Opinion
No. CV 03 0399819
July 21, 2004
MEMORANDUM OF DECISION RE (#113) PLAINTIFF'S MOTION TO QUASH
This is an action for personal injuries and other damages and losses allegedly sustained by the plaintiff, Christopher Smith, as a result of a motor vehicle collision between his vehicle and one owned by the defendant Claudio Rossi and being operated by the defendant, Christina Rossi, which occurred on or about June 8, 2001.
In an amended complaint dated March 24, 2003, the plaintiff alleges that he suffered many injuries, namely a lateral meniscus tear to his right knee, permanent disability of his right knee, back pain, a severe shock to his nervous system, and great pain and mental anguish. The plaintiff alleges that as a result of the defendants' negligence, he can no longer engage in activities he had enjoyed before the accident and no longer enjoys the "normal healthy lifestyle" he had before the accident.
On May 11, 2004, the plaintiff filed a motion to quash the defendants' subpoenas for medical records from The Keeper of the Records of Jerold M. Perlman, The Keeper of the Records of Pediatric Healthcare Associates, and The Keeper of the Records of Orthopaedic Specialty Group.
The plaintiff alleges that the subpoenas are oppressive and unreasonable, for the records sought by the defendants have already been disclosed to them and requiring the physicians to provide the information again serves no purpose but to harass the physicians. In addition, the plaintiff alleges that the defendants' attempt to compel the defendants' health care providers to disclose his medical records violates 42 U.S.C. § 290dd-2(a).
The defendants filed a memorandum in opposition to the plaintiff's motion to quash on May 28, 2004, in which they argued that they have a statutory right to depose the plaintiff's physicians and that the right to compel the production of the medical records from the physicians is permitted within the ambit of the right to depose. In addition, the defendants argue that despite the plaintiff's assertion to the contrary, 42 U.S.C. § 290dd-2(a) is not applicable in this case.
The plaintiff filed a reply brief on June 18, 2004.
Section 13-2 of the Practice Book provides that "[i]n any civil action . . . where the judicial authority finds it reasonably probable that evidence outside the record will be required, a party may obtain in accordance with the provisions of this chapter discovery of information or disclosure, production and inspection of papers, books or documents material to the subject matter involved in the pending action, which are not privileged, whether the discovery or disclosure relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, and which are within the knowledge, possession or power of the party or person to whom the discovery is addressed. Discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of the action and if it can be provided by the disclosing party or person with substantially greater facility than it could otherwise be obtained by the party seeking disclosure."
Practice Book § 13-28(b) permits the issuance of subpoenas for the purpose of summoning a person to testify at a deposition. Subsection (c) of that provision states that "[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 books, papers, documents or tangible things which constitute or contain matters within the scope of the examination permitted by Sections 13-2 through 13-5."
"Practice Book § 13-28(e) provides that a party served with a subpoena accompanied by a command that the deponent produce and permit inspection of designated items may file a motion to quash or modify the subpoena if it is unreasonable and oppressive or if it seeks the production of materials not subject to production . . ." (Internal quotation marks omitted.) Brackett v. St. Mary's Hospital, Superior Court, Complex Litigation Docket at Waterbury, Docket No. X01 CV 97 0140111 (January 31, 2002, Hodgson, J.) ( 31 Conn. L. Rptr. 429). In this case, it is the plaintiff rather than the parties served with the subpoenas, who is seeking to quash the subpoenas. Despite the Practice Book language, the Appellate Court has determined that "[a]lthough the discovery being sought by the defendant was not from the plaintiff, the protective order was necessary to protect a party's interest. Accordingly, the plaintiff properly filed a motion for a protective order; to prevent the defendant from conducting depositions of nonparty witnesses." Cahn v. Cahn, 26 Conn. App. 720, 728, 603 A.2d 759 (1992). The Superior Court has interpreted the Cahn decision to stand for the proposition that "where a party seeks to protect itself from harm due to the subpoena of a non-party, it has standing to seek a protective order." Schramm v. Stelly, Superior Court, judicial district of Litchfield, Docket No. CV 00 0081681 (June 25, 2001, Cremins, J.) ( 30 Conn. L. Rptr. 41). Thus, in that case, the court found that the plaintiff had standing to seek to prevent the disclosure of his medical records, despite the fact that the subpoena was not issued to him. Based on the reasoning of those cases, the plaintiff does have the right to submit this motion to quash despite the fact that the subpoenas are not directed to him.
