Summary
denying summary judgment on negligence claim alleging failure to safeguard adequately the confidentiality of the plaintiff's protected health care information pursuant to duty imposed by common law and by HIPAA
Summary of this case from R.K. v. St. Mary's Med. Ctr., Inc.Opinion
No. FST CV 085008345S
August 25, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #154
FACTUAL BACKGROUND
The plaintiff in this matter, John Doe, has brought suit against the defendants Southwest Community Health Center, Inc. (Southwest), Raymond Raw, Bruce Cafora, Brian Becker, Deborah Alter (collectively the Southwest defendants), Arthur Africano, M.D. and Robert M. Skane. In the operating pleading which is the corrected third amended complaint dated December 12, 2009, the plaintiff alleges the following facts. At some time prior to 2007, the plaintiff, who was a parolee, completed an "intensive outpatient program" for substance abuse that was recommended by the plaintiff's parole officer, Robert Johnson. Following a conviction in traffic court, the plaintiff decided to participate in another substance abuse program in order to regain his driver's license. The plaintiff subsequently negotiated with Southwest, which is a health care center located in Bridgeport, for another mental health and substance abuse counseling program known as treatment plan number one. In the operative complaint, the plaintiff alleges that "[p]articipation in the Program was unrelated to [the] requirements of Plaintiff's parole" and the "Plaintiff was not required to disclose participation in the Program in advance to anyone, nor was he required to disclose where the course was to be taken." Nevertheless, the original draft agreement prepared by Southwest provided for the release of the plaintiff's participation and confidential information to third parties, including Johnson. After reading this provision, the plaintiff, who did not wish to waive his right to the confidentiality of his health information, demanded that this language be removed from the parties' agreement. Southwest agreed to delete this provision. On June 20, 2007, the parties signed the final version of the agreement for the plaintiff's health care and the plaintiff commenced participation in a program at Southwest.
The plaintiff in this action is using a pseudonym as authorized by Practice Book § 11-20A(h)(1).
As the only defendants who are parties to this motion for summary judgment, Southwest, Raw, Carfora, Becker and Alter will be referred to as "the defendants." Both Africano and Skane have filed separate motions for summary judgment.
The action was originally filed with Michel Moe as a defendant whose writing was indecipherable and therefore the identity could not be determined. Thereafter, on November 9, 2009, the plaintiff cited in Dr. Africanus as the medical provider. The plaintiff on December 13, 2009, again amended and cited in a new defendant, Dr. Africano, because there was a scribner's error. The proper defendant is Arthur Africano. He is only a defendant as to count two, breach of contract. Although Africano has filed a motion for summary judgment that is pending before this court, on June 17, 2010 Africano's counsel filed a suggestion of death indicating that Africano died during the week of June 7, 2010. As a result of Africano's death, the court no longer has jurisdiction to entertain his motion for summary judgment until the plaintiff has substituted the executor or administrator of his estate pursuant to General Statutes § 52-599. Accordingly, Africano's summary judgment motion is denied without prejudice to renew.
The operative complaint alleges that each of the individual defendants were either employees or agents of Southwest. Specifically, the complaint alleges that Raw was employed as the evening treatment coordinator, Carfora as a clinician, Becker as a clinical supervisor, Alter as a clinical supervisor, Africano as a "physician affiliated with Southwest who was a signatory in his individual capacity to an agreement with respect to the Program" and Skane as a state licensed clinical social worker, respectively.
On July 5, 2007, Raw called the plaintiff into his office where he was arrested by Johnson because of a misdemeanor summons. The plaintiff alleges that because "Southwest does a significant amount of parole required course business," employees of Southwest "disclosed information about Plaintiff to a parole officer without Plaintiff's permission in order to continue to cultivate that revenue stream." As a result of his arrest, the plaintiff alleges that he has suffered mental anguish and that his recovery from substance abuse has been "impeded by his general lack of trust of health care providers . . ." Accordingly, in count one, the plaintiff alleges claims against the defendants for violations of General Statutes §§ 52-146d-j inclusive, and § 52-146o, which are the statutes governing privileged communications between a patient and his psychiatrist and disclosure of patient communication by a physician, surgeon or health care provider.
