Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C.

• Decision Date: 10 May 2022
• Docket Number: AC 43413
• Parties: Emily BYRNE v. AVERY CENTER FOR OBSTETRICS AND GYNECOLOGY, P.C.
• Court: Connecticut Court of Appeals

212 Conn.App. 339

275 A.3d 639

Emily BYRNE

v.AVERY CENTER FOR OBSTETRICS AND GYNECOLOGY, P.C.

AC 43413

Appellate Court of Connecticut.

Argued September 22, 2021

Officially released May 10, 2022

Jeffrey R. Babbin, New Haven, with whom were James F. Biondo and, on the brief, Richard Luedeman and Diana M. Carlino, for the appellant (defendant).

Bruce L. Elstein, Bridgeport, for the appellee (plaintiff).

Cradle, Clark and Harper, Js.

CRADLE, J.

In 2007, the plaintiff¹ Emily Byrne commenced this action against the defendant, Avery Center for Obstetrics and Gynecology, P.C., alleging that the defendant had breached its duty of patient confidentiality by responding to a subpoena duces tecum and negligently sending the plaintiff's medical records to the New Haven Regional Children's Probate Court (Children's Probate Court) without her knowledge and authorization. Before trial, the defendant admitted that it had breached its privacy policy and its agreement to keep the plaintiff's medical records confidential and had negligently mailed the records to the Children's Probate Court without her knowledge. The defendant contended at trial, however, that its actions were not the proximate cause of the plaintiff's injuries. The jury returned a verdict in favor of the plaintiff, and the trial court, Welch, J. , granted the plaintiff's motion for offer of judgment interest, attorney's fees, and postjudgment interest. On appeal, the defendant claims that the court improperly (1) limited the testimony of its expert witness; (2) admitted into evidence a medical report, charged the jury concerning future noneconomic damages, and denied its request for a jury interrogatory differentiating between past and future damages; and (3) granted the plaintiff's motion for offer of judgment interest pursuant to General Statutes (Rev. to 2005) § 52-192a.² We affirm the judgment of the trial court.

The following relevant facts and procedural history are set forth in our Supreme Court's earlier decision in Byrne v. Avery Center for Obstetrics & Gynecology, P.C. , 314 Conn. 433, 102 A.3d 32 (2014). "Before July 12, 2005, the defendant provided the plaintiff [with] gynecological and obstetrical care and treatment. The defendant provided its patients, including the plaintiff, with notice of its privacy policy regarding protected health information and agreed, based on this policy and on law, that it would not disclose the plaintiff's health information without her authorization.

"In May, 2004, the plaintiff began a personal relationship with Andro Mendoza, which lasted until September, 2004.³ ... In October, 2004, she instructed the defendant not to release her medical records to Mendoza. In March, 2005, she moved from Connecticut to Vermont where she presently lives. On May 31, 2005, Mendoza filed paternity actions against the plaintiff in Connecticut and Vermont. Thereafter, the defendant was served with a subpoena requesting its presence together with the plaintiff's medical records at the ... Children's [Probate Court] on July 12, 2005. The defendant did not alert the plaintiff of the subpoena, file a motion to quash it or appear in court. Rather, the defendant mailed a copy of the plaintiff's medical file to the court around July 12, 2005. In September, 2005, [Mendoza] informed [the] plaintiff by telephone that he reviewed [the] plaintiff's medical file in the court file. On September 15, 2005, the plaintiff filed a motion to seal her medical file, which was granted. The plaintiff alleges that she suffered harassment and extortion threats from Mendoza since he viewed her medical records.⁴ ...

"The plaintiff subsequently brought this action against the defendant. Specifically, the operative complaint in the present case alleges that the defendant: (1) breached its contract with her when it violated its privacy policy by disclosing her protected health information without authorization; (2) acted negligently by failing to use proper and reasonable care in protecting her medical file, including disclosing it without authorization in violation of General Statutes § 52-146o⁵ and the [United States Department of Health and Human Services’] regulations implementing [the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1320d et seq. ]; (3) made a negligent misrepresentation, upon which the plaintiff relied to her detriment, that her medical file and the privacy of her health information would be protected in accordance with the law;⁶ and (4) engaged in conduct constituting negligent infliction of emotional distress." (Footnotes added; footnotes omitted; footnotes in original; internal quotation marks omitted.) Id., at 437–39, 102 A.3d 32.⁷

On October 9, 2018, the defendant filed an amended answer wherein it admitted that it had breached its duty of confidentiality and admitted that it was negligent in sending the plaintiff's medical records to the Children's Probate Court without the plaintiff's authorization. The defendant, however, denied that its actions were the proximate cause of the plaintiff's injuries and damages.

