Opinion
HHDCV176076368S
02-05-2018
Jane DOE I et al. v. ST. FRANCIS HOSPITAL AND MEDICAL CENTER et al.
UNPUBLISHED OPINION
OPINION
CESAR A. NOBLE JUDGE
Before the court is the motion of the defendants, St. Francis Hospital and Medical Center (St. Francis) and Lyndsey Craft (Craft), to strike the entirety of the complaint of the plaintiffs, Jane Doe I PPA Jane Doe II (Doe I), a minor, and Jane Doe II (Doe II)- respectively daughter and mother- which asserts various theories of liability arising out of the disclosure of confidential health care information by a sexual abuse counselor. The motion is granted as to counts one through nine but denied as to counts ten and eleven.
Facts and Procedural History
The plaintiffs, Doe I and Doe II, filed an eleven-count complaint with the following common factual allegations. Doe I was the victim of sexual abuse perpetrated by her father. She received sexual abuse counseling and other support services through the Child Advocacy Center (CAC), which is owned and/or operated by St. Francis. Craft, an employee of CAC, was Doe I’s assigned counselor. Doe II was employed at Community Mental Health Affiliates, Inc. (CMHA) as a clinical case manager providing services to victims of violent crimes. Doe II attended a multi-disciplinary team meeting of various service providers from different agencies at which Craft and Doe II’s supervisor were also present. Doe II observed Craft talking with Doe II’s supervisor. After the meeting, the supervisor informed Doe II that Craft had disclosed that Doe I was a victim of sexual abuse, the circumstances surrounding her sexual abuse, and that she was receiving sexual abuse counseling at the CAC. The complaint alleges that Doe II was informed that her daughter’s receipt of sexual abuse counseling at CAC represented a conflict of interest which required that Doe II either resign her employment or be terminated. Doe elected to resign.
Counts one through four assert liability against St. Francis and Craft on behalf of Doe I and Doe II on a theory of invasion of privacy based on unreasonable publicity. These counts allege that the disclosure of Doe I’s sexual abuse and treatment constituted publicity of highly private information from which the plaintiffs suffered mental distress and were bothered, annoyed, offended, embarrassed, and humiliated. Counts five and six assert claims by Doe I against St. Francis and Craft pursuant to General Statutes § 52-146j, which provides a cause of action for disclosure of confidential communications between a patient and psychiatrist in violation of General Statutes § § 52-146d to 52-146j. Counts seven through ten assert claims for negligent infliction of emotional distress on behalf of Doe I and Doe II against St. Francis and Craft. Counts eleven and twelve are brought by Doe I against St. Francis and Craft for the negligent disclosure of confidential information concerning Doe I’s treatment to third persons without Doe I’s consent in violation of the standard of care set forth in the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d et seq. (HIPAA) and regulations promulgated thereunder.
Liability against St. Francis is asserted in all counts against it on the basis of respondeat superior.
Section 52-146j provides: " (a) Any person aggrieved by a violation of sections 52-146d to 52-146j, inclusive, may petition the superior court for the judicial district in which he resides, or, in the case of a nonresident of the state, the superior court for the judicial district of Hartford, for appropriate relief, including temporary and permanent injunctions, and the petition shall be privileged with respect to assignment for trial. (b) Any person aggrieved by a violation of sections 52-146d to 52-146j, inclusive, may prove a cause of action for civil damages."
The defendants filed their motion to strike on June 5, 2017. In it they assert that the invasion of privacy claims in counts one through four are legally insufficient because they allege only the disclosure of confidential information to one person, Doe II’s supervisor, while the publicity contemplated by the cause of action is to the public at large. In the view of the defendants, counts five and six fail to state a claim upon which relief may be granted because they do not allege that Craft qualifies as a psychiatrist, as that term is defined by § 52-146d(7). This is significant because § 52-146j is triggered only by disclosure of communications made by a patient to a " psychiatrist." The defendants find insufficiency in counts six through ten which claim negligent infliction of emotional distress because these counts do not allege, as required, that Craft should have foreseen that her behavior would likely cause emotional distress that would lead to illness or bodily harm. Finally, counts eleven and twelve are claimed to be legally insufficient because Connecticut does not recognize a cause of action for disclosure of treatment information.
Section 52-146d(7) defines " psychiatrist" as the following: " a person licensed to practice medicine who devotes a substantial portion of his time to the practice of psychiatry, or a person reasonably believed by the patient to be so qualified."
