Brockway v. VA Conn. HealthCare Sys.

• Decision Date: 13 June 2012
• Docket Number: 3: 10 - CV - 719 (CSH)
• Court: U.S. District Court — District of Connecticut
• Parties: ROBERT L. BROCKWAY, JR., Plaintiff, v. VA CONNECTICUT HEALTHCARE SYSTEM, Defendant.

ROBERT L. BROCKWAY, JR., Plaintiff,

v.VA CONNECTICUT HEALTHCARE SYSTEM, Defendant.

3: 10 - CV - 719 (CSH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

Dated: June 13, 2012

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

HAIGHT, Senior District Judge:

I. INTRODUCTION

Plaintiff Robert L. Brockway, Jr. ("plaintiff" or "Brockway), acting pro se, brings this personal injury action against defendant Veterans Administration ("VA") Connecticut Healthcare System ("defendant") pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b) and 28 U.S.C. § 2671, et seq. Brockway's Complaint alleges that defendant wrongfully permitted an improper medical diagnosis of "Bi-Polar" to remain on his medical records. Doc. #1, p. 2 (C). Plaintiff further alleges that this "Bi-Polar" diagnosis was made "without proper medical authority," violated his right to privacy, and resulted in his suffering "unne[ce]ssary misery, stigma and shame." Id., p. 2 (C), p. 3 (D). Through this action, he seeks to recover $5 million in damages for "extreme harm to his professional career, family life, and reputation." Id., p. 5 (F), p. 7 (sections 10 & 12b).

Pending before the Court is defendant's motion for summary judgment (Doc. #42), in whichdefendant claims that, pursuant to Federal Rule of Civil Procedure 56(c), "[s]ummary judgment is warranted" in defendant's favor for the following reasons: (1) plaintiff's Complaint contains procedural deficiencies in that he fails to name the proper party as defendant, improperly requests a trial by jury, and seeks punitive damages; (2) plaintiff's claim, sounding in libel and/or slander, is barred under the libel and slander exception to the FTCA, 28 U.S.C. § 2680(h); (3) plaintiff's FTCA claim is untimely under the applicable two-year statute of limitations; (4) if construed as a claim for violation of privacy pursuant to the Privacy Act, 5 U.S.C. § 552a(g)(5), and/or breach of confidentiality of patient's records under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C.A. § 1320, et seq., plaintiff claim is respectively untimely and/or outright barred by statutory provisions; and (5) plaintiff has failed to factually establish any violation of the FTCA by the defendant.

II. MATERIAL FACTS

A. Plaintiff's Background and Medical Treatment by VA Connecticut

The Court has derived the following material facts from the parties' submissions, which include, inter alia, defendant's Local Rule 56(a)(1) Statement, supporting affidavits, and plaintiff's deposition testimony.

Plaintiff is a veteran of the United States Air Force with several years of college education.¹ Doc. #42-4, Ex. C (Transcript Excerpts of Deposition of Robert L. Brockway, Jr. ("BrockwayDepo."), Mar. 22, 2011), p. 8, l. 6 to p. 11, l. 3.² Upon leaving the military, he was employed sporadically in a variety of positions, including school teacher, probation officer, and drug counselor, while struggling with mental health difficulties.³ Id., p11, l. 18 to p. 13, l. 13. He is currently unemployed and held his last position approximately five years ago, working at Walmart in the shoe and furniture departments. Id. , p. 11, l. 10-16. Brockway first sought assistance from the "mental health system" approximately five years after he left military service. Id., p. 101, l. 12-19. He concedes that as early as 1970, he realized he had been labeled as "mentally ill" by a mental health facility at Yale. Id., p. 124, l. 6-14; p. 125, l. 6-20.

Plaintiff describes his feeling of being stigmatized by his mental illness as "internal" and "subjective"- relating to how he feels about himself rather than resulting from any particular statements or ill treatment directed toward him. Id., p. 130, l. 9 to p. 131, l. 25. He further states that he would find any diagnosis of mental illness to be stigmatizing, not just bipolar disorder. Id., p. 124, l. 3-5.

Plaintiff first sought treatment from the VA Connecticut Healthcare System for his mental health in the late 1990's. Doc. #42-4, Ex. B (Affidavit of Shuba H. Rodrigues, M.D. ("Rogrigues Affidavit")), ¶ 3. His primary clinician was Dr. Shuba H. Rodrigues, a board-certified Doctor of Psychiatry and staff physician with the VA Mental Health Clinic in West Haven, Connecticut. Id., ¶¶ 1-3. Dr. Rodrigues both assessed and treated Brockway's mental health from March of 1999until April of 2010.⁴ Id., ¶ 3.

