Edelstein v. Department of Public Health and Addiction Services, 15390

• Decision Date: 29 April 1997
• Docket Number: No. 15390,15390
• Citation: 692 A.2d 803,240 Conn. 658
• Court: Connecticut Supreme Court
• Parties: Barbara EDELSTEIN v. DEPARTMENT OF PUBLIC HEALTH AND ADDICTION SERVICES.

Page 803

692 A.2d 803

240 Conn. 658

Barbara EDELSTEIN v. DEPARTMENT OF PUBLIC HEALTH AND ADDICTION SERVICES.

No. 15390.

Supreme Court of Connecticut.

Argued Dec. 10, 1996.

Decided April 29, 1997.

Steven L. Seligman, Hartford, for appellant (plaintiff).

Peter L. Brown, Assistant Attorney General, with whom were Karen H. Fritzinger, Assistant Attorney General, and, on the brief, Richard Blumenthal, Attorney General, and Richard J. Lynch, Assistant Attorney General, for appellee (defendant).

Before CALLAHAN, C.J., and BERDON, NORCOTT, McDONALD and PETERS, JJ.

Opinion

NORCOTT, Associate Justice.

This appeal involves the interpretation of the physician-patient privilege statute, General Statutes § 52-146o. ¹ The principal issues raised by this appeal are: (1) whether § 52-146o applies to medical records containing patient communications made before the effective date of the statute; and (2) if so, whether the these records fall within the exception contained in § 52-146o (b)(3) for the disclosure of communications to a state agency in connection with its investigation of a licensed physician. The trial court ruled that the statute did not apply to the records at issue and, accordingly, ordered that the records be disclosed. We affirm the judgment of the trial court, albeit for different reasons.

The plaintiff, Barbara Edelstein, is a physician under investigation by the defendant, the department of public health and addiction services (department), ² for allegedly improper billing practices. The department is authorized by statute to investigate complaints against licensed physicians. See General Statutes § 19a-14 (a)(10). ³ In 1991, the department received a complaint from a health insurer, Blue Cross/Blue Shield of Connecticut (Blue Cross), ⁴ alleging that the plaintiff had submitted several claims for reimbursement for services that she had not rendered. The complaint also alleged that the plaintiff had wrongfully caused Blue Cross to reimburse her for services that the insurance policy did not cover.

On June 5, 1995, in connection with its investigation of the plaintiff's billing practices, the department served the plaintiff with a subpoena duces tecum pursuant to its subpoena power under § 19a-14 (a)(10). The subpoena sought the production of the medical records of approximately thirty patients who had been treated by the plaintiff from 1987 through 1989. ⁵ On June 6, 1995, the plaintiff filed an application to quash the subpoena, claiming that these records were privileged under § 52-146o and that none of her patients had consented to the disclosure of their records. On October 10, 1995, the trial court granted the plaintiff's motion.

On November 2, 1995, the department filed a motion to open the trial court's judgment. In support of its motion, the department relied on a recently decided Superior Court case, Rosado v. Bridgeport Roman Catholic Diocesan Corp., Superior Court, judicial district of Fairfield, Docket No. 93302072 (June 2, 1995), 14 Conn. L. Rptr. 392, 397, 1995 WL 348181, which held that § 52-146o does not apply to communications made before October 1, 1990, the effective date of the statute. The trial court agreed with Rosado, and concluded that the medical records at issue in the present case were not privileged because they contained communications made before the effective date of the statute. The trial court consequently granted the department's motion and denied the plaintiff's application to quash the subpoena. The plaintiff appealed to the Appellate Court from the judgment of the trial court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c).

On appeal, the plaintiff claims that § 52-146o prohibits her from disclosing records containing any patient communications, regardless of when such communications were made, without patient consent. The department responds that the records in question are not privileged because they contain communications made before the statute's effective date. In the alternative, the department argues that if § 52-146o does apply to these records, then they fall within the statute's exception for the disclosure of communications to the department in connection with an investigation of a complaint against a licensed physician. Although we agree with the plaintiff that § 52-146o does apply to these records, we conclude that the records fall within the statute's exception for the disclosure of communications to the department pursuant to an investigation.

