Opinion
No. CV 11-6016891-S
August 4, 2011
MEMORANDUM OF DECISION ON MOTION TO DISMISS
On December 6, 2010, the plaintiff, James Grace, acting as temporary administrator of the estate of Albert Aksomitas (the decendent), filed this fourteen-count complaint against the defendants, Harry Morgan (Morgan) and the Center for Geriatric and Family Psychiatry, Inc. (Center) reciting the following allegations: On December 11, 2007, the decedent filed for a dissolution of his marriage to his wife, Geraldine Aksomitas. On June 1, 2009, while the dissolution action was still pending, the decedent suffered cardio pulmonary arrest and died. During the course of the resulting probate proceeding, the following violations of the decedent's rights were uncovered: In 2007, Geraldine Aksomitas and her son, John Wisniewski, requested the release of the decedent's medical information from the defendants, from whom the decedent had sought medical treatment in 2005. Allyn Aksomitas, the decedent's son and conservator, informed the defendants of the applicable federal and state regulations regarding the disclosure of a patient's medical information, and gave them explicit instructions not to disclose any of his father's medical information. Nonetheless, on January 17, 2008, the defendants sent a copy of the decedent's entire confidential medical file to Geraldine Aksomitas' attorneys. Additionally, one of the defendants openly discussed the decedent's confidential medical information with an attorney for Geraldine Aksomitas on at least one occasion.
The complaint, alleges causes of action against each defendant for negligence, breach of the duty of confidentiality, invasion of privacy, negligent infliction of emotional distress, intentional infliction of emotional distress, violation of General Statutes § 52-146 and violation of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA).
Defendants filed this motion to dismiss on February 10, 2011, on the ground that the plaintiff has failed to comply with General Statutes § 52-190a by not attaching a written opinion from a similar health care provider to his complaint, or, alternatively, to dismiss counts thirteen and fourteen of the plaintiff's complaint on the ground that the CUTPA claims contained therein are not based on the entrepreneurial aspect of the defendants' provision of services.
-I-
A plaintiff bringing a medical negligence claim is required to attach a written and signed opinion from a similar health care provider, as well as a good faith certificate to his or her complaint pursuant to General Statutes § 52-190a. A plaintiff's failure to comply with the requirements of § 52-190a(a) does not destroy the court's subject matter jurisdiction over the claim, but renders her complaint subject to dismissal pursuant to § 52-190a(c). Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 583-84, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).
The defendants claim this is a medical malpractice action and that the plaintiff was required to comply with § 52-190a because the plaintiff's allegations regarding their disclosure of the decedent's medical records requires the use of medical judgment, and thus constitutes medical malpractice. They note that the plaintiff alleges that the defendants violate an applicable standard of care in every count of their complaint, which would require expert testimony of a medical professional. Further, they point to federal regulations concerning the Health Insurance Portability and Accountability Act (HIPAA), which contains exceptions which require underlying medical judgments in order to determine whether they apply.
Plaintiff argues that § 52-190a does not apply to the present action because the defendants' maintenance of the decedent's medical information is simply a record-keeping function that is not of a specialized medical nature.
Our Appellate Court in Trimel [v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 764 A.2d 203 (2001)], Votre [v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 569] and Selimoglu [v. Phimvongsa, 119 Conn.App. 645, 989 A.2d 121 (2010) applied a three-part test to determine whether a claim sounds in medical malpractice or ordinary negligence. Under this test, the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment. If all of the factors are met, the cause of action properly sounds in medical malpractice and a written opinion letter is required pursuant to § 52-190a . . .
Because the Connecticut Appellate courts have not expressly decided for other reasons, that claims for the unauthorized disclosure of medical information do not require expert testimony and because this plaintiff has not alleged that the defendants were grossly negligent, it is appropriate to apply the three part test in this case. It is undisputed that the plaintiff has sued the defendants in their capacity as medical professionals but in order to satisfy the second of the three considerations the defendants must show that the negligent disclosure of a person's medical records is of a specialized medical nature that arises out of the medical professional-patient relationship. It is found that the decision to disclose records or not disclose in the present case is legal in nature.