Count one alleges that the defendants violated various federal privacy law, including 45 C.F.R. 164.502, 42 U.S.C. §§ 1320d- 5, 1320-6 (HIPAA) and 42 U.S.C. §§ 290dd- 2, 290aa-290ff and 290dd-2(a).
In counts two through four, the plaintiff alleges that during the negotiation of their contract, Southwest and the other defendant employees failed to disclose to the plaintiff that they believed themselves "to be a Federal entity governed by the provisions of the Federally Supported Health Centers Assistance Act ("FSHCAA") or the Federal Tort Claims Act ("FTCA"), which if true, might limit Plaintiff's right to redress for Southwest's misconduct and which Southwest had a duty to disclose." The plaintiff further alleges that the disclosure of the plaintiff's medical information by the defendant employees was outside the scope of their employment. Furthermore, the plaintiff alleges that the employees of Southwest had a duty to maintain and safeguard the confidentiality of the plaintiff's health care information under state and federal law; specifically, 45 C.F.R. § 164.502 (HIPAA) and General Statutes §§ 17a-688(c) and 52-146o. As such, counts two through four alleges claims for breach of contract, negligence and wanton and willful misconduct.
Finally, count five states a claim for intentional infliction of emotional distress against Raw. Specifically, count five alleges that: (1) Raw's conduct was extreme and outrageous in view of his role as health care provider, which is a position of great patient trust; (2) Raw knew or should have known that the plaintiff would likely suffer emotional distress as a result of his conduct; (3) Raw's conduct was a major cause of the emotional distress suffered by the plaintiff and (4) Raw's actions were outside the scope of his employment.
On January 26, 2010, the defendants filed a motion for summary judgment as to all counts, as well as a memorandum of law in support of their motion. Attached to the defendant's motion are the following pieces of evidence: (1) the sworn affidavit of Nancy Wiltse, who is Southwest's chief behavioral health officer; (2) the plaintiff's behavioral health department treatment plan dated June 29, 2007; (3) a document titled "Authorization to Obtain and Disclose Health Information" dated February 27, 2007; (4) Carfora's sworn affidavit; (5) Raw's sworn affidavit; (6) the sworn affidavit of Attorney Michael LaVelle, who is the defendant's counsel; (7) a document titled "Community Release Program Application" dated October 26, 2006; (8) a document outlining the conditions of the plaintiff's parole dated February 23, 2007; (9) a document titled "Remand to Actual Custody Order" dated July 5, 2007 and (10) a document outlining the violations of the plaintiff's parole dated July 6, 2007.
The plaintiff filed a memorandum in opposition to the defendant's motion on April 15, 2010. Attached to the plaintiff's opposition are: (1) the plaintiff's sworn affidavit; (2) the notarized affidavit of Attorney Roger Lee Crossland, who is the plaintiff's counsel; (3) the plaintiff's first evaluation report dated February 28, 2006; (4) the plaintiff's evaluation outcome report dated March 15, 2006; (5) the plaintiff's relapse prevention plan dated May 22, 2006; (6) an authorization to obtain and disclose health information dated February 27, 2007; (7) a document titled "evaluation outcome report" dated March 14, 2007; (8) a document detailing Southwest's privacy practices dated March 14, 2007; (9) a document from Southwest titled "patient's rights" dated March 14, 2007; (10) the plaintiff's treatment plan dated March 14, 2007; (11) the plaintiff's treatment status report dated April 20, 2007; (12) a document from the department of motor vehicles outlining its substance abuse treatment program; (13) a document titled "Behavioral Health Department" treatment plan dated June 20, 2007; (14) certified excerpts from Raw's deposition transcript; (15) a psychiatric report of the plaintiff completed by Justin O. Schechter, M.D. dated June 29, 2009; (16) certified excerpts from Carfora's deposition and (17) a police incident report dated July 3, 2007. The court heard oral argument in this matter at short calendar on June 22, 2010.
