Colandrea v. Conn. State Dental Comm'n

221 Conn.App. 597

302 A.3d 348

Anthony COLANDREA v. CONNECTICUT STATE DENTAL COMMISSION et al.

AC 45365

Appellate Court of Connecticut.

Argued May 9, 2023

Officially Released September 19, 2023

A. Paul Spinella, Hartford, for the appellant (plaintiff).

Shawn L. Rutchick, assistant attorney general, with whom, on the brief, was William Tong, attorney general, for the appellees (defendants).

Moll, Seeley and Pellegrino, Js.

MOLL, J.

The plaintiff, Anthony Colandrea, a dentist, appeals from the judgment of the Superior Court dismissing his administrative appeal from the decision of the defendant Connecticut State Dental Commission ¹ (commission) disciplining him after finding him guilty of incompetence or negligence toward patients in violation of General Statutes § 20-114 (a) (2). ² On appeal, the plaintiff claims that the court improperly dismissed his administrative appeal because (1) the administrative disciplinary proceeding before the commission was barred by the doctrine of res judicata, (2) the defendant Department of Public Health (department) failed to rebut the presumption of prejudice that purportedly arose from an ex parte communication between the department's attorney and a former member of the panel that submitted a proposed decision to the commission pursuant to General Statutes § 4-179,³ (3) the commission abused its discretion in revoking his dental license as a disciplinary sanction, (4) the panel and the commission failed to act as impartial arbiters, and (5) the court abused its discretion in denying his motion to allow proof outside of the record. ⁴ We affirm the judgment of the Superior Court.

The following procedural history and facts, as recited by the court ⁵ or as undisputed in the record, are relevant to our resolution of this appeal. "The plaintiff was at all times relevant to this matter the holder of [a] Connecticut dentist license ... issued by the department. In 2013, Verisk Health Management (‘Verisk’), an auditing firm for United Healthcare Dental, a health insurance provider, attempted to obtain patient dental records from the plaintiff in connection with its audit of the plaintiff's billing practices. Verisk had found suspect billing patterns. After numerous requests from Verisk were ignored, Verisk contacted the state of Connecticut Office of the Attorney General (‘OAG’) regarding the possibility that the plaintiff was engaging in fraudulent billing practices. The OAG referred Verisk to the department. On August 27, 2014, the department initiated an investigation of the plaintiff's alleged fraudulent billing activities. On December 10, 2014, the department delivered a letter to the plaintiff requesting the complete copies of all the patient records that Verisk had requested previously. The plaintiff did not comply with the department's request. On November 16, 2015, the department issued a subpoena duces tecum. The subpoena was served on the plaintiff on November 24, 2015, and required the plaintiff to produce thirty-one specified patient records. The plaintiff did not comply with the subpoena.

"The department [through the Commissioner of Public Health] sought enforcement of the subpoena in the Superior Court. [See Commissioner of Public Health v. Colandrea , Superior Court, judicial district of Hartford, Docket No. CV-15-6064393-S (2015 subpoena enforcement action).] On January 25, 2016, the Superior Court held a hearing regarding the department's petition for enforcement. After hearing arguments from both parties, the court granted the department's petition for enforcement, ordering the plaintiff to produce the subpoenaed patient records to the department. On February 17, 2016, the plaintiff appealed the Superior Court's decision, and on August 1, 2017, [this court] affirmed the Superior Court's decision. [See Commissioner of Public Health v. Colandrea , 175 Conn. App. 254, 167 A.3d 471, cert. denied, 327 Conn. 957, 172 A.3d 204 (2017).] Upon release of [ Commissioner of Public Health v. Colandrea , supra, at 254, 167 A.3d 471 ], the OAG requested that the plaintiff provide the thirty-one subpoenaed patient records to the department by August 4, 2017, which the plaintiff failed to do. ... On August 25, 2017, the plaintiff filed a petition for certification to [our] Supreme Court, which was denied on November 8, 2017. On November 13, 2017, the OAG emailed the plaintiff's legal counsel and requested that the subpoenaed patient records be provided to the department by the close of business on November 16, 2017. On November 20, 2017, the OAG filed [a] motion for contempt [on the basis of the plaintiff's failure] to comply with the [subpoena] and the court's orders.