Upon initial examination of plaintiff on March 24, 1999, Rodrigues noted that he had "an existing diagnosis of hypertension and Bipolar Disorder."⁵ Id., ¶ 4. She also noted that he had been hospitalized in 1980 for a psychiatric condition, during which time he initially began taking the drug lithium. Id. Rodrigues assessed plaintiff's condition as "BiPolar Disorder" with possible psychotic features and "Tardive Dyskensia" and "continued [him] on his medication." Id. Thereafter, she saw Brockway at the VA every three months to assess and treat his mental health issues and manage his medication. Id., ¶ 5. At each session, she took detailed notes of his condition and treatment. Id., ¶¶ 6-11.

On numerous occasions, Rodrigues noted that plaintiff repeatedly voiced his concerns regarding stigmatization due to his mental illness. Id., ¶ 5 (e.g., April 19, 2000 progress notes -Brockway "tends to always bring up the same issue - . . . the stigma of mental illness;" December 13, 2000 progress notes - issue of stigma "comes up on every visit"). Rodrigues recalls that plaintiff also discussed his "disagreement with the use [of] certain psychiatric terminology." Id., ¶ 7 (referencing progress notes on February 5, 2003). On May 8, 2003, Rodrigues's notes for Brockway's session stated that Brockway reported that he had seen "bipolar disorder" on his paper chart in the New London VA clinic and was "angry" about the use of such terminology and the factthat it appeared on documents that "non-professionals use." Id., ¶ 8. Similarly, on March 17, 2004, Rodrigues indicated that Brockway "talked at length about seeing a diagnosis of 'Bipolar Disorder' when clerks access[ed] his record" and felt strongly that non-medical personnel should not have access to such information.⁶ Id., ¶ 9. Rodrigues noted that plaintiff based his disapproval of such access on his negative experiences with the stigma of mental illness. Id.

Rodrigues treated Brockway until April 21, 2010, when he chose to discontinue treatment. Id., ¶ 11. On or about January 19, 2010, approximately two months prior to terminating his treatment at the VA, Brockway filed an administrative tort claim with the Department of Veterans Affairs. Doc. #1 (Complaint), p. 7. "On May 7, 2010, the Department of Veterans Affairs issued a final determination denying [plaintiff's] claim." Doc. #23, p. 3, ¶ 3. On May 11, 2010, plaintiff filed the present action before this court. Doc. #1.

In this action, Brockway claims that he has "suffered from exposure," which he confirmed was exposure from "other people at the VA who might have seen [his] medical records." Doc. #42-4 (Brockway Depo.), p. 62, l. 17-24. In particular, he claims that approximately five or six years ago, he was called at home by a non-VA doctor, whom he identified as "Dr. Carlson," asking if Brockway would like to receive psychotherapy from him. Id., p. 54, l. 10-24, p. 101, l. 12-19, p. 75, l.12 to p. 76, l.6. Plaintiff does not know how this doctor obtained his name but believes that the doctor accessed his VA treatment record. Id. Brockway bases this belief on a conversation he had with Dr. Rodrigues in which she stated that Dr. Carlson had been a VA staff member at one time. Id., p.54,l. 10-20; p. 75, l.12 to p. 76, l.2. Brockway further asserts that Rodrigues told him that she did not provide Dr. Carlson with any reference to Brockway, but that Dr. Carlson visits the VA clinic routinely to determine if anyone needs his services. Id. Plaintiff has concluded that Dr. Carlson, as a former VA employee, may have gained unauthorized access to his medical records. Doc. #43-1, p. 4. Plaintiff concedes that, aside from Dr. Carlson, he does not know of anyone other than VA employees who might have looked at his VA medical records. Doc. #42-4 (Brockway Depo.), p. 76, l. 23 to p. 77, l. 4.

In his Complaint, plaintiff prays for $5 million in damages for pain and suffering resulting from the VA's negligence in recording the diagnosis of bipolar disorder in his VA medical records and allowing VA employees and possibly others to view that diagnosis. Id., p. 77, l. 22 to p. 80, l. 17; p. 95, l. 21 to p. 96, l. 7.

B. Policies of the VA Connecticut

1. Confidentiality of Medical Records

The VA Connecticut is required to follow the guidelines set forth in the Veterans Health Administration ("VHA") Handbook with respect to protection of patients' medical records. Doc. #42-3, Ex. A (Affidavit of Robert Nall ("Nall Affidavit")), ¶ 4.⁷ The VHA Handbook directs local VA Healthcare Systems, such as that located in Connecticut, to establish safeguards concerning confidentiality of patient records. Id., ¶ 5. Pursuant to those guidelines, all staff with access to patient information in the performance of their duties must be made aware of their responsibility tomaintain confidentiality of patient information. Id.

Under the VA Handbook, "[t]he privacy of patient information must be preserved and the information will not be accessible to, or discussed with, unauthorized persons." Id., ¶ 6. Moreover, "[e]very employee with access to patient records in any medium is responsible for the proper handling of the patient records" and "is accountable for safeguarding patient confidentiality and privacy." Id. Failure to comply with said responsibilities "may result in disciplinary or other adverse action up to, and including, termination." Id.

The Handbook further mandates that "[a]ccess to health records and health record file areas is limited to authorized personnel." Id., ¶ 7. Specifically, only authorized...