The plaintiff also redocketed his opposition on June 17, 2010. This is the same document as that filed with the court on April 15, 2010.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
The defendants first contend that the court should grant summary judgment as to count one, "statutory tort," in which the plaintiff alleges that he is entitled to relief under a number of different state and federal privacy statutes. In their memorandum of law, the defendants argue that none of the statutes cited in the plaintiff's complaint prohibit an employee of Southwest from making a verbal statement regarding whether an individual is at a health care facility. In response, the plaintiff argues that the statutes and regulations listed in count one do prohibit the defendants from releasing the plaintiff's presence at Southwest to third parties without the plaintiff's consent. According to the plaintiff, the defendant's violation of these statutes constitutes negligence per se.
In count one, the plaintiff alleges that the defendants violated a litany of state and federal privacy statutes. Although the heading of this count indicates that the plaintiff is alleging that the defendants violated General Statutes § 52-146d-j inclusive and General Statutes § 52-146o, the operative complaint is not specific as to which statute that the plaintiff is basing his cause of action. A close examination of these statutes, however, reveals that virtually none of them relate to the facts alleged by the plaintiff. Section 52-146e provides in relevant part: "(a) All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146f to 52-146i, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative." (Emphasis added.) The phrase "communications and records" is defined in § 52-146d(a)(2) as meaning "all oral and written communications and records thereof relating to diagnosis or treatment of a patient's mental condition between the patient and a psychiatrist, or between a member of the patient's family and a psychiatrist, or between any of such persons and a person participating under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment, wherever made, including communications and records which occur in or are prepared at a mental health facility." The plaintiff is not alleging that the defendants revealed any of his communications or records; rather, the plaintiff alleges that the defendants revealed his presence at Southwest to a third party.
As noted by the defendants in their memorandum of law, the plaintiff's failure to identify the relevant statute in a clear manner is a violation of Practice Book § 10-3. Nevertheless, "our courts repeatedly have recognized that the rule embodied in Practice Book § 10-3 is discretionary and not mandatory . . . As long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery." (Internal quotation marks omitted.) Burton v. Stamford, 115 Conn.App. 47, 65, 971 A.2d 739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009).
Similarly, § 52-146f provides certain exceptions to this general rule of non-disclosure, § 52-146g discusses access to records by persons engaged in research, § 52-146h involves the transfer of information to the commissioner of mental health and addiction services and § 52-146j authorizes judicial relief for any person aggrieved by these sections. The only potentially relevant statute in this portion of the General Statutes is § 52-146i, which mandates that records be labeled as confidential. Indeed, the plaintiff does allege in count one that the defendants failed to label his records appropriately. Nevertheless, the plain language of the statute indicates that it only applies to "written communications or records disclosed to another person or agency . . ."§ 52-146i. Again, the plaintiff does not allege that the defendants disclosed any of his written communications or records.
The plaintiff also alleges that the defendants violated § 52-146o, which provides in relevant part: " in any civil action or any proceeding preliminary thereto or in any probate, legislative or administrative proceeding, a physician or surgeon . . . shall not disclose (1) any communication made to him by, or any information obtained by him from, a patient or the conservator or guardian of a patient with respect to any actual or supposed physical or mental disease or disorder or (2) any information obtained by personal examination of a patient, unless the patient or his authorized representative explicitly consents to such disclosure." (Emphasis added.) By its plain language, this statute only forbids a physician or surgeon from disclosing a patient communication during some type of civil legal proceeding, which is not alleged in this case. In fact, the closest applicable type of civil legal proceeding, would be a criminal case because the defendants claim that they released this information in connection with the plaintiff's parole. The Appellate Court has clearly ruled that § 52-146o does not apply in criminal proceedings. State v. Anderson, 74 Conn.App. 633, 653-54, 813 A.2d 1039, cert. denied, 263 Conn. 901, 819 A.2d 837 (2003). Accordingly, for all of these reasons, none of the statutes relied upon by the plaintiff in count one are applicable to the facts alleged in the operative complaint.