The case was tried to a jury over several days in late November and early December, 2018. The crux of the plaintiff's case was that the defendant's failure to notify her of the subpoena before sending her medical records to the Children's Probate Court was a substantial factor in causing her emotional harm. The plaintiff testified and presented testimonial and documentary evidence regarding Mendoza's harassment and lawsuits and her past and then current mental health history.

In its defense, the defendant contended that sending the plaintiff's medical records to the Children's Probate Court was not the proximate cause of her injuries. It argued that the Children's Probate Court mishandled the records and was the proximate cause of her injuries. The defendant also argued that the plaintiff's emotional distress was caused by Mendoza's harassment, communications, and lawsuits against her and her family.⁸

The jury returned a general verdict in favor of the plaintiff and awarded her noneconomic damages in the amount of $853,000.⁹ On March 7, 2019, the defendant filed a motion for a new trial, to set aside the verdict and for remittitur on the grounds that the court improperly (1) admitted a report prepared by the plaintiff's expert into evidence because it was speculative and permitted the jury to consider an award of future damages, (2) instructed the jury on future noneconomic damages, and (3) failed to provide a verdict sheet that differentiated between past and future damages. The court denied the defendant's motion.

The plaintiff also filed a motion for offer of judgment interest, attorney's fees, and postjudgment interest, which the defendant opposed. The court granted the plaintiff's motion and awarded offer of judgment interest at the rate of 12 percent per annum, postjudgment interest at the rate of 8 percent per annum, and attorney's fees of $350. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the court improperly precluded its expert witness, retired probate judge Robert K. Killian, Jr., from testifying that "it was extraordinarily abnormal for the [Children's] Probate Court clerk to have placed the plaintiff's medical records in a public file accessible by Mendoza." The defendant argues that the court erred in precluding Killian's testimony "regarding the [Children's] Probate Court clerk's failure to follow normal, expected protocols for confidentiality with respect to the handling of the plaintiff's medical records." The defendant contends that, "because Probate Courts are expected not to make medical records public, [the defendant's] sending the records to the [Children's] Probate Court was not a proximate cause of their public disclosure to Mendoza." The defendant asserts that Killian's testimony in this regard was crucial to its challenge to causation and, thus, that the court's preclusion of it was highly prejudicial to its defense. We are not persuaded.

The following facts are relevant to our resolution of the defendant's claim. On March 23, 2018, the defendant disclosed Killian as an expert witness to testify on the issues of liability and causation, stating that Killian had been a Probate Court judge for more than thirty years and had served as chief judge and president judge of the Connecticut Probate Assembly. The defendant expected Killian to testify that (1) whether the plaintiff's records were mailed or hand delivered to the court made no difference as to how the clerk was to handle them; (2) in 2005, Probate Court procedures in general required medical records to remain in the custody of the clerk under protective seal until the court ordered their release; (3) the Children's Probate Court clerk had mishandled the plaintiff's medical records by placing them in a publicly accessible file without a court order or the agreement of the parties; and (4) the clerk's mishandling of the records was the reason Mendoza gained access to the plaintiff's medical records.

On October 3, 2018, the plaintiff filed a motion in limine asking the court to preclude Killian from testifying that it was the clerk's mishandling of the plaintiff's medical records that proximately caused her injuries. The plaintiff first argued that the defendant had not made the Children's Probate Court an apportionment defendant and, therefore, the defendant should be precluded from blaming a nonparty for any negligence or harm caused to the plaintiff by the disclosure of her medical records. Second, the plaintiff noted that when she deposed Killian, he testified that Probate Court procedures are localized throughout Connecticut and that he had never presided at the Children's Probate Court in New Haven, where the plaintiff's records were mailed. Consequently, the plaintiff contended that Killian's proposed testimony was neither relevant nor...