Opinion
FSTCV075003525S
06-17-2016
Barbara Tiplady, Administratrix v. Samuel Maryles, M.D
UNPUBLISHED OPINION
MEMORANDUM OF DECISION re MOTION FOR ORDER OF COMPLIANCE (#273.00)
Kenneth B. Povodator, J.
This medical malpractice case, commenced in 2007, tried in 2012 before a jury, has returned to the trial court after the Appellate Court reversed the judgment entered in favor of the defendants, 158 Conn.App. 680, 120 A.3d 528 (2015). The Appellate Court found that the trial court had committed reversible error with respect to the testimony of the named defendant, both with respect to the scope of the allowed testimony on examination by his own counsel, and the limitation of the cross examination by the plaintiff.
The cross examination issue related to the extent to which the plaintiff could explore disciplinary action that had been taken by appropriate regulatory authorities, in an attempt to undermine his credibility and minimize the weight to be given by the jury to his testimony. The matter is scheduled for trial in September, and the plaintiff is seeking discovery relating to the disciplinary action actually taken by New York officials, and discovery relating to an investigation by Connecticut officials that did not lead to any disciplinary action.
Counsel for the defendant has submitted to the court a number of documents that were obtained from other counsel for the defendant who had been involved in representing him in the regulatory proceedings in Connecticut and New York, accompanied by a privilege log. The plaintiff claims that the information and materials sought are not privileged (or any privileged information readily can be redacted), and that the broader scope of discovery (as compared to admissibility) entitles the plaintiff to review the documents, so as to enable the plaintiff to prepare for a proper cross examination.
The court previously heard preliminary argument, followed by a telephonic status conference further discussing the issues, ultimately leading the court to conclude that a formal hearing, on the record, was required. Such hearing occurred on June 10, 2016. Both sides have filed memoranda.
Before discussing the merits of the conflicting claims on this issue, the court feels compelled to note that it is apparent that it has not been provided with all documents that ever existed that were responsive to the discovery requests (or were contained in the respective state investigations). The records relating to the New York proceedings that were provided to the court lacked any documents of a substantive nature setting forth the claims asserted against Dr. Maryles or the evidence that had been submitted in support of such accusations (other than a set of factual allegations and charges attached to the consent agreement which appears to have been prepared in connection with the consent agreement). There are some cover letters, correspondence from counsel to various regulatory personnel, recommendations and other " defensive" materials, almost as if the file that current counsel for the defendant had obtained from other counsel had been " sanitized" to remove any and all negative materials. The only limited exceptions are that two documents, defensive in nature, contain references to some of the claims that had been asserted against the doctor relating to Connecticut patients, but without any indication of the completeness of those references. Again, the Connecticut charges did not result in any action (dismissed) and the New York action was based on the admission of problems relating to two New York patients.
The consent order bears an ink date of 2/1/07; the attached statement of charges, which includes the factual allegations and specification of charges, is dated 1/30/07. The court has no way to know if that typed date was a result of reprinting an earlier document with a " date code" or reflects a final version of a possibly-modified document.
With respect to the Connecticut records, the only materials produced (again, other than cover-type letters), were the medical records of the four patients about whom the Connecticut regulatory authorities had inquired and defensive materials. Other than a letter identifying the four individuals with an indication that a follow-up would contain specifics about claimed misconduct, there is no official indication of the nature of the claims that had been asserted against the defendant, and nothing suggesting the evidence supporting such claims (other than the " raw" medical records relating to treatment and the limited mention of charged misconduct incorporated into defensive submissions).
Thus, the court is being asked to rule on disclosure of information or records without the benefit of anything approaching a full record as to what actually transpired in Connecticut or New York, and in particular, the only substantive materials are the medical records for the four Connecticut patients and a variety of materials supporting/defending the defendant doctor.
The defendant claims that he is not required to provide any of these materials to the plaintiff (or answer interrogatories relating to these materials or the underlying facts) because of statutory privileges in New York and Connecticut, as well as HIPAA protection for the actual medical records. The plaintiff, not surprisingly, disagrees.
The court believes that the issues relating to HIPAA can be resolved almost summarily. The records provided concerning the four Connecticut patients are heavily redacted, so as to remove virtually all possibly-identifying information. (Because of the redactions already made, the court cannot be certain, but there appear to be a few phone number entries and patient identification numbers that might need to be redacted in order to assure total anonymity of these records.)
With respect to records and privacy, the goal of HIPAA is to prevent disclosure of protected health information. Pursuant to 45 C.F.R. § 164.514, " [h]ealth information that does not identify an individual and with respect to which there is no reasonable basis to believe that the information can be used to identify an individual is not individually identifiable health information." The regulation goes on to identify the process by which " de-identification" is to be accomplished. Therefore, subject to suitable (extensive!) redaction, the medical records of the four identify patients can be made non-confidential, at least for purposes of HIPAA.
The need for anonymity of the records, however, leads to a cross-referential-type problem. Some of the other documents supplied to the court provide the names of those patients such that it would not be difficult to deduce the identity of the four patients if both the medical records and other documents were to be provided. (This would be analogous to the anecdotal/apocryphal (?) practice of putting computer passwords on a Post-it note affixed to the computer keyboard or screen.) Therefore, if the medical records were to be disclosed, any documents referring to those patients might have to be redacted in order to avoid the trivial task of associating names with records.
The confidentiality of investigations into claimed improprieties by physicians presents a more complicated situation. Aside from dealing with two different jurisdictions with different statutes, there is also the overlay of differing treatment of the records and investigation, depending upon whether there actually is a final decision imposing sanctions (or otherwise finding misconduct), or there is no determination of wrongdoing. That latter dichotomy is present here; there was a consent order in New York, but there is no indication that Connecticut authorities ever made a finding of misconduct/wrongdoing by the defendant.
