Commissioner of Health Services v. William W. Backus Hosp.

• Decision Date: 03 October 1984
• Docket Number: No. 296276,296276
• Court: Connecticut Superior Court
• Parties: COMMISSIONER OF HEALTH SERVICES v. WILLIAM W. BACKUS HOSPITAL et al. -New Britain at Hartford

Page 937

485 A.2d 937

40 Conn.Supp. 188

COMMISSIONER OF HEALTH SERVICES v. WILLIAM W. BACKUS HOSPITAL et al.

No. 296276.

Superior Court of Connecticut,

Judicial District of Hartford-New Britain

at Hartford.

Oct. 3, 1984.

Robert Statchen, Asst. Atty. Gen., for plaintiff.

No appearance for defendants.

MARY R. HENNESSEY, Judge.

On June 22, 1984, an authorized agent of the commissioner of health services issued a subpoena duces tecum against the defendant Backus Hospital to procure information regarding medical treatment rendered by a hospital physician. The commissioner was acting under his authority to conduct investigations regarding possible violations of statutes or regulations by licensed physicians under the auspices of the Connecticut medical examining board, an agency within the department of health services. See General Statutes §§ 19a-14(a)(10), 19a-14(b)(1) and 20-8a. Specifically, the subpoena sought "[a]ny and all information, reports, etc., with reference to the care and treatment rendered by [a hospital physician to two named patients] ... including but not limited to peer review, utilization review, in-house investigations and recommendations, disciplinary actions and proceedings."

The hospital refused to comply with the subpoena based on its contention that such information is privileged, pursuant to the terms of General Statutes § 38-19a(d). The commissioner has petitioned this court for an order enforcing the subpoena duces tecum.

At issue is whether the commissioner of health services has a right of access to the peer review proceedings of a medical review committee.

The Connecticut medical examining board, established pursuant to General Statutes § 20-8a, is an agency within the department of health services. Section 20-13c of the General Statutes authorized the board to restrict, suspend or revoke the license or limit the practice of a physician upon a finding that such physician is unable to practice medicine with reasonable skill or safety for any of the following reasons: "(1) Physical illness or loss of motor skill, including but not limited to deterioration through the aging process; (2) emotional disorder or mental illness; (3) abuse or excessive use of drugs, including alcohol, narcotics or chemicals; (4) illegal, incompetent or negligent conduct in the practice of medicine; (5) possession, use, prescription for use, or distribution of controlled substances or legend drugs, except for therapeutic or other medically proper purposes; (6) misrepresentation or concealment of a material fact in the obtaining or reinstatement of a license to practice medicine; or (7) violation of any provision of this chapter or any regulation established hereunder." General Statutes § 20-13c.

In conjunction with this disciplinary authority, the department of health services is authorized to "[c]onduct any necessary review, inspection or investigation regarding qualifications of applicants for licenses or certificates, possible violations of statutes or regulations, and disciplinary matters." General Statutes § 19a-14(a)(10). "In connection with any investigation, the commissioner of health services or said commissioner's authorized agent may administer oaths, issue subpoenas, compel testimony and order the production of books, records and documents. If any person refuses to appear, to testify or to produce any book, record or document when so ordered, a judge of the superior court may make such order as may be appropriate to aid in the enforcement of this section." Id. Pursuant to this broad grant of subpoena power, the commissioner sought production of the hospital's peer review proceedings relative to the physician under investigation.

The hospital contends, however, that such information is shielded from discovery pursuant to General Statutes § 38-19a(d). This statute provides as follows: "(d) The proceedings of a medical review committee conducting a peer review shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider arising out of the matters which are subject to evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to the content of such proceedings; provided the provisions of this subsection shall not preclude (1) in any civil action, the use of any writing which was recorded independently ofsuch proceedings; (2) in any civil action, the testimony of any person concerning the facts which formed the basis for the institution of such proceedings of which he had personal knowledge acquired independently of such proceedings; (3) in any health care provider proceedings concerning the termination or restriction of staff privileges, other than peer review, the use of data discussed or developed during peer review proceedings; or (4) in any civil action, disclosure of the fact that staff privileges were terminated or restricted, including the specific restrictions imposed, if any."

The hospital argues that none of the enumerated statutory exceptions applies to this case and that release of the minutes of peer review proceedings to the plaintiff would thwart the intent of the statute, i.e., to promote the uninhibited evaluation of medical care rendered in a professional setting. The plaintiff contends, inter alia, that the statute does not apply to investigatory actions and that sufficient statutory protection exists protecting the confidential nature of these proceedings once such information is released to the department of health services.

No reported Connecticut cases have been found construing the applicability of § 38-19a(d) to investigations conducted by the department of health services. This issue has generally arisen in the context of medical malpractice litigation where the plaintiff seeks to bolster a negligence claim by use of peer review proceedings. See Pisel v. Stamford Hospital, 180 Conn. 314, 324-26, 430 A.2d 1 (1980). In Morse v. Gerity, 520 F.Supp. 470 (D.Conn.1981), the district court invoked the statutory privilege in a malpractice action denying the...