The motion to strike and accompanying memorandum of law were filed before January 16, 2018, when the Supreme Court released its decision in Byrne v. Avery Center for Obstetrics and Gynecology, P.C., 327 Conn. 540 (2018), which, as discussed below, recognized, as an issue of first impression, a common-law cause of action for breach of the duty of confidentiality of medical records by a health care provider.
The plaintiffs’ objection to the motion to strike was filed on October 3, 2017. The plaintiffs agree that the element of publicity required for the action involves dissemination of information to the public at large. However, they speculate that because the reason for Doe II’s termination might have found its way into her personnel file, this constitutes " publishing" of it as a matter of law and refer the court to Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 863 A.2d 735 (2005). Docket Entry No. 116, Pl.’s Obj. to Motion to Strike, p. 7. Further, the plaintiffs assert that there is a question of fact as to whether the information was published to so many persons that it was substantially certain to become public knowledge. As to counts five and six, Doe I argues that the claims are legally sufficient because it could have been reasonable for her to perceive Craft as being a psychiatrist, thus bringing her within the ambit of § 52-146d. In the plaintiffs’ view, the defendants’ arguments of insufficiency as to counts seven through ten are not persuasive because the question of the plaintiffs’ emotional distress was easily foreseeable and this is a highly factual question more properly reserved for resolution by a jury. Finally, the plaintiffs assert that Connecticut does recognize a cause of action for unauthorized disclosure by a health care provider of confidential patient communications.
The defendants filed a reply on October 6, 2017, in which they observe that in ruling on a motion to strike the court is limited to the factual allegations contained in the complaint and that insufficient allegations have been pled as to (1) publicity in counts one through four because it ignores the protection personnel files are provided by General Statute § 31-128f; (2) the professional status of Craft as a psychiatrist in counts five and six; and (3) an unreasonable risk that Craft’s conduct would cause emotional distress which might result in illness or bodily harm. The court agrees with the defendants.
Section 31-128f provides in relevant part that: " No individually identifiable information contained in the personnel file or medical records of any employee shall be disclosed by an employer to any person or entity not employed by or affiliated with the employer without the written authorization of such employee except where the information is limited to the verification of dates of employment and the employee’s title or position and wage or salary or where the disclosure is made: [pursuant to five specific enumerated exceptions.]"
STANDARD
" [A] party may challenge the legal sufficiency of an adverse party’s claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). See Practice Book § 10-39(a). " The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
ANALYSIS
Counts one through four fail to adequately plead the type of publicity required for an action asserting an invasion of privacy. As this court observed in Pearce v. Miele, Superior Court, judicial district of Hartford, Docket No. CV-13-6045901-S, 2016 WL 785557 (February 1, 2016, Noble, J.) (61 Conn.L.Rptr. 832), Connecticut first recognized the tort of invasion of privacy in Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 448 A.2d 1317 (1982). The tort encompasses four categories of invasion of privacy including, pertinently, unreasonable publicity given to another’s private life. Id., 127-28. " Since Goodrich, the Restatement [Section 652D of the Restatement (Second) of Torts] and its commentary have informed the appellate analysis of the standards and elements for each of the four categories of invasion of privacy." Pearce v. Miele, supra, 61 Conn.L.Rptr. 835. The commentary to the Restatement explains that " ‘Publicity,’ as it is used [in Section 652D], differs from ‘publication,’ as that term is used in § 577 in connection with liability for defamation ... ‘Publicity’ ... means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge ... [I]t is not an invasion of the right of privacy, within the rule stated in this Section, to communicate a fact concerning the plaintiff’s private life to a single person or even to a small group of persons." 3 Restatement (Second), Torts § 652D, comment (a) (1977)." In the present case the plaintiffs have alleged only that Craft told Doe II’s supervisor and nothing else. There is no indication in the pleadings that the basis for Doe II’s separation from CMHA was ever placed in her personnel file, never mind that the information in the personnel file was requested by any other person. Moreover, as noted by the defendants, § 31-128f serves to limit disclosure of information in a personnel file.
