Babcock v. Bridgeport Hospital, (SC 16133)

• Decision Date: 28 December 1999
• Docket Number: (SC 16133)
• Citation: 251 Conn. 790,742 A.2d 322
• Court: Connecticut Supreme Court
• Parties: EUNICE BABCOCK ET AL. v. BRIDGEPORT HOSPITAL ET AL. PHILIP BONAFFINI ET AL. v. BRIDGEPORT HOSPITAL ET AL.

251 Conn. 790

742 A.2d 322

EUNICE BABCOCK ET AL. v. BRIDGEPORT HOSPITAL ET AL.

PHILIP BONAFFINI ET AL. v. BRIDGEPORT HOSPITAL ET AL.

(SC 16133)

Supreme Court of Connecticut.

Argued September 28, 1999.

Officially released December 28, 1999.

Borden, Katz, Palmer, Sullivan and Peters, Js. Madonna A. Sacco, with whom was David J. Robertson, for the appellants (defendants in both cases).

J. Daniel Sagarin, with whom, on the brief, were Margaret E. Haering and Regina Duchin Kraus, for the appellees (plaintiffs in each case).

Patrick J. Fitzgerald III filed a brief for the intervening appellees (James Clarke et al.). Beverly S. Knapp and L. Douglas Shrader filed a brief for the intervening appellees (Ronald G. Cone et al.).

Ernest F. Teitell and Brad C. Gustafson filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

Patrick J. Monahan II, Eileen R. Becker and Jennifer D. Jackson filed a brief for the Connecticut Hospital Association, Inc., as amicus curiae.

Opinion

KATZ, J.

This appeal presents the court with its first opportunity to address General Statutes §§ 19a-17b and 19a-25.¹ Specifically, we must consider the extent to which §§ 19a-17b and 19a-25 create statutory privileges for the nondisclosure of medical records to a tort claimant. We must determine what information relating to medical peer reviews and hospital morbidity studies these statutes shelter from disclosure and what burdens of proof must be assumed by those who seek to avail themselves of the privilege.

The cumbersome record discloses the following undisputed facts. In July, 1998, the plaintiffs, Eunice Babcock and Keith Babcock, and Gloria Bonaffini and Philip Bonaffini, filed these separate actions seeking damages alleging that the defendants, Bridgeport Hospital (hospital) and its parent company, Southern Connecticut Health Systems, had been negligent and reckless and had acted in violation of the Connecticut Unfair Trade Practices Act.² Specifically, the complaints in both actions alleged, inter alia, that there had been an epidemic of methicillin-resistant staphylococcus aureus (MRSA) infection in the hospital, that the defendants had failed to prevent its spread and that they had conspired to cover up the epidemic. In their complaint, the Babcocks alleged that during her hospitalization, Eunice Babcock was infected by both MRSA and vancomycin-resistant enterococcus (VRE), causing her to undergo multiple surgeries and suffer serious permanent injuries. In their complaint, the Bonaffinis alleged that Gloria Bonaffini suffered severe illness, injuries and disabilities due to the MRSA infection, including multiple surgical procedures, amputation of her left foot, a tracheostomy and a colostomy, ultimately leading to her death.

On August 5, 1998, the plaintiffs filed a notice of deposition and production request directed to the hospital's "Infection Control Officer."³ The plaintiffs also filed a notice of deposition and production request directed to Michael Liebowitz, Bridgeport Hospital's risk manager, and to Karen Hoffer, clinical services manager of Bridgeport Hospital. The defendants moved for a protective order, asserting that the requested material was protected from disclosure by §§ 19a-17b and 19a-25.⁴ Additionally, the plaintiffs filed their first set of interrogatories and accompanying requests for production to which the defendants objected, asserting essentially the same privileges.⁵

In December, 1998, the case was transferred to the Complex Litigation Docket. Thereafter, in January, 1999, the plaintiffs served supplemental interrogatories and production requests, seeking additional data and records relating to infection control at the hospital. The plaintiffs also filed an opposition to the defendants' requests for a protective order, challenging the defendants' assertions of statutory privilege to both the plaintiffs' first set of interrogatories and requests for production, and to the production request that accompanied their notice of deposition. In support of their opposition, the plaintiffs argued that the defendants had failed to make the evidentiary showing needed to establish the existence of either statutory privilege.

