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granting a motion for summary judgment as to the plaintiff's "negligence per se claims assert that the defendant violated his right to confidentiality, pursuant to HIPAA. It is well settled that HIPAA does not create a private right of action."
Summary of this case from G.R. v. United StatesOpinion
No. CV-09-5032170S
October 4, 2010
RULING ON DEFENDANT'S MOTION TO QUASH SUBPOENA (#138)
In this case, Robert Salatto (Salatto), representing himself, has alleged that the defendant Hospital of St. Raphael (HSR) improperly disclosed certain confidential medical information about him to third parties, specifically an attorney and his step-father, in violation of his rights under state and federal law. On August 6, 2010, a subpoena was issued by the clerk on Salatto's behalf directed to HSR's Director of Health Management, seeking copies of the following documents: (1) any physician's emergency certificate issued on or about June 4, 2009 with respect to Salatto; (2) Salatto's entire medical file for an admission between June 4, 2009 and June 5, 2009; (3) an excerpt from any document that indicates Salatto was a patient at HSR on June 4, 2009; (4) any documents "generated relative to [Salatto's] admission to [HSR] on June 4, 2009;" (5) any HSR "written reference policy, or directive or manual" regarding disclosure of health or psychiatric information and "training and regulations regarding privacy practices;" and (6) the HSR "Notice of Privacy Practices."
On July 28, 2010, the court (Zemetis, J.), granted Salatto's application for issuance of a subpoena by a self-represented party under Practice Book § 7-19 although there was no matter pending scheduled for hearing in this case at that time. The current procedural status of this case is that the pleadings remain open and each side has filed a motion for summary judgment.
On September 23, 2010, HSR moved to quash the subpoena. The motion (#138) appeared as a nonarguable matter on the October 4, 2010 short calendar. HSR's motion asserts as its primary grounds that the subpoena is "burdensome and oppressive . . . unreasonably cumulative and duplicative and . . . designed to annoy, embarrass or oppress . . . and place [it] at undue burden and expense." It also objects to the demanded production on the ground that the documents are not in its possession and control, on the grounds of various claims of privilege and confidentiality and other grounds.
The court will treat the subpoena as one for document production pursuant to Practice Book § 13-28(c). HSR maintains that the requested documents were previously requested by Salatto in Requests for Production dated July 29, 2010. (See exhibit B to Motion to Quash.) HSR is correct with respect to the subpoena's demand for copies of the physician's emergency certificate, some of the medical file information, the admission documents, written policies, directives or manuals regarding the disclosure of protected health information and the Notice of Privacy Practices. Accordingly, to the extent the subpoena demands the production of documents already sought in the Request for Production, it is deemed burdensome and oppressive and is quashed.
Practice Book § 13-28(c) provides, in pertinent part: "A subpoena issued for the taking of a deposition may command the person to whom it is directed to produce and permit inspection and copying of designated . . . documents . . . which constitute or contain matters with the scope of the examination permitted by Sections 13-2 through 13-5."
Arguably, the subpoena's demand for the production of Salatto's entire medical file for the dates of June 4 and 5, 2009, for an excerpt from any document that indicates Salatto was a patient at HSR on June 4, 2009 and for any documents "generated relative to [Salatto's] admission to [HSR] on June 4, 2009" is broader than the production requested on July 29, 2010. To the extent that HSR has such documents within its possession and control and that they differ from the substance of the documents sought in the Request for Production, the court does not have an adequate basis in the record before it to rule upon HSR's claims that these documents are subject to identifiable privileges, are irrelevant, immaterial or not reasonably calculated to lead to the discovery of admissible evidence, contain non-discoverable expert information, contain confidential or proprietary information, contain confidential business information or are documents prepared subsequent to or anticipation of litigation. HSR must comply with the subpoena by producing any such documents in its possession in camera to the court and lodging specific objections. Practice Book § 13-28(d). HSR then "may ask the court to pass upon any claim of privilege, or to make a personal inspection of the document or documents to determine their relevancy or their relevant parts before their submission to [plaintiff]; and to make any proper order for the protection, in such submission, of the producer, as for example, by withholding from the view of [plaintiff] any irrelevant matter which he ought not to be permitted to examine. The future of documents after they have, pursuant to an order of production, passed into the control of the court, is for its determination, and is a matter quite independent of the act of production which has been completed." Banks v. Connecticut Ry. Lighting Co., 79 Conn. 116, 118-19, 64 A. 14 (1906). As the Banks decision makes clear, production of documents pursuant to a subpoena duces tecum does not require the "delivery of the papers into the hands of the party calling for their production or a submission of them to his examination; neither does such a consequence necessarily follow. The production which the possessor of the papers is required to make consists of bringing them into court and putting them into its control." Id., 118.
If Salatto chooses to pursue production of the documents referred to in the first sentence of this paragraph through Requests for Production under Practice Book § 13-9 and withdraws the subpoena, then it would not be necessary for HSR to submit documents to the court.
Accordingly, based on the foregoing discussion, the motion to quash is granted in part and denied in part.