FEDERAL LAW CLAIM
The plaintiff argues that requiring his health care providers to disclose his medical records is inappropriate under 42 U.S.C. § 290dd-2(a). As the defendants argue in their memorandum in opposition to the motion to quash, this statute is wholly inapplicable to the present case. 42 U.S.C. § 290dd-2(a) provides in relevant part that "[r]ecords of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall, except as provided in subsection (e) of this section, be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section." Clearly, this case has nothing to do with substance abuse programs or activities, and therefore, this statute provides no support for the plaintiff's motion to quash. In his reply memorandum, the plaintiff concedes that a narrow interpretation of the statute renders it inapplicable to the case, but that a liberal reading could lead to the conclusion that the medical records at issue in this case are subject to the strictures of the statute. Despite the plaintiff's assertion, even under a liberal reading, there is no support for the argument that this statute applies to medical records dealing with anything other than substance abuse. In fact that particular statute is located within a section characterized as "miscellaneous provisions relating to substance abuse and mental health." The court finds that 42 U.S.C. § 290dd-2(a) provides no basis to grant the plaintiff's motion to quash.
OPPRESSIVENESS CLAIM
The plaintiff also argues that the subpoena is unreasonable and oppressive because the information has already been disclosed to the defendants though discovery. The plaintiff argues that requiring his physicians to provide the records again will distract them and prevent them from focusing on treatment, will damage the physician-patient relationship, and will burden the physicians without benefitting the defendants since the defendants already have the records. The defendants counter that the plaintiff is seeking damages for injury to his right knee, but he testified in his deposition that he had sustained a previous injury to his right knee after a 1996 car accident. The defendants contend, therefore, that they are entitled to receive records relating to his 1996 injury, but that they have not received those records yet. The three record keepers to whom the subpoenas are directed all work at facilities or for doctors that the plaintiff testified had treated him in connection with the 1996 injury to his knee.
The defendants argue that they are statutorily authorized to conduct depositions of the plaintiff's physicians because General Statutes § 52-149a provides in relevant part that "[t]he deposition of any physician . . . licensed under the provisions of the general statutes, may be taken on behalf of either party to any civil action . . . in which the physician . . . may be called as an expert witness . . ." As previously stated, Practice Book § 13-28(c) allows a party issuing a subpoena to compel a person's attendance at a deposition to also compel the person to produce relevant papers and documents, although all such production must be within the ambit of Practice Book §§ 13-2 through 13-5. Section 13-2 provides that such evidence can be obtained if it is not privileged.
Although not cited by the defendants, General Statutes § 52-148a(a) provides that "[a]ny party in a civil action . . . may, after the commencement of such action . . . take the testimony of any person by deposition."
In his reply brief, the plaintiff for the first time argued that based on General Statutes § 52-146o, the defendants did not have the statutory right to compel his health care providers to produce his medical records without his authorization. Section 52-146o provides in relevant part that "in any civil action or any proceeding preliminary thereto . . . 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."
In their memorandum in opposition to the motion to quash, the defendants argue that their subpoenas are authorized by the provisions of the Practice Book and they do not contravene § 52-146o, because subsection (b) of that statute provides that "[c]onsent 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 . . ." The plaintiff's reply asserted that the subpoenas are not authorized by any rules of the court, and therefore, the exception does not apply.
