Opinion
No. LPL-CV-96-0334400S
June 12, 2000
MEMORANDUM OF DECISION CT Page 7096
This case is a civil action seeking to recover for personal injuries alleged to have been caused by exposure to lead-based paint. The minor plaintiffs, John Pierce, Johan Pierce, Tinea Pierce and Toshi Pierce, have brought this action through their mother Twana Martin as next friend. Martin is also a plaintiff seeking to recover consequential damages only.
In March, 2000, the defendants, Whitney Street Associates, Charles Lobel and Frederick Berg, requested permission to file non-standard requests for production seeking medical and hospital records for Twana Martin for the ten-year period prior to July, 1994 to date. Martin promptly objected, claiming that her medical and hospital records are privileged under General Statutes § 52-146o and that she has not placed her medical condition in dispute in this case.
Martin objected to the following Requests for Production:
1. "Any and all medical records for the Plaintiff-mother, Twana Martin for the ten (10) year period prior to July, 1994 and to the present time, including, but limited to, any and all physician's records, notes, reports, consultation, prescriptions, diagnoses, prognosis, charts, progress notes, correspondence, billing, recommendations, test results, blood work, and any and all other tangible data documentation or material (in whatever form) relating to or arising from any physician's treatment of Twana Martin."
2. "Any and all medical records for the Plaintiff-mother, Twana Martin, for the ten (10) year period prior to July, 1994 and to the present time, including, but not limited to, any and all in-patient and out-patient hospital records, notes, progress reports, reports, consultations, prescriptions, diagnoses, discharge summaries, prognosis, correspondence, billing, recommendations, test results, radiographic or other imaging studies, blood work, and any and all other tangible data documentation or material (in whatever form) relating to or arising from any hospital in-patient or out-patient facility by [sic] Twana Martin."
Plaintiffs' counsel represented at oral argument that Martin's pre-natal and birth records concerning each of the minor plaintiffs, which were the subject of a third production request, were turned over without objection.
At the court's direction, the defendants filed a response to Martin's objections, without citation to any authority, claiming that because "[t]here are many potential factors, i.e. biological, psychological and environmental which may be the cause of the minor plaintiffs' alleged injuries" the defendants "are entitled to explore all potential contributing factors including the mother's medical history. . . ." This bare assertion is insufficient to overcome Martin's broad statutory privilege to prevent disclosure of her medical records.
"In 1990, the legislature created a broad physician-patient privilege when it enacted Public Acts 1990, No. 90-177, codified at § 52-146o."Edelstein v. Dept. of Public Health Addiction Services, 240 Conn. 658, 662, 692 A.2d 803 (1997). General Statutes § 52-146o (a) provides that in a civil action, "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." "[Section] 52-146o applies to communications made before, as well as after, the statute's effective date." Edelstein v. Dept. of Public Health Addiction Services, supra, 240 Conn. 667. Section 52-146o (b) provides several exceptions to the privilege, but none are applicable here. The purpose of the privilege, as expressed in the legislative history was to "insure that a patient/doctor confidentiality is maintained." 33 H.R. Proc., Pt. 14, 1990 Sess., p. 4860, remarks of Representative Tulisano. Analogous to the psychiatrist-patient and psychologist-patient statutory privileges, General Statutes § 52-146d and § 42-146c respectively, the broad language of § 52-146 implements a legislative policy giving the patient control over who gets access to communications made to and information obtained by her physician. Such broad privileges are difficult to overcome. See Home Insurance Co. v. Aetna Life Casualty Co., 235 Conn. 185, 663 A.2d 1001 (1995).
"Consent of the patient or his authorized representative shall not be required for the disclosure of such communication or information (1) pursuant to any statute or regulation of any state agency or the rules of court, (2) by a physician, surgeon or other licensed health care provider against whom a claim has been made, or there is a reasonable belief will be made, in such action or proceeding, to his attorney or professional liability insurer or such insurer's agent for use in the defense of such action or proceeding, (3) to the Commissioner of Public Health for records of a patient of a physician, surgeon or health care provider in connection with an investigation of a complaint, if such records are related to the complaint, or (4) if child abuse, abuse of an elderly individual, abuse of an individual who is physically disabled or incompetent or abuse of an individual with mental retardation is known or in good faith suspected." General Statutes § 52-146o (b).
