Harvin v. Yale New Haven Health Serv. Corp.

315 A.3d 365

225 Conn.App. 171

Marcus T. HARVIN

v.YALE NEW HAVEN HEALTH SERVICES CORPORATION et al.

(AC 46339)

Appellate Court of Connecticut.

Argued January 8, 2024

Officially Released April 30, 2024

Michael G. Rigg, Hartford, with whom, on the brief, was Adam Maiocco, for the appellant (defendant Lawrence + Memorial Hospital).

Alexander T. Taubes, New Haven, for the appellee (plaintiff).

Alvord, Westbrook and Pellegrino, Js.

WESTBROOK, J.

[1, 2] ₁₇₃In this civil action, the plaintiff, Marcus T. Harvin, a former inmate, asserts claims of, inter alia, negligence per se and negligent infliction of emotional distress against the defendant Lawrence + ₁₇₄Memorial Hospital¹ on the basis of its allegedly unlawful disclosure of his confidential health information during his criminal prosecution.² The plaintiff alleges that the defendant unlawfully disclosed his confidential health information in two ways. First, he alleges that the defendant unlawfully provided certain unspecified confidential health records, including a psychiatric evaluation, to members of the Office of the Chief State’s Attorney. Second, he alleges that two of the defendant’s agents disclosed confidential health information during their testimony at his criminal trial. The defendant appeals from the judgment of the trial court denying its motion to dismiss the action for lack of subject matter jurisdiction on the theory that the defendant is entitled to absolute immunity from suit under the litigation privilege because any and all disclosures of the plaintiff's confidential health information, whether by itself or its agents, occurred in the course of the criminal litigation and in response to a valid subpoena and court order.³ ₁₇₅The defendant specifically claims that the court improperly determined that it lacked a sufficient evidentiary basis on which to determine if the litigation privilege applied under the circumstances of this case.

At oral argument before this court, the plaintiff's attorney conceded, and we agree, that the litigation privilege does bar those portions of the underlying action premised on the testimony provided by the defendant’s agents at the plaintiff's criminal trial. We disagree, however, that the defendant demonstrated on this record that it is entitled to litigation privilege with respect to the allegations of unlawful disclosure of confidential health information to members of the Office of the Chief State’s Attorney. Accordingly, for the reasons that follow, we reverse in part and affirm in part the judgment of the trial court and remand the case with direction to grant the motion to dismiss to the extent that the remaining counts are premised on the testimony given by the defendant’s agents at the plaintiff's criminal trial.

[3] The following facts, as alleged in the complaint or otherwise undisputed in the record,⁴ and procedural ₁₇₆history are relevant to our review of the defendant’s claim. In 2014, the plaintiff was arrested in connection with a drunk driving incident that resulted in serious injuries, and, following a criminal trial, he was convicted of multiple offenses.⁵ He received a total ef- fective sentence of twenty-three years of incarceration, execution suspended after fourteen and one-half years, followed by five years of probation with special conditions. State v. Marcus H., 190 Conn. App. 332, 337, 210 ₁₇₇A.3d 607, cert. denied, 332 Conn. 910, 211 A.3d 71, cert. denied, — U.S. —, 140 S. Ct. 540, 205 L. Ed. 2d 343 (2019).

As part of the criminal proceedings, the state served the defendant with a subpoena duces tecum that sought the plaintiff's medical records pertaining to his treatment at the defendant’s hospital following his arrest on May 25, 2014. The subpoena was accompanied by a court order pursuant to General Statutes § 54-2a (a) directing the defendant to comply with the subpoena. On August 14, 2015, the defendant, through its agents, provided to the prosecuting attorney, Sarah Bowman, certain sealed medical records. That same day, Attorney Bowman appeared before the trial court, which issued an order unsealing these records as to Attorney Bowman and defense counsel. During the subsequent criminal trial, Laura Aire, a registered nurse, and Bernard Ferguson, a physician, each of whom worked for the defendant in the hospital’s emergency department, appeared and provided testimony regarding the plaintiff's diagnosis, medical treatment and related medical records.