The court agrees with the defendants' position and finds that, even in the absence of the plaintiff's explicit permission for disclosure, the record keepers who received the subpoenas are required to produce the medical records in accordance with the subpoena. In Alexandru v. West Hartford Obstetrics Gynecology, P.C., 78 Conn. App. 521, 827 A.2d 776, cert. denied, 266 Conn. 912, 832 A.2d 68 (2003), the Appellate Court addressed a woman's claim that the trial court erred when it determined that her doctor did not violate § 52-146o by disclosing her medical records during the course of a deposition because the disclosure was in accordance with the applicable rules of court and, therefore, fell within the exception of subsection (b)(1). Id., 523. The plaintiff in that case was suing her former employer in federal court and her attorney contacted a physician to serve as an expert witness in the case. Id., 522. Opposing counsel gave the physician notice of a deposition as required by Rule 30 of the Federal Rules of Civil Procedure and also included a request for the physician to produce the plaintiff's medical records. Id., 525. The Appellate Court found that the request for medical records in the deposition notice was within the permissible range of Rule 30(b)(5) which allows a party to request that documents be produced. Id. Consequently, the court determined that "because the disclosure was made pursuant to applicable court rules, it clearly fell within the exception set fort in § 52-146o(b)(1)." Id. The facts of Alexandru are on point with the facts of this case. Although this case is in state court rather than federal court, the analysis is the same. The Practice Book permits parties to subpoena people to require their testimony at depositions and also to compel the production of relevant documents. Thus, applicable court rules permit the production of the documents in this case.
Rule 30(b)(5) of the Federal Rules of Civil Procedure provides in relevant part that "[t]he notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition."
The defendants have cited Superior Court authority that also supports their claim. In Schramm v. Stelly, supra, Superior Court, Docket No. CV 00 0081681, the court noted that "[w]ith regard to the plaintiff's [medical] records, the granting or denial of a discovery request rests within the sound discretion of the trial court, yet this discretion is limited through the provisions of the rules pertaining to discovery, including the mandatory provision that discovery shall be permitted if the disclosure sought would be of assistance in the prosecution or defense of an action." (Internal quotation marks omitted.) With this standard in mind, the court denied the plaintiff's motion to quash because the plaintiff alleged an "inability to perform his normal activities," thus putting his medical condition at issue. Id. "The court [found] that it [was] not unreasonable to allow some inquiry by the defendant, as to whether or not the plaintiff [had] received treatment in the past." Id. Thus, "[t]he harm to the defendant in barring inquiry into these issues outweighs the harm to the plaintiff and/or his relationship with his medical providers." Id.
In this case, the defendants' need for the information is even more pronounced than in Schramm v. Stelly, supra, for the plaintiff is claiming damages for injury to his right knee from his 2001 car accident with the defendants, but the defendants learned from the plaintiff's deposition testimony that he had previously sustained injury to his right knee in a 1996 car accident. In addition, some of the information they have already received indicates that he hurt his right knee in a car accident a couple of weeks before the car accident at issue in this case. As noted by the defendants, the Appellate Court has determined that "[w]hen a plaintiff makes a claim for damages on the basis of his inability to participate in his usual activities, any medical condition that has any potential bearing on his health prior to the accident should be disclosed." Ramos v. Ramos, 80 Conn. App. 276, 285, 835 A.2d 62 (2003), cert. denied, 267 Conn. 913, 840 A.2d 1175 (2004). The plaintiff seeks damages for injury to his right knee, and in the interest of justice and fairness to the defendants, the defendants are entitled to any information concerning the condition of his right knee prior to the accident.
The defendants do not dispute that the plaintiff has provided some of his medical information already, but they assert that the plaintiff has not turned over all the requested material, including any of the records relating to the 1996 car accident. Although the plaintiff asserted in the motion to quash that he had provided all the requested information already, in his reply memorandum he argued that, while he had already provided all the information, if there were any more records that had not been disclosed, he had not waived his right to privacy as to those records. This argument is untenable. In a similar case in which a plaintiff maintained that she had already turned over all the requested medical documents to the defendant, the court determined that she had waived any right to privacy that she otherwise might have been able to claim with respect to the records by claiming that she had already provided everything that was requested. Madon v. Van Degna, Superior Court, judicial district of Hartford, Docket No. CV 01 0812726 (November 19, 2002, Booth, J.). In that case, as in this one, based on other information in her possession, the defendant believed that not all the requested materials had been provided. Id. The court ruled that "[c]ounsel is within her rights to subpoena these records at least when any privacy right has already been surrendered." Id. Thus, even if this court had not determined that the defendants' subpoenas were permitted by applicable rules of law, the plaintiff still could not prevail on his motion to quash, because he has waived his right to privacy with respect to the medical records.
Accordingly, for all the foregoing reasons, the plaintiff's motion to quash the subpoenas is hereby denied.
By the Court,
Joseph Doherty, Judge