Section 52-146o also does not expressly authorize a private cause of action. At least one Superior Court judge has ruled that a plaintiff has no private right of action under this statute. Meade v. Orthopedic Associates of Windham County, Superior Court, judicial district of Windham, Docket No. CV 06-4005043 (December 27, 2007, Beach, J.).
In the body of count one, the plaintiff also alleges that the defendants have violated HIPAA, 42 U.S.C. § 290aa-290ff and 42 U.S.C. § 290dd-2(a). Despite the plaintiff's reference to these seemingly applicable statutes, "courts have repeatedly held that Congress did not intend to create a private cause of action under HIPAA." Fisher v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV 04 4003207 (April 3, 2006, Munro, J.) ( 41 Conn. L. Rptr. 137) citing, Logan v. Dept. of Veterans Affairs, 357 F.Sup.2d 149, 155 (D.D.C. 2004). Similarly, 42 U.S.C. § 290dd-2 does not allow for a plaintiff to bring a private cause of action. Chapa v. Adams, 168 F.3d 1036, 1038 (7th Cir. 1999), cert. denied, 528 U.S. 839, 120 S.Ct. 104, 145, 145 L.Ed.2d 88 (1999). Because count one fails to allege any applicable state or federal statute that prohibits the conduct alleged in this count and would allow the plaintiff to state a claim for the statutes violation, summary judgment is appropriate for this count.
In an attempt to save this count, the plaintiff argues in his memorandum of law that count one is actually alleging negligence per se, as opposed to claims brought pursuant to the cited statutes. An examination of the language of count one reveals that the plaintiff fails to use the word "negligence" anywhere in count one, or other similar phrases indicating that this count is really alleging negligence per se. Moreover, in paragraph thirty of count one, the plaintiff alleges that he is "invok[ing] judicial relief under C.G.S. § 52-146j," which also suggests that the plaintiff intended count one to allege statutory causes of action as opposed to negligence per se. The fact that the plaintiff has a separate count for negligence lends further credence to the conclusion that count one was not meant to allege negligence per se. Consequently, the court grants the motion for summary judgment in favor of the defendants as to count one.
Next, the defendants move for summary judgment on count two, breach of contract, which alleges that the parties had a contract that did not allow the defendants to release the plaintiff's presence at Southwest to third parties. The defendants argue that the treatment plan is silent as to a waiver provision and the only document between the parties that discusses waiver is the authorization form, wherein the plaintiff agreed to waive his confidentiality. In response, the plaintiff argues that the parties entered into an agreement comprised of several documents, including the treatment plan and corresponding documents that outlined Southwest's privacy practices. The plaintiff further argues that there is a question of fact as to whether the signed authorization form covered the type of treatment that the plaintiff was receiving on the date of the subject incident, as well as the plaintiff's location in the facility.
In paragraphs twenty-eight through thirty of his affidavit, the plaintiff attests that "[t]he original draft agreement prepared by Southwest for the DMV Treatment Plan did not make clear that I had completed my parole-required IOP program which provided the release of certain specific information regarding my participation to third parties, in particular Parole Officer Robert Johnson . . . I demanded the provision for release of information to this parole officer be deleted . . . Southwest acceded to that bargained for deletion from the DMV treatment program." The parties then signed a treatment plan that did not include an authorization to release information to Johnson. In paragraphs thirty-seven and thirty-eight of his affidavit, the plaintiff further attests that "I signed the DMV Treatment Plan on the premises of Southwest Community and all the treatment/counseling occurred on the premises of Southwest Community . . . I had been provided written documentation of Southwest Community's patient's rights representations, on more than one occasion prior to treatment counseling on the premises of Southwest Community." Furthermore, the addendum to Southwest's privacy policy states as follows: "Generally, the program may not say to a person outside the program that a patient attends the program, or disclose any information identifying a patient as an alcohol or drug abuser . . ." If construed in a manner most favorable to the non-moving party, these attestations and documentary evidence could lead a trier of fact to conclude that the general policy of Southwest was not to disclose information regarding patient participation to third parties, that both the plaintiff and Southwest knew of this fact and it was made an implicit part of the agreement to provide treatment to the plaintiff. Although the defendants strongly disagree with this interpretation, there are outstanding issues of fact that could lead a trier of fact to conclude that the parties had a contract in which the defendants agreed not to release the plaintiff's presence at the defendants' facility.