In July, 2017, following his criminal conviction, the plaintiff, acting as a self-represented litigant, brought the underlying civil action.⁶ The operative amended complaint was filed on December 15, 2017, and contained ten counts, all premised on the allegedly illegal and unauthorized disclosure of his confidential medical information by the defendant, Yale New Haven, and/or their respective agents. Counts one, three, five, seven and nine were brought against the defendant and ₁₇₈sounded in, respectively, negligence per se, negligence, negligent supervision and training, negligent infliction of emotional distress, and invasion of privacy. Counts two, four, six, eight and ten alleged the same causes of action but against Yale New Haven on the theory that it was liable as the parent corporation of the defendant.

On November 5, 2018, the court, Budzik, J., granted in part a joint motion to strike filed by the defendant and Yale New Haven and struck all counts of the complaint except one, two, seven and eight sounding in negligence per se and negligent infliction of emotional distress. The plaintiff did not replead, and the court subsequently rendered judgment against the plaintiff on the stricken counts.

The defendant and Yale New Haven next filed a joint motion for summary judgment on the remaining four counts. Yale New Haven argued that it was entitled to judgment as a matter of law because it had not become the parent corporation of the defendant until September 8, 2016, which was after the alleged disclosures of information complained of by the plaintiff.⁷ Accordingly, it had no proper role in this matter. The defendant argued that it was entitled to summary judgment because any disclosure of the plaintiff's protected health information by the defendant or its agents was done in response to a valid subpoena and court order, none of the statutes, regulations, or policies cited in support of the negligence per se counts was applicable in this matter, and there was no evidence that the disclosure of protected health information caused the plaintiff any emotional distress.

On November 4, 2019, the court, Noble, J., rendered summary judgment in favor of Yale New Haven as to ₁₇₉the remaining counts against it but denied summary judgment regarding the two remaining counts against the defendant. In so doing, the court explained, in relevant part, that "there was no evidentiary foundation provided by the [defendant] as to what was delivered or how it was delivered, in response to the subpoena duces tecum and court order. While the plaintiff offered a purported transcript of a hearing on August 14, 2015 … in which medical records from [the defendant] were said to have been ‘just picked up’ by the prosecutor, no direct evidentiary nexus is offered by the [defendant] between those records ‘just picked up’ by the prosecutor and the records subpoenaed…. As an example of the lack of evidentiary proof for the defendants assertions, the [defendant] refer[s] the court to Exhibit C, the court order and subpoena, in order to advance the proposition that, ‘[p]ursuant [to] the order and subpoena, [the defendant] sent seventy-nine pages of sealed medical records to the Criminal Clerk’s Office at the New London Superior Court.’ … Despite having carefully reviewed the defendant[’s] Exhibit C, the court is unable to find any reference to what was delivered, how it was delivered or … of how many pages it consisted. The court therefore cannot make a finding of no genuine issue of material fact as to the adequacy of compliance with any state or federal confidentiality provisions. Because the propriety of the testimony of both [Arre] and [Ferguson] flows … from the propriety of [the defendant’s] initial disclosure of medical records, the court is also unable to find a lack of a genuine issue of material fact." (Citation omitted; emphasis altered.)

In short, the court was unable to determine from the evidence provided in support of summary judgment exactly what was in the sealed medical records that the defendant produced in response to the subpoena and that were later unsealed by the court and whether ₁₈₀the allegations in the complaint of improperly disclosed health information were limited to only those documents provided to Attorney Bowman and subsequently unsealed by the court as evidenced in the transcript provided. The court thereafter denied the defendant’s motion to reargue the motion for summary judgment.⁸ In 2020 and 2021, the defendant filed several additional potentially dispositive pretrial motions, to no avail.⁹

On August 22, 2022, the defendant filed the motion to dismiss that is the subject of the present appeal. According to the defendant, "witnesses who provide testimony and disclosures in a formal judicial proceeding enjoy absolute immunity under the litigation privilege. A witness, and by extension his/her employer, who produces records pursuant to a subpoena and court order enjoys absolute immunity from suit and liability. Moreover, because [Arre’s] and [Ferguson’s] testimony during the plaintiff's criminal trial fit[s] squarely within the litigation privilege, [the defendant] has absolute immunity from suit and the case must be dismissed in its ₁₈₁entirety for lack of subject matter jurisdiction." The plaintiff filed an opposition arguing that the motion to dismiss was nothing more than a last-minute attempt to delay trial and that the litigation privilege is inapplicable in actions alleging the unauthorized disclosure of confidential...