Dzwonkowski v. Northeast Medical Group, Inc.

Christopher Dzwonkowski, Administrator of the Estate of John J. Ostrowski v. Northeast Medical Group, Inc. et al.

No. FBTCV186074036S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

January 23, 2020

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Arnold, Richard E., J.T.R.

MEMORANDUM OF DECISION RE MOTION FOR PROTECTIVE ORDER

Richard E. Arnold, J.T.R.

Pursuant to Practice Book § 13-5, the defendants, on behalf of its employees and agents, has requested that the court issue an Order protecting any and all employees and/or agents of the defendants, including those set forth in the plaintiff’s Treating Health Care provider Expert Disclosure from being called by the plaintiff to testify as expert witnesses at trial or from being questioned regarding issues of standard of care, damages or causation during the course of a deposition.^[1] It is the defendants’ position that while health care professionals who have rendered treatment may testify to facts known to them regarding their own treatment, they are entitled to a qualified expert privilege such that they cannot be made to act as unretained expert witnesses by the plaintiff against their will.

The defendants have filed a memorandum of law in support of their position, as a part of their motion for a protective order. The motion is dated August 21, 2019. The plaintiff has filed an objection dated August 26, 2019. The defendants, thereafter, filed a reply to the plaintiff’s objection. The defendants’ reply is dated September 18, 2019.

The court heard oral argument on the matter on September 23, 2019. At oral argument, the plaintiff, for the first time, raised the issue of whether or not, the defendants had standing to file a motion for a protective order on behalf of non-parties, including but not limited, to Dr. Garvey, as it relates to the assertion of the qualified expert privilege. The court then ordered the parties to file supplemental legal briefs addressing the issue. The defendants filed a supplemental brief dated October 10, 2019, and the plaintiff filed a supplemental brief dated October 15, 2019.

I Background

Plaintiff, as the Administrator of the Estate of John Ostrowski, the decedent, instituted this medical malpractice action by way of a summons and complaint filed with the court on or about April 30, 2018. The named defendants were Bridgeport Hospital and Richard Garvey, M.D. On February 2, 2019, a motion to substitute a party was filed, wherein the plaintiff substituted the defendant Northeast Medical Group, Inc. for the defendant, Richard Garvey, M.D. In the substituted complaint, the plaintiff alleges the defendants negligently treated the decedent when he presented to the Bridgeport Hospital on April 28, 2017, complaining of abdominal pain. The decedent underwent a CT Scan on April 29, 2017, and subsequently underwent surgery for a ventral hernia on May 5, 2017. Subsequent to this surgery, the decedent became septic and died. Plaintiff claims the decedent’s death on May 7, 2017, is the result of the defendants’ alleged negligence and failure to appropriately treat the decedent.

On July 17, 2019, the plaintiff filed the "Plaintiff’s Treating Health Care Provider Disclosure" disclosing the decedent’s treating health care providers as expert witnesses. The disclosed names, numbering between 49 or 53 providers, are individuals whose names appear in the Bridgeport Hospital medical records.^[2] The plaintiff’s disclosure states that these listed individuals "may offer expert opinions and/or testimony in accordance with the produced medical records and reports of care and treatment rendered to the deceased plaintiff, John Ostrowski." According to the defendants, some of the listed individual providers rendered direct care to the decedent, while others simply drew blood or interpreted a radiology study or a pathology specimen. The plaintiff’s disclosure form, at its end, also contains a "catch-all" disclosure of "Agents, Servants and/or Employees" of Bridgeport Hospital. The defendants characterize this last provision as an inappropriate attempt to preserve a future opportunity to disclose and/or call other unnamed health care providers as expert witnesses who were not listed, beyond scheduled disclosure deadlines.

Included in the "Plaintiff’s Treating Health Care Provider" disclosure list, is Richard Garvey, M.D., who was originally a named defendant in this action. The plaintiff’s expert witness list states, "[t]hough not retained by the plaintiffs, Dr. Richard Garvey may be called upon at the time of trial to offer expert testimony based upon his care and treatment of the deceased plaintiff ..." "He may also testify regarding the applicable standard of care for his care and treatment of John Ostrowski, departures from the standard of care and the causal relationship between those departures and the injuries and death suffered ..."