The defendants also argue that the disclosure of the plaintiff's identity was not a breach of contract because they had an authorization from him to do so. An examination of the evidence provided by the parties reveals the following undisputed facts in regard to the subject authorization. Sometime prior to February 2006, the plaintiff was placed on parole for the offense of possession of narcotics. As a condition of his parole, the plaintiff had to submit to substance abuse treatment conducted at Southwest. On February 27, 2007, the plaintiff signed a standard disclosure from allowing Southwest to release information regarding the plaintiff's treatment to his parole officer, Robert Johnson of the Bridgeport Parole office. This form provided a list of certain types of information that could be disclosed. When signing the form, the plaintiff checked the boxes next to the following types of information: (1) Psychiatric Evaluation; (2) Treatment Status Report; (3) Discharge Summary and; (4) Other. In the "other" section, there are handwritten annotations stating "Evaluation outcome" and "legal." According to the form, the authorization expired on August 27, 2007. In his affidavit, the plaintiff attests that he completed this treatment, called "IOP" treatment, on April 20, 2007. Nevertheless, the plaintiff was still on parole.
The plaintiff also subsequently obtained treatment at Southwest in an attempt to satisfy conditions to regain his suspended driver's license from the department of motor vehicles. This treatment program is reflected in a document titled "Behavioral Health Treatment Plan" that the plaintiff signed on June 20, 2007. At the top of the document is the following statement: "The client has already completed IOP treatment. He is coming to treatment to comply with the law concerning the return of his drivers[sic] license. He will attend eight sessions." This form is silent as to whether the authorization to disclose the plaintiff's information also covered this treatment, which the plaintiff contends was not related to his probation. In his affidavit, the plaintiff attests that "the original draft agreement prepared by Southwest for the DMV Treatment plan did not make clear that I had completed my parole-related IOP program which provided for the release of certain specific information regarding my participation to third parties, in particular Parole Officer Robert Johnson . . . I demanded the provision for release of information to this parole officer be deleted . . . Southwest acceded to that bargained for deletion from the DMV Treatment Plan."
If viewed in a light most favorable to the non-moving party, the notation on the top of the "Behavioral Health Treatment Plan" document indicating that the IOP treatment plan had ended, and the plaintiff's attestation that he specifically requested that Johnson not be told about his participation in the program, raise questions of fact as to whether the February 27, 2007 authorization applied to the treatment that the plaintiff was receiving on the date of the subject incident. The authorization form that the plaintiff signed on February 27, 2007 also did not specifically list that the plaintiff gave permission for Southwest to tell Johnson whether he was currently in the facility. Consequently, the defendants have failed to demonstrate that there are no genuine issues of material fact as to whether the plaintiff authorized agents or employees of Southwest to disclose that he was on the premises of Southwest to his parole officer on July 5, 2007. Therefore, the motion for summary judgment is denied as to count two.
The plaintiff alleges in count three that the defendants were negligent because they failed to safeguard adequately the confidentiality of the plaintiff's protected health care information. Specifically, count three alleges that the defendants "had a duty to maintain the confidentiality of plaintiff's protected health care information under common law, and under Federal law; specifically HIPAA, 45 C.F.R. § 164.502," as well as General Statutes §§ 17a-688(c) and 52-146o. The defendants argue that they are entitled to summary judgment on this count because: (1) there is no common law privilege for communications between a patient and a physician in Connecticut; (2) the existence of a statutory remedy precludes a common law cause of action, and therefore, the plaintiff had to report the alleged HIPAA violations to the appropriate federal agency; (3) § 17a-688(c) is limited to the disclosure of the identity, diagnosis or treatment of a patient, which does not include his mere presence and (4) Southwest had a signed authorization to disclose the plaintiff's information. In response, the plaintiff argues that Connecticut law allows plaintiffs to bring negligence actions for the disclosure of confidential information wrongly divulged by psychiatrists, counselors and social workers. The plaintiff further argues that the defendants knew that they had a duty to keep the plaintiffs presence as a patient a secret, as demonstrated by Southwest's written documents describing patient's rights. Accordingly, the plaintiff argues that there are genuine issues of material fact regarding this count.
