Opinion
No. CV08-4009539 S
October 30, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE BACKGROUND
On October 8, 2008, the petitioners, Jennifer Figueras and Jose Ventura, co-executors of the estate of Fe Cruz, filed a petition for a bill of discovery in equity seeking the medical records of Joselito Estrada. The records sought are in the possession, custody and/or control of Danbury Hospital (the hospital), Danbury Hospital Behavioral Health Clinic (the health clinic), Greater Danbury Mental Health Authority (the health authority), and Kenneth M. Selig, M.D. The petition for the bill of discovery alleges the following facts. At the time of her death, the decedent, Cruz, was the girlfriend of Estrada. From approximately April 1999, through September 2006, Estrada was receiving mental health treatment from the hospital, the health clinic, the health authority and the case management program. On August 16, 2006, Estrada told his case manager that he was going to kill both himself and Cruz. The case manager contacted the Newtown police department. The Newtown police department and the Newtown EMS arrived at Estrada's residence and brought him by ambulance to the hospital where he was evaluated and released. Thereafter, he was evaluated at the health clinic and the health authority. On August 24, 2006, Estrada killed Cruz. He was arrested, tried and convicted of manslaughter in the first degree, receiving a sentence of thirty-three years in prison.
The petitioners claim that access to Estrada's records is necessary to conduct a reasonable inquiry to obtain a certificate of good faith in order to comply with General Statutes § 52-190a and that there is no adequate remedy at law to procure these records. The petitioners also claim that the records are material and essential to properly determine whether they can bring a cause of action in negligence against Estrada's health care providers.
Section 52-190a provides in relevant part: "No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant's attorney, and any apportionment complainant or the apportionment complainant's attorney, shall obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion."
The respondents, the hospital and health clinic, move to strike the petition for a bill of discovery on the grounds that (1) it fails to allege facts necessary to establish probable cause for an actionable claim; (2) it is invalid to the extent that it seeks mental health records that are protected by statute from disclosure; and (3) it is overbroad. The respondents submitted a memorandum of law in support of their motion. The matter was heard at the short calendar on October 20, 2008. On October 27, 2008, the petitioners filed a memorandum of law in opposition to the motion.
DISCUSSION
"The proper vehicle . . . to address the issue of whether [a petitioner] is unable to satisfy the necessary requirements for a bill of discovery is . . . a motion to strike." Chanaca v. Easton, Superior Court, judicial district of Fairfield, Docket No. CV 05 4006451 (October 7, 2005, Skolnick, J.) ( 40 Conn. L. Rptr. 104, 105). "In considering a motion to strike, the facts alleged in the pleading sought to be stricken are deemed to be true. Nestor v. Travelers Indemnity Co., 41 Conn.App. 625, 629 [ 677 A.2d 475] cert. denied, 239 Conn. 903 [ 682 A.2d 1004 (1996)]. However, a motion to strike may be granted when a pleading alleges conclusions of law not supported by facts." Nattel, LLC v. S.A.C. Capital Management, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 4009539 (July 2, 2007, Adams, J.), citing Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
I. Probable Cause
The respondents argue that the petition fails to allege facts necessary to establish probable cause for an actionable claim in negligence; instead it is being used to investigate whether the petitioners have a valid claim against them. It is the respondents' position that the petition neither alleges that they knew or had reason to know that Estrada posed a threat to the health or safety of Cruz, nor identifies a cause of action that would impose a legal duty on them. In response, the petitioners argue that the bill of discovery demonstrates a "describable sense of wrong" since they have alleged that within days after Estrada reported to his case control counselor that he was going to kill the decedent, he was brought to the hospital "but unexplainably released back into the general public and thereafter committed this heinous crime." The petitioners maintain that these facts indicate that they have a potential cause of action.