In order to satisfy the third consideration, the decision to negligently disclose a patient's medical records must be substantially related to the patient's medical diagnosis or treatment and involve the exercise of medical judgment in order for it to favor the defendants. The disclosure decision itself, even if it involves the application of a HIPPA exception, does not involve the exercise of medical judgment. While it would certainly be a medical judgment to determine whether a patient is dangerous, whether the HIPAA exception for disclosure of that dangerous patient's medical information applies is a legal rather than a medical judgment. Moreover, the defendants' decision to release the decedent's records in this case was not substantially related to the defendants' medical diagnosis and treatment of the decedent. See Alexandru v. West Hartford OB-GYN, Superior Court, judicial district of Hartford, CV 99-0594198 (November 28, 2000, Wagner, JTR).
The defendants' argument concerning the plaintiff's use of the phrase "standard of care" in each count of their complaint is unavailing in light of a review of the entirety of the plaintiff's pleadings. The complaint's oft repeated sentence reads: "Defendants deviated from the acceptable standard of care in disclosing and discussing Aksomitas' confidential medical information in clear violation of federal and state law." (Emphasis added.) Thus, expert medical testimony on the standard of care would not be required, but rather only a showing that the defendants violated the applicable laws concerning disclosure of medical records. Even were an expert needed to explain to the jury application of HIPAA in the present case, that expert would not need any specific medical knowledge, but rather only legal knowledge concerning HIPAA. See Kelly v. Bridgeport Health Care Center, Inc., Superior Court, judicial district of Fairfield, Docket No., CV 10-6007389 (September 2, 2010, Tobin, J.) ( 50 Conn. L. Rptr. 582).
-II-
The defendants move to dismiss counts thirteen and fourteen on the grounds that the CUTPA claims alleged therein are not based on the entrepreneurial aspects of the defendants' provision of services, but rather on the defendants' medical practice. While the defendants should be making their legal insufficiency argument in a motion to strike, rather than a motion to dismiss, this court has the power to treat the defendants' motion to dismiss as a motion to strike in the interest of judicial economy; Girard v. Weiss, 43 Conn.App. 397, 417, 682 A.2d 1078 (1996).
In counts thirteen and fourteen, the plaintiff alleges that the defendants violated CUTPA by intentionally and deceptively disclosing and discussing the decedent's confidential medical information, implying to Aksomitas that the defendants would not disclose the confidential information, deceiving Aksomitas into thinking that they would not disclose the confidential medical information and using, and continuing to use, similar unfair and deceptive tactics with numerous other parties.
In Connecticut professional negligence — that is, malpractice — does not fall under CUTPA, unless the entrepreneurial or commercial aspects of the medical profession are covered, just as only the entrepreneurial aspects of the practice of law are covered by CUTPA. Haynes v. Yale-New Haven Hosp., 243 Conn. 17, 34, 699 A.2d 964 (1997). "[T]he touchstone for a legally sufficient CUTPA claim against a health care provider is an allegation that an entrepreneurial or business aspect of the provision of services is implicated, aside from medical competence or aside from medical malpractice based on the adequacy of staffing, training, equipment or support personnel. Medical malpractice claims recast as CUTPA claims cannot form the basis for a CUTPA violation." Id., 38.
The defendants argue that because their decision to disclose Aksomitas' medical records required them to make a medical judgment, the plaintiff's CUTPA claims are legally insufficient. The plaintiff argues that the disclosure decision is a "business aspect" of the defendants' practice which serves as a legally sufficient basis for his two CUTPA claims.
Our Supreme Court has explained that, "[t]he practice of medicine may give rise to a CUTPA claim only when the actions at issue are chiefly concerned with entrepreneurial aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the competence of and strategy employed by the . . . defendant." Janusauskas v. Fichman, 264 Conn. 796, 809, 826 A.2d 1066 (2003). As examples of the types of claims that might fall under CUTPA, the court specifically referred to claims involving soliciting business and billing practices. Id., 809.
Here, the defendants' disclosure decision cannot fairly be said to relate to the "entrepreneurial aspects of the defendants' practice," because the decision to disclose or not disclose a patient's medical records has little to do with the business aspect of running a medical practice.
Defendants' motion to dismiss the entire complaint is denied, plaintiff having agreed to withdraw counts three and four.
Plaintiff's CUTPA claims set forth in counts thirteen and fourteen are stricken from the complaint.