Section 17a-688(c) provides: "No person, hospital or treatment facility may disclose or permit the disclosure of, nor may the department disclose or permit the disclosure of, the identity, diagnosis, prognosis or treatment of any such patient that would constitute a violation of federal statutes concerning confidentiality of alcohol or drug patient records and any regulations pursuant thereto, as such federal statutes and regulations may be amended from time to time. The department shall adopt regulations, in accordance with chapter 54, to protect the confidentiality of any such information that is obtained by the department. In their memorandum of law, the defendants suggest that § 17a-688(c) is completely inapplicable to the present case because this statute only applies to the disclosure of the "identity, diagnosis, or prognosis" of a patient. The defendants apparently are contending that divulging a patient's presence is not the same as revealing his identity. This statutory interpretation is extremely narrow. Revealing to a third party that an individual is admitted into a facility is tantamount to revealing his identity, which is a violation of § 17a-688(c). The conduct alleged by the plaintiff could also amount to a violation of federal regulation; see, e.g. 42 C.F.R. § 2.13(c); And, therefore, it is an open question as to whether § 17a-688(c) applies to the conduct alleged in the operative complaint.
In particular, in the instant matter, because of the facility and the type of treatment provided to its' patients, revealing the presence of the individual could be tantamount to revealing the condition and general treatment being provided to an individual.
42 C.F.R. § 2.13(c) provides: "The presence of an identified patient in a facility or component of a facility which is publicly identified as a place where only alcohol or drug abuse diagnosis, treatment, or referral is provided may be acknowledged only if the patient's written consent is obtained in accordance with subpart C of these regulations or if an authorizing court order is entered in accordance with subpart B of these regulations. The regulations permit acknowledgement of the presence of an identified patient in a facility or part of a facility if the facility is not publicly identified as only an alcohol or drug abuse diagnosis, treatment, or referral facility, and if the acknowledgement does not reveal that the patient is an alcohol or drug abuser."
At the current time, it is an open question as to whether § 17a-688(c) allows for a private right of action for civil damages. See Skakel v. Benedict, 54 Conn.App. 663, 686 n. 11, 738 A.2d 170 (1990). Nevertheless, in certain instances, the duty element of a negligence action can be established by the requirements of a statute. Shukis v. Board of Education, 122 Conn.App. 555, 579 (2010) (stating the "[a] duty to use care may arise . . . from a statute"). Connecticut courts have also allowed a plaintiff to maintain a negligence claim for the violation of other privacy statutes. See, e.g. Skrzpiec v. Noonan, 228 Conn. 1, 3-4, 633 A.2d 716 (1993) (negligence action brought for wrongful disclosure of confidential information in violation of §§ 52-146d and 52-146e). In the present case, the plaintiff's allegations that the mandates of § 17a-688(c) create a duty permits the plaintiff to claim a cause of action in negligence stemming from the failure to follow statutory mandates.
In Skakel, the Appellate Court stated the following: "our holding is limited to the conclusion that § 17a-688(c) authorizes the plaintiff to maintain a right of action for injunctive relief. We express no opinion concerning whether this statute affords a private right of action for monetary damages or other remedies." Id., 686 n. 11. Additionally, at least one Superior Court judge has determined that there is no private right of action for civil damages under § 17a-688(c). Meade v. Orthopedic Associates of Windham County, Superior Court, judicial district of Windham, Docket No. CV 06 4005043 (December 27, 2007, Booth, J.).