The Supreme Court in both Berger v. Cuomo, 230 Conn. 1, 5-8, 644 A.2d 333 (1994) and Journal Publishing Co. v. Harford Courant Co., 261 Conn. 673, 680-82, 804 A.2d 823 (2002) discussed a bill of discovery.
The bill of discovery is an independent action in equity for discovery, and is designed to obtain evidence for use in an action other than the one in which discovery is sought . . . As a power to enforce discovery, the bill is within the inherent power of a court of equity that has been a procedural tool in use for centuries . . . The bill is well recognized and may be entertained notwithstanding the statutes and rules of court relative to discovery . . . Furthermore, because a pure bill of discovery is favored in equity, it should be granted unless there is some well rounded objection against the exercise of the court's discretion . . .
To sustain the bill, the petitioner must demonstrate that what he seeks to discover is material and necessary for proof of, or is needed to aid in proof of or in defense of, another action already brought or about to be brought . . . Although the petitioner must also show that he has no other adequate means of enforcing discovery of the desired material, [t]he availability of other remedies . . . for obtaining information [does] not require the denial of the equitable relief . . . sought . . . This is because a remedy is adequate only if it is one which is specific and adapted to securing the relief sought conveniently, effectively and completely . . . The remedy is designed to give facility to proof . . .
Discovery is confined to facts material to the plaintiff's cause of action and does not afford an open invitation to delve into the defendant's affairs . . . A plaintiff must be able to demonstrate good faith as well as probable cause that the information sought is both material and necessary to his action . . . A plaintiff should describe with such details as may be reasonably available the material he seeks . . . and should not be allowed to indulge a hope that a thorough ransacking of any information and material which the defendant may possess would turn up evidence helpful to [his] case . . . What is reasonably necessary and what the terms of the judgment require call for the exercise of the trial court's discretion . . .
The plaintiff who brings a bill of discovery must demonstrate by detailed facts that there is probable cause to bring a potential cause of action. Probable cause is the knowledge of facts sufficient to justify a reasonable man in the belief that he has reasonable grounds for presenting an action . . . Its existence or nonexistence is determined by the court on the facts found . . .
Moreover, the plaintiff who seeks discovery in equity must demonstrate more than a mere suspicion; he must also show that there is some describable sense of wrong. The plaintiff need not, however, state each claim with technical precision; he need only set forth facts that fairly indicate that he has some potential cause of action.
(Citations omitted; internal quotation marks omitted.) Berger v. Cuomo, supra, 230 Conn. 1, 5-8. "Whether particular facts constitute probable cause is a question of law." (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., supra, 261 Conn. 682.
In the present case, the petitioners allege in their petition for a bill of discovery that during the time period in which Estrada was undergoing mental health treatment with the respondents, he killed the decedent; that he had informed his case manager of his desire to kill both himself and the decedent, that as a result of this information, his case manager had contacted the police department and the EMS, both of whom brought him to the hospital for an evaluation; that he was evaluated by the hospital and released; that subsequently the health clinic and the health authority also had evaluated him; and that within days of these evaluations he had killed the decedent. The petitioners further allege that the medical "records are material and necessary to a proper determination of the existence of a potential cause of action" and that a reasonable inquiry is essential to "obtain a good faith certificate to comply with . . . § 52-190a." The facts as alleged are certainly tragic and the court is not unmindful of the impact of the circumstances upon the decedent's kin. However, they lead only to a suspicion of malpractice or negligence on the part of the defendants rather than fairly indicating that there exists a potential cause of action. There is insufficient specificity concerning the defendants' actions, or lack thereof, to justify the granting of the petitioners' request in this situation.
