(7)." Doe v. Marselle, supra, 236 Conn. 854-55. The criteria in § 19a-583(a)(7) are the same as that in § 19a-582(e)(5), which, as previously discussed, was not fulfilled by the plaintiff.
Furthermore, "[w]here a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed." (Internal quotation marks omitted.) Asylum Hill Problem Solving Assn. v. King, 277 Conn. 238, 256, 890 A.2d 522 (2006). Prior to 1993, the language of § 19a-582(e)(5) was the same as § 19a-583(a)(7). In 1993, the legislature added the language "including volunteer emergency medical services, fire and public safely personnel" to § 19a-582(e)(5). See Public Act 1993, No. 93-291, §§ 3 though 5. This language was not added to § 19a-583(a)(7). If the legislature had wanted to expand the compelled reporting of § 19a-583(a)(7) to public safety personnel such as the plaintiff, the language, which was added to § 19a-582(e)(5) in 1993, would also have been added to § 19a-583(a)(7). Therefore, plaintiff cannot avail himself of this legislative action as § 19a-582(e)(5) does not impose a duty on the hospital to test and disclose HIV-related information to the plaintiff.
Additionally, even assuming that § 19a-582(e)(5) did impose a duty on the hospital, in the present case, summary judgment should still be granted because there is no genuine issue of material fact that the hospital's conduct was not "willful." "[S]ummary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated . . . The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 842, 888 A.2d 104 (2006). "Mere assertions of fact . . . are insufficient to establish the existence of a material fact . . ." (Internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004). "[E]ven with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992).
To claim a violation of § 19a-590, the plaintiff must show that the hospital's conduct was willful. "Willful has been defined in many ways, and the applicable definition often turns on the specific facts of the case and the context in which it is used." (Internal quotation marks omitted.) Doe v. Marselle, supra, 236 Conn. 851. In Doe, the Supreme Court opined that, for the purposes of § 19a-590, "willful [means] a knowing disclosure of confidential HIV-related information." Id., 860. There is no requirement that a plaintiff prove the disclosure was done with an intent to injure; only with knowledge. Id., 859.
"Although this court's research has failed to discover a definition of `knowing' in a civil context in our state's decisional law, `knowing' has been defined in Webster, Third New International Dictionary, as `with awareness' and having `cognizance or awareness.' " Pascarelli v. Corning Clinical Laboratories, Inc., Superior Court, judicial district of Danbury, Docket No. 0325312 (March 25, 1997, Moraghan, J.) ( 19 Conn. L. Rptr. 82, 84).
In the present case, there is no dispute that the hospital did not perform the HIV test. The plaintiff argues that whether this failure was "willful," or knowing, within the statute is a question of fact and not appropriate for summary judgment. See Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). In Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. 245, however, the Supreme Court affirmed a grant of summary judgment on the issue of bad faith when "the plaintiff had not provided any evidence that would raise a genuine issue relating to the bad faith of the hospitals." The court found that even "[a]n honest mistake does not rise to the level of bad faith." Id., 249.
In this case, the hospital submitted the certified affidavit of Stuart Warner to show that: (1) an exposure evaluation group was in place; and (2) after considering the circumstances, the group determined that the hospital was not authorized by the statute to perform the tests because the criteria of § 19a-582(e)(5) were not met. There was no evidence submitted that indicates bad faith on the part of the hospital. To the contrary, the evidence shows a good faith attempt to comply with the statute. In his response, the plaintiff failed to provide the court with any evidence that the hospital acted in bad faith. Rather, the plaintiff argues that the mere fact of failing to perform the tests is a "willful" violation that makes summary judgment inappropriate. This mere incantation of a state of mind is insufficient to raise a factual predicate in order to establish a genuine issue of fact. A bare assertion by the plaintiff standing alone that the hospital willfully violated the statute does not render summary judgment as to willfulness inappropriate. Rather the affidavit of Stuart Warner shows that the hospital considered the circumstances and determined that the statutory criteria were not met. The hospital did fail to perform the HIV test; however, under the circumstances herein, that is not a willful or knowing violation of the statute.
In Doe, a willful violation was when the hospital knew of the HIV status of a patient, and knowingly chose to disclose that information. Doe v. Marselle, supra, 236 Conn. 845. Knowing the plaintiff was concerned about HIV exposure, in the present case, is not the same as knowing the HIV status of a patient and choosing to disclose or not disclose it.
There is no genuine issue of material fact that the criteria of § 19a-582(e)(5) have not been satisfied. As such, the hospital is entitled to judgment as a matter of law that it did not violate the statute. Furthermore, the legislative history indicates that there is no private cause. Additionally, even if a cause of action was authorized, there has been no evidence submitted by the plaintiff to demonstrate the existence of a genuine issue of material fact that the hospital's conduct was a willful violation of the statute, as required by § 19a-590.
For the foregoing reasons, the hospital's motion for summary judgment as to counts one and two of the plaintiff's complaint is granted.