I

We begin with the evolution of the physician-patient privilege in Connecticut. A common law privilege for communications made by a patient to a physician has never been recognized in this state. State v. Rollinson, 203 Conn. 641, 657, 526 A.2d 1283 (1987); State v. Hanna, 150 Conn. 457, 464, 191 A.2d 124 (1963); State v. Reid, 146 Conn. 227, 231, 149 A.2d 698 (1959); Zeiner v. Zeiner, 120 Conn. 161, 167, 179 A. 644 (1935); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.1988) § 12.8.1, p. 455. Although the plaintiff argues that these cases were wrongly decided and urges us to recognize a common law privilege for communications between a patient and a physician, we decline to do so in light of precedent and the legislature's subsequent action on this issue.

In 1990, the legislature created a broad physician-patient privilege when it enacted Public Acts 1990, No. 90-177, codified at § 52-146o. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.1988 & Sup.1995) § 12.8.1, p. 455. General Statutes (Rev. to 1991) § 52-146o (a) provides that a physician "shall not disclose ... any communication made to him by ... a patient ... unless the patient or his authorized representative explicitly consents to such disclosure." The purpose of the act is to protect the confidentiality of communications between a physician and a patient. See, e.g., 33 H.R. Proc., Pt. 14, 1990 Sess., p. 4860, remarks of Senator Richard D. Tulisano ("the bill is designed to insure that a patient/doctor confidentiality is maintained"). The act became effective on October 1, 1990. See General Statutes § 2-32. ⁶

As originally enacted in 1990, § 52-146o contained an exception for the disclosure of communications "pursuant to any statute or regulation of any state agency...." General Statutes (Rev. to 1991) § 52-146o (b). Prior to the enactment of this statute, the department had been able to obtain medical records relating to an investigation of a licensed physician pursuant to its subpoena power under § 19a-14 (a)(10). After the enactment of § 52-146o, however, there was confusion as to whether the new statutory privilege overrode the department's authority under § 19a-14 (a)(10) to subpoena medical records containing otherwise privileged communications, or whether the department's authority continued to be recognized under the exception contained in § 52-146o (b) for the disclosure of communications pursuant to any statute or regulation of a state agency. See 39 S. Proc., Pt. 5, 1996 Sess., p. 1699, remarks of Senator George L. Gunther (referring to Superior Court case that called into question department's authority to obtain access to potentially privileged medical records in connection with investigation of physician).

In 1996, the legislature amended § 52-146o by enacting Public Acts 1996, No. 96-47, § 13, codified at § 52-146o (b)(3). The 1996 amendment provides an additional exception to the physician-patient privilege for the disclosure of communications "to the Commissioner of Public Health for records of a patient of a physician ... in connection with an investigation of a complaint, if such records are related to the complaint...." General Statutes § 52-146o (b)(3). That amendment became effective on October 1, 1996. See Public Acts 1996, No. 96-47, § 13.

II

The medical records at issue in the present case contain communications made by the plaintiff's patients from 1987 through 1989, prior to the effective date of § 52-146o. The department sought disclosure of these records in 1995, subsequent to the effective date of § 52-146o, but prior to the effective date of the 1996 amendment. In deciding whether these medical records must be disclosed, we must determine whether the statute applies to these records and, if so, whether the exception contained in 1996 amendment permits the disclosure of these records to the department in connection with its investigation of the plaintiff.

A

In determining whether § 52-146o applies to the records at issue, we are guided by well defined principles of statutory interpretation. "Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Citations omitted; internal quotation marks omitted.) State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994).

We begin with the language of the statute. Under § 52-146o (a), "a physician ... shall not disclose ... any communication made to him by ... a patient ... unless the patient ... explicitly consents to such disclosure." (Emphasis added.) Although the statute uses the past participle, "made," to describe the communications, it does not use an auxiliary verb before the past participle to indicate the timing of the communications. As a result, it is unclear whether the statute applies to communications made before the statute's effective date, or only to those communications made after that date. Cf. Schieffelin & Co. v. Dept. of Liquor Control, 194 Conn. 165, 174-75, 479 A.2d 1191 (1984) (use of present perfect tense, "has had," to describe when distributorships come into existence indicates that act was...