Thereafter, the defendants objected to the plaintiffs' supplemental discovery request, asserting, inter alia, that the information requested also was protected by §§ 19a-17b and 19a-25.⁶ Following a scheduling conference on February 24, 1999, the defendants submitted, pursuant to a court order, a memorandum of law in reply to the plaintiffs' opposition to their motion for a protective order. As part of their reply, the defendants included the affidavit of David Baker, a physician and a member of the hospital's infection control committee.⁷ In addition, the defendants argued in their reply that when they first filed their motion for a protective order, an evidentiary hearing would have been premature, and that should the court determine that such a hearing is required, the defendants would be able to support the claim of privilege by testimony or additional affidavit. The record does not reflect that the defendants requested an evidentiary hearing.⁸ Thereafter, on March 15, 1999, the plaintiffs sought an adjudication of the discovery issues. On March 17, 1999, the defendants objected to that request insofar as it pertained to the plaintiffs' two sets of interrogatories and requests for production.⁹

On March 19, 1999, the trial court issued the following order in response to the most recent pleadings: "At the case management conference conducted on [February 24, 1999] the parties were advised to take all steps necessary for adjudication of pending discovery disputes. The [hospital] did not file its brief in support of its objections to the plaintiffs' interrogatories but now claims that the objections should not be adjudicated because it has failed to file its brief. Any brief shall be filed on or before March 30, 1999. The [hopsital] shall by that date file a `privilege log' listing any document claimed to be privileged or exempt from disclosure by virtue of any statute. As to each item claimed to be privileged, the defendant shall list what the claimed source of the privilege or exemption [is]. If the [hospital] fails to comply, the court will rule on the issues on the state of the submissions and will not revisit the issues."

Thereafter, the defendants filed a motion for articulation as to the court's order. Protesting that at the February 24, 1999 conference the court had ordered the defendants to reply to the plaintiffs' opposition to the motion for a protective order and that no orders had been entered relative to the objections to the interrogatories and requests for production, the defendants sought an additional thirty day time period within which to respond. The trial court extended the time period for the defendants to make their submissions until April 15, 1999, and reiterated that the defendants were to "comply with this court's order to file a privilege log listing each document claimed to be privileged and the legal basis for the privilege." (Emphasis in original.) The court added that, "[w]here the title of a document for which a privilege is claimed does not reveal its nature, that document shall be supplied to the court but not to the plaintiff(s) at this stage." Finally, the court emphasized that the defendants were to submit briefs on any objections to discovery by April 15, 1999, "or the objections will be decided on the basis of the briefs on file as of that date."

On April 15, 1999, the defendants filed a brief in support of their objections to the plaintiffs' requests for production of August, 1998, and January, 1999; see footnotes 5 and 6 of this opinion; adopting by reference the arguments they had made earlier. (See defendants' brief supporting motions for protective order concerning production of documents in connection with noticed depositions and their reply to plaintiffs' opposition to their motion for protective order.) Additionally, as ordered, the defendants submitted a privilege log to the court.¹⁰ They did not submit any documents for in camera review. One week thereafter, the plaintiffs filed a reply.

On May 28, 1999, the trial court issued a memorandum of decision denying the defendants' motion for protective order and overruling their objections based on the peer review and morbidity and mortality studies privileges. Specifically, as to the defendants' peer review privilege claim under § 19a-17b, the trial court found that the documents listed in the privilege log were statistics, graphs, flow charts, memos and chronologies, and that, although they allegedly had been prepared by the hospital's infection control committee, "the bare titles" of the documents listed did not "suggest that their focus is the performance of any health care professional, nor have the defendants supplied any affidavits to the effect that peer review was the task to which the documents are addressed." The trial court also rejected the defendant's claim that the items listed in the log were protected under the morbidity and mortality studies privilege of § 19a-25. According to the court, even though the descriptions of the ninety-one items indicated that they were procured "in the sense of collection or generation, by the defendants' infection control committee... [t]he titles and descriptions of the documents do not, however, indicate that they were collected or generated in connection with studies of morbidity or mortality ... or that they were procured for the purpose of reducing morbidity or mortality.... The defendants have not filed any affidavit in which any competent witness has stated whether any of the ninety-one documents for which an exemption is claimed was procured `in connection with a study of morbidity or mortality,' nor whether the purpose of the study, if there was one, was the reduction of morbidity or mortality." (...