Again, the court needs to refer back to its earlier comments about the incompleteness of records. While the court cannot determine admissibility at this juncture, the standard for discovery as articulated in Practice Book § 13-2 is not limited to admissibility; the alternative is " if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."
The court's need to consider whether " information sought appears reasonably calculated to lead to the discovery of admissible evidence" necessarily requires some knowledge or estimation of what will or might be relevant/admissible evidence. In response to a statement that the potential use of the information might assist the court in assessing discoverability, the plaintiff alluded to footnote 6 in the Appellate Court decision, implying that that reference to the earlier trial court insistence on knowing the parameters of the intended cross examination as part of its decision-making process had been improper. The court had not asked for specific questions but in any event, the court did not press the point--but that leaves the court without guidance as to the claimed relevance or admissibility of the requested information or, in the alternative, how the requested information might lead to admissible information.
Part of the problem for the court is that the defendant arguably overstates the scope of privilege--or perhaps more accurately, fails to focus sufficiently on the precise issues before the court. Thus, the New York cases cited by the defendant in his memorandum relate to attempts to obtain records and information directly from the New York regulatory body and its investigator. Thus, in Doe ex rel. Doe v. Riback, 14 Misc.3d 385, 386, 823 N.Y.S.2d 890 (Sup.Ct. 2006), the court's opinion starts with identification of the issue:
Plaintiffs . . . seek a subpoena duces tecum requiring the appearance of Robert O'Keefe, medical conduct investigator for the New York State Department of Health (NYSDOH), and for the production of certain records of NYSDOH. The motion is opposed by the Attorney General on behalf of NYSDOH and the Office of Professional Medical Conduct (OPMC) and by Upstate Neurology Consultants, LLP.
In Hunold v. Community General Hospital of Greater Syracuse, 61 A.D.3d 1331, 1332, 876 N.Y.S.2d 828, 829 (2009), the trial court had issued a subpoena compelling production of materials in the investigative file and the appeal focused on attempts to enforce the subpoena. The court having determined that a provision that might have allowed for some level of disclosure was inapplicable, the court concluded: " Thus, we conclude that the material ordered to be produced pursuant to the judicial subpoena duces tecum is not discoverable as a matter of law." 61 A.D.3d 1331, 876 N.Y.S.2d 828. See, also, Izzo v. New York State Department of Health, 134 A.D.3d 1514, 1515, 21 N.Y.S.3d 903 (N.Y.App.Div. 2015).
Kirby v. Kenmore Mercy Hospital, 122 A.D.3d 1284, 1284, 996 N.Y.S.2d 822, 823 (2014), approaches the issue before the court. There, there appears to have been an inadvertent disclosure of information to the plaintiff, in turn revealed to the defendants; the trial court had attempted to prevent further use of the information, but the appellate decision indicated that the trial court had not gone far enough; it should have done whatever was possible to restore the situation to status quo ante--as if no disclosure had occurred.
Here, we are one step further removed from Kirby --there is information in the possession of the subject party and not as a result of inadvertent/improper disclosure. Also, because there was a finding warranting disciplinary action (in New York), the result of the New York investigation itself is not deemed confidential.
Part of the rationale for partial or total confidentiality of records (other than the final report itself) is the need to assure sources of information that candor will not result in any backlash or reprisals. An initial complainant, or a subsequent source of information adverse to the subject of the investigation, should not be inhibited or deterred by the prospect of disclosure of his/her involvement in the process. Absent assurances of confidentiality, the people who work most closely with the subject, and therefore are likely to have pertinent information, would have a strong disincentive to complain or cooperate with an investigation.
Although arising in a different context, see Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, Dist., 1199, 316 Conn. 618, 626-27, 114 A.3d 144 (2015), noting that employee who had notified employer belatedly of possible misconduct by other employees, including a supervisor and others who had not reported the situation at all, received harsher discipline than did other employees who had been actively involved in incident or did not report incident at all. (Complaining employee's own prior work history had been a claimed factor in harshness of discipline.)
The court must now return to its previous observation about the incompleteness of records provided for in camera review. The actual initial notice of the claimed misconduct (charges) was not provided. No information was provided relating to any supporting information or documentation upon which the New York authorities relied in concluding that there had been any misconduct (except to the extent that the decision contains such information). Exonerating/supporting materials were provided to the court as submitted to both New York and Connecticut agencies. Again, the Connecticut proceedings did not result in any determination of wrongdoing which presumptively invokes a greater level of confidentiality/privilege.
The New York decision is not privileged, and the Appellate Court has indicated that it can be used (parameters undetermined) in connection with the cross examination of Dr. Maryles, should he be proffered as an expert (or be allowed to testify as if he were an expert). The court does not have before it the issue of proper limits on such use, and the New York decision does allude to the Connecticut patients. The court does not know if there are other records that the defendant possesses which are or may be responsive to the requests at issue.
The court has attempted to identify the issues that inform its decision. In recognition of the need for an expedited resolution of the issue, the court enters the following order with respect to compliance with the plaintiff's supplemental discovery requests dated April 17, 2016:
Interrogatories
1. Redacted hospital records to be provided;
3. no compliance required;
4. no compliance required;
6. no compliance required;
7. Redacted information to be provided if available (beyond #1).
Production
Records as to #1 and #7 and records relating to interrogatories to which there was no objection or claim of privilege, required to be provided, subject to redaction.
For purposes of this order, any record providing any identifying information for patients A, B, C, D, E or F is required to be redacted, even if a mere listing of names without any other information (for the reasons discussed above) if such a name is present, the actual name is to be deleted and an indication substituted as to which " lettered" patient was identified.