"On December 10, 2017, the motion for contempt was granted. The Superior Court found that the plaintiff wilfully and deliberately refused to comply with the court's order, without legal excuse. The court based this finding upon ‘prima facie evidence of noncompliance produced at the hearing.’ ... The court also drew an adverse inference from the plaintiff's assertion of his fifth amendment privilege against self-incrimination when called to testify about the existence and whereabouts of the subpoenaed records. The Superior Court also ordered the plaintiff to pay a ‘coercive’ fine of $1000 per day to the OAG from the date of the order until the subpoenaed documents were delivered to the department. ...

"On December 15, 2017, the plaintiff's counsel filed a motion to vacate the order of contempt. In the ... motion to vacate, the plaintiff for the first time asserted that he had failed to produce the thirty-one subpoenaed patient records because they no longer existed. On January 11, 2018, the plaintiff testified, in a hearing in the Superior Court on the motion to vacate, that the thirty-one subpoenaed records were accidentally destroyed after getting wet and contaminated with mold as a result of a flood in the plaintiff's office basement. The plaintiff also testified that there were no electronic copies or duplicate paper copies of the records that were destroyed. On January 2, 2019, the Superior Court issued a memorandum of decision on the motion to vacate. The Superior Court upheld its prior determination of contempt but vacated its order regarding the imposition of a civil penalty ($1000) for each day of noncompliance. The Superior Court issued supplemental orders requiring the plaintiff to make available to the department within thirty days from the date of the order any records, electronic or paper, that were in his possession and control that related to the thirty-one patient records identified in the November 26, 2015 subpoena. The Superior Court also ordered that the plaintiff, within sixty days from the date of the order, give the department access to his dental offices [in] Rocky Hill ... (including the basement) for the purposes of inspecting and verifying the manner of storage, existence and location of stored patient records and other documents. The court found that the remedy imposed was most appropriate to cut through the ‘factual fog that [the plaintiff] has thrown over the question of his patient records and [to] get to the bottom of what records actually exist ....’ The Superior Court also found that the plaintiff's explanation of events showed ‘a lack of candor toward the court and counsel, continuing a pattern of obfuscation, delay and deception found throughout this case.’ ... The Superior Court likened the case to the ‘ongoing game of "hare and hounds" ’ between the plaintiff and the department. ... The Superior Court's decision was affirmed by [this court] on February 23, 2021, [and our Supreme Court denied the plaintiff's subsequent petition for certification on April 6, 2021]. See Commissioner of Public Health v. Colandrea , 202 Conn. App. 815, 247 A.3d 193, cert. denied , 336 Conn. 930, 248 A.3d 1 (2021).

"Additionally, on January 17, 2018, the department issued a second subpoena to the plaintiff requesting the production of an additional twenty patient records that Verisk requested. [On February 7, 2018, the department, through the Commissioner of Public Health, filed a petition to enforce the second subpoena. See Commissioner of Public Health v. Colandrea , Superior Court, judicial district of Hartford, Docket No. CV-18-6088830-S.] On February 14, 2018, the plaintiff filed a motion to quash the [second] subpoena. On March 5, 2018, the [Superior] Court ordered the plaintiff to produce to the ... court the additional twenty subpoenaed patient records by March 26, 2018. On April 13, 2018, the plaintiff filed a notice with the Superior Court that the subpoenaed records no longer existed." (Citations omitted.)

In May, 2019, the department presented the commission with a statement of charges ⁶ alleging in relevant part that, "[s]ubsequent to a date in 2014, and with knowledge of the department's request for patient records as part of an ongoing investigation, [the plaintiff] failed to appropriately maintain treatment records for multiple patients," which violated § 20-114 (a) (2) and subjected the plaintiff to disciplinary action pursuant to § 20-114 (a) and General Statutes § 19a-17. ⁷ On October 29, 2019, the plaintiff filed with the commission a request "that notice be provided as to the date of each [patient] file [at issue in the statement of charges], the patient being treated, and the matter of the treatment provided." The department filed an objection to that request, arguing that "[the plaintiff] and counsel have received the department's investigation report and have attended a compliance conference. ⁸ The matters in issue are well known to them. Indeed, [the plaintiff] has been litigating these matters in Superior Court and on appeal for some three years." (Footnote added.)

On November 5, 2019, the plaintiff filed an answer generally denying the department's allegation while further asserting that he lacked sufficient information to admit or to deny the allegation...