Opinion
HHDCV175045594S
11-04-2019
Marcus T. Harvin v. Yale New Haven Health Services Corp. et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Noble, Cesar A., J.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT, #134
CESAR A. NOBLE, J.
Before the court is the motion for summary judgment of the defendants, Yale New Haven Health Services Corp. (YNH) and Lawrence and Memorial Hospital (L&M) in which the defendants assert there are no genuine issues of material fact as to the claims of the plaintiff, Marcus Harvin, of negligence per se and negligent infliction of emotional distress based on alleged improper disclosure of confidential medical and psychiatric data and protected health information as defined by 45 C.F.R. § 164.512. As is explained below, the motion is granted in part and denied in part.
The factual background to the allegations of the plaintiff’s complaint are derived from an affidavit in support of a search warrant for chemical analysis of blood and urine samples obtained, from the plaintiff, in the possession of L&M. On May 25, 2014, an officer of the Ledyard Police Department responded to a call of a stopped vehicle on Rt. 12 with an adult asleep behind the wheel with two children in the backseat of the car. The investigating police officer found the vehicle stopped with the engine running and two small children in the rear seat. The present plaintiff was asleep behind the wheel. He was awakened and informed that the officer intended to perform a field sobriety test as a consequence of the smell of alcoholic beverage coming from the car, an observation of bloodshot eyes and slow slurred speech. The plaintiff, Marcus Harvin, identified himself as Donte Harvin, his brother. When the police officer returned to his vehicle to process the information he was provided by the plaintiff, the plaintiff’s vehicle sped off at a high rate of speed. Ultimately, the vehicle driven by the plaintiff was found upside down in the swimming pool of a residence on Baldwin Hill Rd, Ledyard, Connecticut. The plaintiff and the two children in the back seat, ages 2 and 4, his children, were entrapped in the vehicle due to extensive damage. Further investigation found that the vehicle had left the road, hit a utility pole, ran through a DOT traffic control box, over a metal beam guardrail and then came to rest in the pool. The plaintiff’s two-year-old child suffered a partially severed right forearm that was connected by only a small amount of skin. The plaintiff was taken to L&M where blood and urine samples were collected and medical treatment rendered.
The affidavit, appearing as exhibit G was provided by the plaintiff, in his objection to the defendants’ motion for summary judgment.
Following an arrest in May of 2014 and subsequent trial the plaintiff was found guilty on March 3, 2016 of Assault in the second degree with a motor vehicle in violation of § 53a-60d; two counts of risk of injury to a child in violation of General Statutes § 53-21(a)(1); two counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63; interfering with an officer in violation of General Statutes § 53a-167a; reckless driving in violation of General Statutes § 14-222; illegal operation of a motor vehicle while under the influence of alcohol and/or drugs in violation of General Statutes § 14-227a and increasing the speed of a motor vehicle in an attempt to escape from a police officer in violation of General Statutes § 14-223(b).
The defendant’s conviction history is derived from the defendant’s criminal files, State of Connecticut v. Marcus Harvin, Superior Court, judicial district of New London, Docket No. K10K-MV14-0700192 and State of Connecticut v. Marcus Harvin, Superior Court, judicial district of New London, K10K-CR14-0325996, of which the court takes judicial notice. The defendants appended a copy of State of Connecticut, Judicial Branch, Criminal/Motor Vehicle Conviction, Case Detail, https://www.jud2.ct.gov/crdockets/CaseDetailDisp.aspx’sourcePending&Key-0b0658fa-cca4-4a98-90a644a063f74170, apparently visited on March 20, 2019.
The operative complaint is the November 20, 2017, ten-count Amended Complaint (Am. Com.), Entry No. 118 and is directed solely to the defendants. L&M is identified as a health care provider and YNH as its parent corporation. Following a motion to strike, the court, Budzik, J., ordered stricken all but counts one, two, seven and eight. Harvin v. Yale New Haven Health, et al., Superior Court, judicial district of Hartford, Docket No. 175045594S, 2018 WL 6119909 (November 5, 2018, Budzik, J.). The remaining counts are based on a claim of disclosure of confidential health records prohibited by state and federal laws and an YNH administrative policy and procedure. Counts one and two assert claims of negligence per se against L&M and YNH respectively. Counts seven and eight assert claims of negligent infliction of emotional distress. The claims are based on three distinct events, the alleged improper disclosure of medical records to the Officer of the States Attorney on August 14, 2015 (Am. Com. ¶4), the unauthorized testimony of Registered Nurse Laura Arre, an L&M employee, on February 25, 2016, at the plaintiff’s criminal trial (Am. Com. ¶6), and the testimony of Dr. Bernard Ferguson, also of L&M and at trial, on February 29, 2016 (Am. Com. ¶7). The plaintiff alleges that these disclosures violated General Statutes, § 52-146d, 52-146e(a), 52-146o , 45 C.F.R. § 164-512(e) and YNH Administrative Policy and Procedures Policy Number CC-P-13. YNH is alleged by the plaintiff to be vicariously liable for its "employees, agents and specialists."