II. Psychiatrist-Patient Privilege CT Page 17220
Next, the respondents argue that the petition is invalid to the extent that it seeks Estrada's mental health records. It is the respondents' position that, pursuant to General Statutes § 52-146e, these records are confidential and, therefore, cannot be obtained without his consent, absent an exception to the rule. The petitioners counter that, in the absence of consent by Estrada, they are entitled to the mental health records pursuant to General Statutes § 52-146f, for the disclosure or transmission of communications or records of the patient as set forth in eight circumstances. For the disclosure of these records, the petitioners rely on subsection (2) "when a psychiatrist determines that there is substantial risk of imminent physical injury by the patient to himself or others," subsection (5) when "in a civil proceeding . . . the patient introduces his mental condition as an element of his claim or defense . . . and the judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between patient and psychiatrist be protected" and (7) when "a member of the immediate family or legal representative of a homicide committed by the patient on or after July 1, 1989 [has] been found not guilty of such offense by reason of mental disease." They further argue that it is within the court's discretion to allow such evidence to be obtained since Estrada's mental condition will be at issue in the medical malpractice case potentially filed by them."The confidentiality of a patient's [information in communications and records] is . . . essential to the statutory purpose of preserving the therapeutic relationship . . . The statute recognizes the unfortunate reality that a stigma may attach to one who seeks psychiatric care, and . . . may subject him or her to embarrassment, harassment or discrimination.
"It is just as clear that no exception is available beyond those contained in § 52-146f. [The court has] long held that . . . exceptions to statutes are to be strictly construed with doubts resolved in favor of the general rule rather than the exception . . . [W]here express exceptions are made, the legal presumption is that the legislature did not intend to save other cases from the operation of the statute . . . With respect to § 52-146e, [our Supreme Court has] noted that the legislature has narrowly drafted the exceptions to the general rule against disclosure after carefully balancing the important countervailing considerations . . . The inference . . . draw[n] is that the legislature did not intend to save other cases from the general rule." (Citations omitted; internal quotation marks omitted.) Falco v. Instiute of Living, 254 Conn. 321, 329-30, 757 A.2d 571 (2000).
"Consideration of one exception in particular illustrates this point. Subdivision (7) of § 52-146f allows disclosure of communications to the immediate family or legal representative of the victim of a homicide committed by the patient where such patient has . . . been found not guilty of such offense by reason of mental disease or defect for use in a civil action against the patient.
"The passage of the bill that ultimately was enacted as subdivision (7) of § 52-146f followed the murder of a young girl by a psychiatric patient in Middletown . . . The murder highlighted the difficulties presented to a litigant by the psychiatrist-patient privilege . . . The legislature, however, did not draft an exception that assists civil claimants in general . . . The exception allows disclosure only after a homicide trial and only after the patient has been found not guilty by reason of mental disease and defect. As Representative Robert M. Ward stated, the exception was a quite narrowly drawn change to the law . . . strictly limited to those fact patterns described in the act . . . Therefore, we conclude that it is contrary to the language of the statute and the intent of the legislature for courts to make discretionary case-by-case determinations of when the privilege may be overridden." (Citation omitted; internal quotation marks omitted.) Falco v. Institute of Living, supra, 254 Conn. 330-31.
"The psychiatrist-patient privilege merely restricts the discovery and the availability of evidence . . . In this respect, the psychiatrist-patient privilege is no different from other common privileges such as the attorney-client or spousal privileges. Evidentiary privileges exist for the protection of interests and relationships which, rightly or wrongly, are regarded as of sufficient social importance to justify some sacrifice of availability of evidence relevant to the administration of justice . . . The plaintiff has failed to demonstrate that the privilege limits or impairs the cause of action itself." (Citation omitted; internal quotation marks omitted.) Falco v. Institute of Living, supra, 254 Conn. 331-32.
"[A]n exception to the non-disclosure of psychiatric records must be clearly and unequivocally expressed . . . In reviewing this statute, the courts must presume that the legislature incorporated the purpose of the statute in every sentence, clause, phrase and item of punctuation in the statute . . . These directives hardly allow the trial court to imply an exception to the general rule of non-disclosure, even to accommodate the need of the plaintiff to meet the strictures of § 52-190a." (Citations omitted; internal quotation marks omitted.) Meigs v. Anderson, Superior Court, judicial district of New Britain Docket No. CV 02 05147055 (April 21, 2003, Cohn, J.) ( 34 Conn. L. Rptr. 618, 618-19).