Having made this observation, the remaining arguments by the defendant in favor of the summary judgment on this count become unavailing. Even though it is true that there is no common-law physician-patient privilege in Connecticut, this does not prevent the plaintiff from stating a claim for negligence stemming from violations of § 17a-688(c). Furthermore, although there is a general rule that the existence of a statutory remedy precludes a plaintiff from bringing a common-law claim, this argument is immaterial as to § 17a-688(c) because, as noted by the Appellate Court, this statute has no administrative or judicial enforcement mechanism from which a plaintiff could seek relief other than obtaining an injunction. Skakel v. Benedict, supra, 54 Conn.App. 688. Finally, this court has already rejected the defendants' contention that it is clearly established that there was an authorization form in existence that covered the disclosure alleged in this case. As the court has determined that the plaintiff has adequately alleged that the defendants had a duty not to disclose his presence at Southwest, whether the defendants negligently violated this duty is a question of fact for the jury. Therefore, the motion for summary judgment as to count three is denied.
Next, the defendants move for summary judgment on count four, which alleges willful or wanton misconduct. The defendants argue that they could not have engaged in highly unreasonable conduct because they checked for the existence of a signed authorization form before they disclosed the plaintiff's presence at Southwest. Moreover, the defendants contend that their actions were not highly unreasonable because the plaintiff still had the status of an inmate, and, therefore, had a lower expectation of privacy than the general public. The plaintiff counters these positions by arguing that the defendants "violated Plaintiff John Doe's right to confidentiality in a very deliberate and public way, in a manner manipulated for maximum humiliation." The plaintiff also points to the fact that Raw admitted in his deposition that he never looked at the second authorization form and he then failed to inform the plaintiff that Johnson had called inquiring about his whereabouts. Raw subsequently allowed the plaintiff to be arrested, handcuffed and taken away from Southwest in view of the plaintiff's fellow patients. The plaintiff contends that the reason for the insertion of this count is so that he can obtain punitive damages from the various defendants.
"[A] count based on reckless and wanton misconduct must, like an action in negligence, allege some duty running from the defendant to the plaintiff . . . In order to establish that the conduct of a defendant, who was under such a duty, was deliberate, wanton and reckless, the plaintiff must prove . . . the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Citation omitted; internal quotation marks omitted.) Vitale v. Kowal, 101 Conn, App. 691, 698-99, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007). "It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion and more than mere thoughtlessness or inadvertence, or simply inattention . . ." (Internal quotation marks omitted.) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn.App. 22, 38, 830 A.2d 240 (2003).
As previously discussed, there are outstanding issues of fact regarding the applicability of the authorization form that the plaintiff signed on February 27, 2007. Therefore, the defendants cannot obtain summary judgment on this count simply be arguing that there was a valid authorization form in place. Moreover, Raw testified in his deposition that he did not even look at the plaintiff's chart to see if the plaintiff had executed an authorization. This is an intentional act that arguably could have been done with reckless disregard for the plaintiff's privacy rights. Although the plaintiff's allegations that this omission amounted to wilful or wanton misconduct may seem hyperbolic, Raw's state of mind is an issue of fact for the jury. "[S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn, deal with questions of motive, intent and subjective feelings and reactions . . . It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given to their testimony can be appraised." (Internal quotation marks omitted.) Barasso v. Rear Still Road, LLC, 81 Conn.App. 798, 806, 842 A.2d 1134 (2004).