The defendants argue that the plaintiff has endeavored to not only disclose Dr. Garvey as an expert witness without having to retain him as such, but the plaintiff has also attempted to disclose Dr. Garvey as an expert to opine as to whether his own or his colleagues’ care conformed with the standard of care and whether such treatment caused the death of the decedent. It is the defendants’ position that the disclosure of fifty-three (53) non-party individuals as experts, without having retained them as experts, is an effort to compel these listed individuals to act as experts for the plaintiff and such effort is improper. The defendants state these individuals, through the defendants, are protected by a qualified expert privilege, such as they cannot be made to act as unretained expert witnesses by the plaintiff against their will.

The plaintiff, in his memorandum of law, argues that the Appellate Court in Millium v. New Milford Hosp., 129 Conn.App. 81, 108 (2011), aff’d, 310 Conn. 711 (2013) refused to recognize an absolute testimonial privilege for treating physicians. While conceding that Superior Court decisions are split on whether plaintiffs can elicit expert opinions in the depositions of defendant medical providers in medical malpractice cases, the plaintiff argues there are appellate cases, statutes or Practice Book sections that support the defendants’ position.

At oral argument on the defendants’ motion for a protective order, the plaintiff raised the additional issue, that the defendants did not have standing to file a motion for a protective order on behalf of non-parties, including Dr. Garvey, again citing Millium v. New Milford Hosp., supra, 129 Conn.App. 81, as legal authority. The defendants, in opposition, argue that the non-party individuals disclosed by the plaintiff, are agents, servants and/or employees who provided medical care to the decedent in the course of their employment or contractual obligations with the corporate defendants, and it is axiomatic that corporations may only act by and through their agents and employees. See. Maharishi School of Vedic Sciences, Inc. v. Connecticut Constitution Associates Limited Partnership, 260 Conn. 598, 606 (2002). The defendants claim this negates any argument that the defendants do not have standing to move for a protective order on behalf of their own agents, servants and/or employees.

II Standing

The plaintiff in arguing that the defendants do not have standing to file a protective order because even if a qualified expert privilege exists for "any and all employees and/or agents of the defendants," including Dr. Garvey, it would be personal to the witnesses and not within any party’s rights to assert, including the present defendants, Northeast Medical Group and Bridgeport Hospital. Millium v. New Milford Hosp., supra, 129 Conn.App. 81, 107. "[T]he defendant contends that the treating physicians enjoyed an absolute privilege not to be pressed into service as experts for the plaintiff ... we disagree with the defendant." Id. "First, to the extent that such a rule would give the subpoenaed expert witnesses in this case the right to refuse to attend a deposition, we fail to see how the defendant has any standing to assert the witnesses’ rights. Even if we were to assume, arguendo, that there was such a privilege, it would be personal to the witnesses and not within the scope of any party’s rights to assert." Id.

The defendants argue that the non-party individuals disclosed by the plaintiff were disclosed because they were identified as agents and/or employees of Bridgeport Hospital, and the plaintiff disclosed random individual treating providers from the decedent’s medical records maintained in the ordinary course of business by and in behalf of the corporate defendants. It has been confirmed by case law that the corporate entities may act only through their agents, servants and employees. It is noted that the plaintiff included a "catch-all" disclosure at the end of the expert disclosure list purporting to disclose "Agents, Servants and/or Employees" of Bridgeport Hospital. This disclosure by the plaintiff, when viewed in light of existing case law, should negate any argument by the plaintiff that the defendants do not have standing to move for a protective order on behalf of their own agents and/or employees.

Regarding Dr. Garvey, it should be noted that he was an individually named defendant at the inception of this action. Dr. Garvey was an employee of Northeast Medical Group, Inc. at the time of the treatment and care of the decedent. Subsequently, as noted earlier herein, Northeast Medical, Garvey’s employer, was substituted as a named defendant in lieu of Dr. Garvey, by way of an Amended Complaint. Therefore, whether the fifty-three individuals named in the plaintiff’s...