The plaintiffs’ reliance on Gambardella for the proposition that the hypothetical placement of the reason for Doe II’s separation from employment constitutes a " publishing" as a matter of law is misplaced. As an initial matter, the word " publishing" does not appear anywhere in that decision. However, " publication," as an element of a claim for defamation, was considered and held, in the context of a defamation claim, to be satisfied when a statement was communicated among an employee’s supervisors and included in the employee’s personnel file. Gambardella v. Apple Health Care, Inc., supra, 86 Conn.App. 848-49. As discussed above, the terms " publicity" and " publication" are afforded different meanings for purposes of defamation and invasion of privacy. Because the facts alleged in the complaint, alone, do not set forth any basis to conclude that dissemination of private information to more than one person occurred, counts one through four fail to state a legally sufficient claim and are stricken.
Counts three and four also fail to set out sufficient facts to state a legally sufficient claim. Section 52-146j establishes a cause of action for violations of § § 52-146d to 52-146j, which make confidential, subject to enumerated exceptions, communications between a patient and a psychiatrist relating to diagnosis or treatment of a patient’s mental condition. One necessary predicate is, of course, that the communication involves a psychiatrist. This term is defined as " a person licensed to practice medicine who devotes a substantial portion of his time to the practice of psychiatry, or a person reasonably believed by the patient to be so qualified." § 52-146d(7). The plaintiffs’ complaint alleges only that Craft was a counselor who provided Doe I with sexual abuse counseling. Doe I counters the defendants’ argument with the assertion that counseling is, by its nature, a form of mental health treatment, and because mental health treatment is the medical specialty practiced by psychiatrists, " it could have been reasonable for Plaintiffs to perceive the Defendants as being a psychiatrists." Docket Entry No. 116, Obj. to Motion to Strike, p. 8.
The plaintiffs’ argument is not persuasive for two reasons. The first is that they have not alleged that either of the plaintiffs perceived Craft as being a psychiatrist. Second, as used in chapter 899 of the General Statutes, in which § § 52-146d through 52-146j appear, the words " psychiatrist" and " counselor" are defined differently. A " professional counselor" is defined as an " individual licensed as a professional counselor pursuant to chapter 383c." General Statutes § 52-145s(2). While a cause of action is created for a violation of the confidentiality of a psychiatrist-patient communication; § 52-146j; the legislature has not done so for violations of counselor-patient communications. This distinction counsels against an overly broad interpretation of the plaintiffs’ pleading. Counts five and six, which do not contain an allegation that Craft is a psychiatrist, fail to state a claim for relief that may be granted pursuant to § 52-146j.
The defendants assert that the claims for negligent infliction of emotional distress are legally insufficient because there is no allegation that Craft should have foreseen that her disclosure would likely cause emotional distress that would be likely to lead to illness or bodily harm. The court agrees.
Counts seven through ten allege that Craft’s conduct " created an unreasonable risk of causing the plaintiff emotional distress, and the plaintiff’s emotional distress hereinafter set forth was a foreseeable result thereof." A claim for negligent infliction of emotional distress, however, requires more than the simple allegation that an actor’s conduct was likely to cause harm. " To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following: (1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff’s distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the plaintiff’s distress ... Thus, [t]he plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm ... The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm ... In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm ." (Citations omitted, emphasis added, internal quotations marks omitted.) Stancuna v. Schaffer, 122 Conn.App. 484, 490, 998 A.2d 1221 (2010). Because the four counts under consideration do not allege that Craft should have foreseen that her behavior would likely cause emotional distress likely to lead to illness or bodily harm, they fail to state a legally sufficient claim.
Finally, counts eleven and twelve survive the defendants’ motion. In Byrne v. Avery Center for Obstetrics and Gynecology, P.C., the Supreme Court recently concluded that " a duty of confidentiality arises from the physician-patient relationship and that unauthorized disclosure of confidential information obtained in the course of that relationship for the purpose of treatment gives rise to a cause of action sounding in tort against the health care provider, unless the disclosure is otherwise allowed by law ..." Byrne v. Avery Center for Obstetrics and Gynecology P.C., 327 Conn. 540 (2018). Moreover, HIPAA and its implementing regulations may be utilized to inform the standard of care applicable to such claims.
Doe I asserts in counts eleven and twelve that Craft disclosed confidential information concerning Doe I’s medical treatment to third persons without the consent of the plaintiff in violation of the standard of care set forth in HIPAA resulting in damages to the plaintiff. These counts sufficiently allege facts to state a claim under Connecticut’s new tort action for breach of confidential healthcare provider-patient communications by the health care provider.
CONCLUSION
For the foregoing reasons, counts one through ten of the plaintiffs’ complaint are stricken. The motion to strike counts eleven and twelve is denied.