As the Supreme Court stated in Falco v. Institute of Living, supra, 254 Conn. 333, and as is equally applicable to the facts in the present case: "[T]he psychiatrist-patient privilege may be overridden only by legislatively enacted exceptions, and . . . the facts of this case do not fall within the narrowly drawn exceptions delineated by the legislature."
Subsection (2) does not apply as the release of records in this situation would be instituted by the treating psychiatrist(s) and not by any other individual. Subsection (5) would not apply as Estrada is not involved in any pending civil proceeding in which he has introduced his mental condition as an element of any claim or defense therein. Subsection (7) does not apply as rather than having been found not guilty by reason of mental disease, the petition itself alleges that Estrada was convicted of manslaughter in the first degree and sentenced to thirty-three years in prison. Since no exception applies, Estrada's mental health records cannot be obtained without his consent for the purposes set forth by the petitioners.
General Statutes § 52-146f(2) states: "Communications or records may be disclosed when the psychiatrist determines that there is substantial risk of imminent physical injury by the patient to himself or others or when a psychiatrist, in the course of diagnosis or treatment of the patient, finds it necessary to disclose the communications or records for the purpose of placing the patient in a mental health facility, by certification, commitment or otherwise, provided the provisions of sections 52-146d to 52-146j, inclusive, shall continue in effect after the patient is in the facility." (Emphasis added.) Although references are made to the treatment of Estrada at a mental health authority and a behavior clinic, there is nothing in the bill of discovery specifically referencing treatment by a psychiatrist which might allow the invocation of this exception. Moreover, there is no allegation in the petition of a substantial risk of imminent physical injury by the patient to himself or others. The risk referred to by the petitioner occurred over two years prior to the filing of the petition.
III. Scope of Discovery Request
Finally, the respondents argue that the petition is overbroad in that it fails to seek specific, targeted and narrowly tailored discovery. It is the respondents' position that the request for all of Estrada's treatment records over a seven and a half year period is too broad and sweeping and amounts to a fishing expedition that unfairly intrudes on the privacy interests of the respondents' patients. The petitioners counter that the court can enter a protective order with strict parameters as to the limitations on what records are to be produced.
"The extent of discovery and the use of protective orders is clearly within the discretion of the trial judge . . . The court's discretion applies to decisions concerning whether the information is material, privileged, substantially more available to the disclosing party, or within the disclosing party's knowledge, possession or power." (Internal quotation marks omitted.) McGuire v. Rawlings Co., LLC, Superior Court, judicial district of Fairfield, Docket No. CV 00 0375212 (March 14, 2005, Skolnick, J.) ( 39 Conn. L. Rptr. 36, 39). In the present case, the request seeks all records over a seven and a half year period without any limitation as to their potential relevancy to Estrada's actions. In effect, the petitioners are using "the bill of discovery process as a means of investigating whether or not they have a cause of action and not one for seeking evidence otherwise not available to them to support an action they already have probable cause to bring." See, Mahen v. Johnson Memorial Hospital, Inc., Superior Court, judicial district of Tolland, Docket No. CV04-4000370 (September 17, 2004, Scholl, J.).
CONCLUSION
The allegations of petitioners' bill of discovery lack the specificity necessary to establish probable cause for an actionable claim. Moreover, the petitioners' request for the medical records of Estrada is protected pursuant to § 52-146e. The need to accommodate the plaintiffs' duty to provide a good faith certificate so as to meet the strictures of § 52-190a is insufficient to meet the statutory exceptions for the release of the information under § 52-146f. Finally, the scope of the petitioners' request is overly broad.
Accordingly, the respondents' motion to strike the petitioners' bill of discovery is granted.