Appended to the defendants’ motion for summary judgment were the judicial branch web page; photocopies of newspapers articles regarding the facts of the plaintiff’s arrest and trial; what purports to be a fax from the New London Office of the State’s Attorney (OSA) with a May 19, 2015 signed order of the court ordering compliance with a May 10, 2015 subpoena duces tecum issued by the OSA and directed to L&M for the plaintiff’s medical records; certified transcripts of the trial testimony of Arre and Ferguson; the affidavit of John Ashmeade, a Senior Assistant Counsel for YNH; a complaint in the matter of Marcus Harvin v. John R. Williams et al.; and a number of motions to quash and orders in unrelated matters, and the affidavit of Adam Maiocco, counsel for the defendants, in which he avers that " ‘[a]ll of the documents attached as exhibits to defendants’ memorandum in support of motion for Summary Judgment are true and accurate copies."
The defendants argue in their motion for summary judgment that neither state or federal confidentiality provisions were breached because L&M provided medical records to the OSA in response to the subpoena and court order. The testimony of RN Arre and Dr. Ferguson were, according to the defendants, proper because of the original May 19, 2015, court order. Neither of the two trial transcripts suggest whether Arre and Ferguson testified voluntarily, in accordance with a subpoena and/or a court order. The affidavit of Ashmeade provides that YNH and L&M became affiliated on September 8, 2016 and that there was no affiliation between YNH and L&M at the time of Mr. Harvin’s admission to L&M on May 25, 2014, or at the time of any other dates alleged in his complaint, including August 14, 2015, February 25, 2016 and February 29, 2016.
Appended to the plaintiff’s objection to the defendants’ motion for summary judgment is a transcript of an August 14, 2015, hearing before Williams, J., with a court monitor’s certification of a proceeding before Newson, J.; an uncertified trial transcript for an unknown day; a newspaper article; an unauthenticated document from the Office of the Assistant Secretary for Planning and Evaluation of the U.S. Department of Health and Human Services regarding Section 1564.512(e); a letter from the G.A. 10 clerk’s office; an unauthenticated document purporting to be Administrative Policies and Procedures related to HIPAA from YNH revised to May 23, 2011; correspondence from Atty. John Williams to the plaintiff; the afore-mentioned Search and Seizure Warrant and blank medical authorizations.
"Summary judgment is a method of resolving litigation when pleadings, affidavits, 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 ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). "[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment ... Practice Book § [17-45], although containing the phrase including but not limited to, contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable ... [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." (Emphasis added; internal quotation marks omitted.) Nash v. Stevens, 144 Conn.App. 1, 15, 71 A.3d 635, cert. denied, 310 Conn. 915, 76 A.3d 628 (2013). Practice Book § 17-45 provides that affidavits are competent to provide the evidentiary foundation necessary for summary judgment.
The only properly supported and authenticated argument advanced by the defendants is that of the lack of affiliation between L&M and YNH during the relevant times. The affidavit of Ashmeade is sufficient to establish that they were not affiliated during the times alleged in the plaintiff’s complaint. The only evidentiary obstacle proffered by the plaintiff, an article from the New Haven Register, may not be considered for the truth of the matters asserted therein as it constitutes hearsay. Cherniske v. Jajer, 171 Conn. 372, 377, 370 A.2d 981 (1976) (newspaper article inadmissible as hearsay.)
Moreover, the July 15, 2015 article relied upon by the plaintiff merely reports that L&M and YNH have signed an agreement to affiliate, not that they have affiliated.
For this same reason, the court may not, and does not, consider any of the articles offered by the defendants.
More problematic for the plaintiff is the provision of the records to the OSA. While the court can take judicial notice of the May 2015 court order and the affidavit of Maiocco affirms that the faxed sheets containing the court order and subpoena duces tecum are true and accurate copies, there was no evidentiary foundation provided by the defendants as to what was delivered or how it was delivered, in response to the subpoena duces tecum and court order. While the plaintiff offered a purported transcript of a hearing on August 14, 2015 before Judge Williams in which medical records from L&M were said to have been "just picked up" by the prosecutor, no direct evidentiary nexus is offered by the defendants between those records "just picked up" by the prosecutor and the records subpoenaed. Moreover, and as the defendants observed in an objection to the court considering this transcript, the certification of the monitor is for a proceeding before Judge Newson, not Judge Williams. As an example of the lack of evidentiary proof for the defendants’ assertions, the defendants refer the court to Exhibit C, the court order and subpoena, in order to advance the proposition that "[p]ursuant the order and subpoena, L+M sent 79 pages of sealed medical records to the Criminal Clerk’s Office at the New London Superior Court." (Emphasis in the original.) Defendants’ Memorandum In Support of Motion for Summary Judgment, Entry 135, p. 2. Despite having carefully reviewed the defendants’ Exhibit C, the court is unable to find any reference to what was delivered, how it was delivered or how of how many pages it consisted. The court therefore cannot make a finding of no genuine issue of material fact as to the adequacy of compliance with any state or federal confidentiality provisions. Because the propriety of the testimony of both R.N. Arre and Dr. Ferguson flows, in the view of the defendants, from the propriety of their initial disclosure of medical records, the court is also unable to find a lack of a genuine issue of material fact.
Moreover, the defendants presume, without legal authority for the proposition, that an initial compliance in the disclosure of medical records by L&M acquits their employees, Arre and Ferguson, of any confidentiality obligations. As previously mentioned, the record provided by the defendants is devoid of any evidence related to how it was that the OSA procured the appearance of both witnesses and under what circumstances.
For the above reasons, summary judgment is granted in favor of Yale New Haven Health Services Corp., but denied as to Lawrence and Memorial Hospital.