Although the physical and mental condition of the minor plaintiffs, who are seeking to recover damages for injuries alleged to have occurred due to exposure to lead-based paint, is certainly in issue in this case, Martin's physical and mental condition is not even though she is a party suing for consequential damages. Under our law, when a child is injured by the acts of a third party, a parent may bring a common law cause of action to collect for consequential damages, such as medical expenditures, that are caused by the injury. Dzenutis v. Dzenutis, 200 Conn. 290, 308, 512 A.2d 130 (1986). A parent may only recover her consequential damages, however, if the child is entitled to recover compensation. Shiels v. Audette, 119 Conn. 75, 77, 174 A. 323 (1934). Thus, any claim Martin may have for consequential damages is premised on the medical condition of the minor plaintiffs. She has not waived her statutory privilege against disclosure of her medical records simply by being a party-plaintiff.
Martin has asserted a valid claim of privilege. Therefore, the burden is on the defendants to establish that Martin's medical records from July, 1984 to the present are relevant to the issue in controversy — the physical and mental condition of the minor plaintiffs — and are necessary to the defense. In this case, other than an unsupported assertion that they are entitled to explore Martin's medical history, the defendants have not provided any basis upon which the court can make a determination of relevance and necessity. They have not cited to any "case specific facts," for example, which provide a basis for concluding that Martin's medical history may provide an explanation for any physical or mental deficits claimed by the minor plaintiffs. See Anderson by Anderson v. Seigel, 175 Misc.2d 609, 668 N.Y.S.2d 1003 (1998) (In lead paint case, movants "failed to show factually" that requested discovery of confidential and private records have any relevance to case.). Nor have they provided expert opinion to establish a factual predicate that demonstrates the relevance of Martin's records to the defense of the claims asserted by the minor plaintiffs. See Monica W. v. Milevol, 252 App.Div.2d 260, 685 N.Y.S.2d 231, 234 (1999). The defendants cannot create "relevance" simply by claiming Martin's medical conditions as a defense. See Andon v. 302-304 Mott Street Associates, 257 App.Div.2d 37, 40, 690 N.Y.S.2d 241, (1999); Little v. McIntyre, 289 N.J. Super. 75, 672 A.2d 1271, 1273 (1996). Furthermore, even if Martin's medical history were demonstrably relevant and necessary to a theory of defense she would still be entitled to assert her statutory privilege. See Dierickx v. The Cottage Hospital Corp., 152 Mich. App. 162, 393 N.W.2d 564 (1986).
In this regard, a general non-case specific claim by an expert that genetic, biological and environmental factors may be the cause of the minor plaintiffs' injuries would not provide a factual predicate any more sufficient than an attorney's bald assertion of that proposition.
In Dierickx v. The Cottage Hospital Corp., 152 Mich. App. 162, 393 N.W.2d 564 (1986), a medical malpractice case claiming neurological injuries to a child, the defendants sought to explore a genetic causation defense theory predicated on case-specific information by seeking discovery of the medical records of the minor plaintiffs siblings. Privilege was claimed. The court, interpreting Michigan's physician-patient privilege as a broad one, concluded "that the force of the statutory privilege outweighs defendants' concern over plaintiffs' use of it to gain a strategic advantage." Id., 393 N.W.2d at 567. Other courts, concerned that the privilege should not be used as sword rather than a shield, have concluded that if a parent or sibling avails herself of the privilege, the plaintiff will be precluded from introducing any such privileged information against the defendants. See Scharlack v. Richmond Memorial Hospital, 102 App.Div.2d 886, 477 N.Y.S.2d 184, 188 (1984);Hughson v. St. Francis Hospital, 93 App.Div.2d 491, 463 N.Y.S.2d 224, 231 (1983).
Accordingly, the plaintiffs' objection to the defendants' request for permission to file non-standard requests for production, dated March 15, 2000, is sustained in its entirety.
LINDA K. LAGER, JUDGE