The defendants also argue that they are entitled to summary judgment on this count because individuals on parole have a lower expectation of privacy and the plaintiff "in any case was specifically required to submit to instructions of his parole officer, and to report to the parole officer whenever and wherever directed." The only case that the defendants cite in favor of this proposition in State v. Fuessenich, 50 Conn.App. 187, 717 A.2d 801 (1998), cert. denied, 247 Conn. 956, 723 A.2d 813, cert. denied, 527 U.S. 1004, 119 S.Ct. 2339, 144 L.Ed.2d 236 (1999). Although Fuessenich does state that people on probation have a diminished expectation of privacy because of their probationary status and that these individuals may be forced to divulge information to their probation officer that an ordinary citizen would not have to reveal, this does not necessarily mean that a third party has a duty to turn over this information to a parole officer. As such, the plaintiff's status as a parolee does not conclusively establish that the defendants acted reasonably. In fact, one could imagine scenarios where a health care worker's decision to turn over information to a parole officer would be highly unreasonable conduct. Accordingly, the defendants have failed to establish that they are entitled to judgment as a matter of law on count four.
Finally, Raw moves for summary judgment on count five alleging intentional infliction of emotional distress. Raw argues that even if viewed in a light most favorable to the non-moving party, the wrongful actions alleged by the plaintiff do not constitute conduct beyond that which is tolerable in a civil society. As such, Raw contends that the plaintiff has not satisfied the "extreme and outrageous" element of bringing a claim for intentional infliction of emotional distress. Consequently, Raw argues that this court should perform its gatekeeper function and determine that summary judgment should enter in his favor on count five. The plaintiff responds that the following conduct demonstrates that Raw should be held liable for intentional infliction of emotional distress: "Raw ignored the Second Authorization . . . did not talk with the Plaintiff prior to ambushing Plaintiff with four public safety officers using a pretext and then lead him from Southwest Community's premises in handcuffs in actual view, and potential view, of Plaintiff John Doe's fellow session attendees." Furthermore, the plaintiff argues that there are outstanding issues of fact that precludes the court from entering judgment as a matter of law in Raw's favor.
"In order for the plaintiff to prevail in a case for liability under . . . [intention infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). The extreme and outrageous element is only satisfied "where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to the average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citation omitted; internal quotation marks omitted.) Id., 443. Determining "[w]hether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury." (Citation omitted.) Hartman v. Gulf View Estates Homeowners Ass'n., Inc., 88 Conn.App. 290, 295, 869 A.2d 275 (2005).
At most, the plaintiff has alleged and proven that Raw: (1) failed to look at the plaintiff's chart to determine whether the plaintiff had signed an authorization form; (2) participated in the release of information regarding the plaintiff's presence at Southwest to Johnson; (3) failed to talk with the plaintiff before the plaintiff was arrested and (4) "lured" the plaintiff into his office whereupon the plaintiff was arrested. When determining whether conduct rises to the level of "extreme and outrageous," it is often best to look at examples. In one analogous case, the Appellate Court upheld a trial court's granting of summary judgment on an intentional infliction of emotional distress claim when the plaintiff alleged that an obstetrician wrongfully released her confidential medical records in violation of §§ 52-146o and 52-146i. Alexandra v. West Hartford Obstetrics Gynecology, P.C., 78 Conn.App. 521, 526-27, 827 A.2d 776, cert. denied, 266 Conn. 912, 832 A.2d 68 (2003). Our Supreme Court has also held that an employer telephoning the police and having them escort an employee from the premises does not constitute intentional infliction of emotional distress. Appleton v. Board of Education, 254 Conn. 205, 211, 757 A.2d 1059 (2000). Similarly, false accusations of criminal conduct; Carnemolla v. Walsh, 75 Conn.App. 319, 332-33, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003); and public admonishment are insufficient. Dollard v. Board of Education, 63 Conn.App. 550, 552-53, 777 A.2d 714 (2001). The conduct alleged in this case is far less egregious than that in the above cited cases where the Supreme and Appellate Courts have determined that the plaintiff's allegations did not meet the extreme and outrageous standard for intentional infliction of emotional distress. Even if viewed in a light most favorable to the non-moving party, the plaintiff's allegations fall short of the threshold necessary to succeed on a claim for intentional infliction of emotional distress, and therefore, Raw is entitled to summary judgment on count five.
CONCLUSION
For all of the foregoing reasons state above, the defendants' motion for summary judgment is granted as to counts one and five, and denied as to counts two, three, and four.