Hopkins v. Balachandran

• Decision Date: 24 September 2013
• Docket Number: No. 34650.,34650.
• Citation: 76 A.3d 703,146 Conn.App. 44
• Court: Connecticut Court of Appeals
• Parties: Gary HOPKINS v. Kalipatti S. BALACHANDRAN et al.

146 Conn.App. 44

76 A.3d 703

Gary HOPKINS

v.Kalipatti S. BALACHANDRAN et al.

No. 34650.

Appellate Court of Connecticut.

Argued May 23, 2013.

Decided Sept. 24, 2013.

Dana M. Hrelic, with whom were Brendon P. Levesque, Hartford, and, on the brief, Karen L. Dowd, Hartford, for the appellant (plaintiff).

Michael R. McPherson, Hartford, for the appellees (defendants).

BEACH, ROBINSON and BORDEN, Js.

ROBINSON, J.

The plaintiff, Gary Hopkins, appeals from the judgment of the trial court denying his motion for partial summary judgment and granting the cross motion for summary judgment of the defendants, Kalipatti S. Balachandran, a physician, and New England Family Medical and Walk In Center, LLC. The dispositive issue on appeal is whether the plaintiff waived his right to claim confidentiality in a medical document improperly disclosed by the defendants to his employer in violation of the privacy regulations of the Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104–191, 110 Stat.1936 (privacy rule), when he had disclosed previously a different version of the document to his employer.¹ We conclude that the plaintiff waived his right to claim confidentiality in the subject medical record and, therefore, affirm the judgment of the trial court.

The following undisputed facts, as found by the court, and procedural history are necessary to our resolution of this issue. “The plaintiff ... was a correctional officer employed by the Connecticut Department of Correction. On April 24, 2008, he presented as a ‘walk-in’ patient to the defendants' medical clinic with complaints of ‘flu-like symptoms.’ After an examination by Dr. Kalipatti Balachandran, [the plaintiff] left the clinic. He left with a copy of his ‘superbill.’ A superbill is an itemized form listing various medical services with code numbers that physicians ordinarily submit to insurance companies or Medicare/Medicaid for reimbursement. The form lists dozens of conditions and procedures, and the doctor circles or checks the applicable items. The form completed at the doctor's office ... had certain items circled or checked, but it did not contain any language excusing [the plaintiff] from work until any stated future date, and it was not signed.

“The plaintiff took time off from work on April 24, 25, 26, and 27, 2008, as sick time. On April 28, 2008, he filed a form with his employer requesting that his absence from work on those dates be reclassified as holiday time, as he had previously exhausted his available sick time. He also supplied his employer with a copy of the superbill from Dr. Balachandran's office. The copy he submitted, however, was different from the original at the doctor's office. The copy submitted by [the plaintiff] had additional items circled or changed, and it had handwriting on it purportedly verifying his absence from work due to illness with a return to work date of April 28. It contained an illegible signature, and the return to work date was ‘4–28.’ That date appeared to have been written over or manipulated. It looked like it had been changed from 4–24 to 4–28.

“Suspecting that the note was fraudulent due to the date manipulation, the plaintiff's employer referred the matter to the plaintiff's prison shift manager, Captain Christopher Corey, for investigation. Captain Corey called the doctor's office on May 5, 2008, particularly to determine whether the return to work date had been altered. He talked with the doctor's office assistant, Angel Caouette. He faxed to her a copy of the note supplied by the plaintiff. He asked if the return to work date was 4–24 or 4–28. She sounded perplexed, and said her office did not issue notes like that. She said she would investigate it. Captain Corey called back on May 9, 2008, and spoke with Dr. Balachandran. At that time, Dr. Balachandran told him that he did not issue the plaintiff a doctor's note, and that the handwriting on the superbill filed with the prison was not his handwriting. He also implied that certain medical information on the form had been changed. The matter was referred to the Department of Correction Security Division. That unit conducts additional investigations in such matters. Dr. Balachandran's office was later asked to send a copy of the original superbill to the plaintiff's employer for comparison. Dr. Balachandran sent a copy of the original superbill to the plaintiff's supervisor, Deputy Warden Donald Cyr, on May 21, 2008, with a cover letter. In the letter, Dr. Balachandran wrote that on comparing the document submitted by plaintiff to the Department of Correction with the original on file at his office, ‘we determined that the document had been altered after it left our office. Furthermore, there was no out of work note issued from our office regarding [the plaintiff].’

“The plaintiff told the Department of Correction that he did not falsify the document. He was reported to have said that a secretary or nurse at the doctor's office, whose name he could not remember, wrote on the document, but that she denied it.

“The plaintiff was dismissed from state service on August 4, 2008, for violations of the Department of Correction's employee conduct rules, administrative directive 2.17. His dismissal letter stated, ‘Specifically, on April 28, 2008, you submitted a request for conversion of leave form to cover your insufficient balance of sick time. The medical documentation you provided with your request form was altered and falsified. In addition, you were less than truthful during the investigation.’ “

The plaintiff subsequently filed a complaint against the defendants. The operative complaint contained a claim of negligence against each defendant for the improper disclosure of his health information. He alleged that as a direct result of the defendants' disclosure, he was terminated by his employer. The plaintiff filed a motion for summary judgment as to liability only, arguing that there were no genuine issues of material fact and that he was entitled to judgment as a matter of law. The defendants filed a cross motion for summary judgment.²On March 28, 2012, the court denied the plaintiff's motion for summary judgment and granted the defendants' cross motion for summary judgment.

The court found, as evidenced by the privacy rule, that the defendants had a duty to use reasonable care in maintaining the confidentiality of the plaintiff's medical records and that they breached this duty when they disclosed and discussed the plaintiff's protected health information without his release or consent.³ Nevertheless, the court concluded that the plaintiff had waived his right to claim confidentiality in the superbill, in any form, because he had voluntarily disclosed it to his employer when he used it to support his absence from work. The court reasoned: “Because the plaintiff failed to claim his privilege or right at the time of disclosure, and because the plaintiff voluntarily disclosed the information to his adversaries, the plaintiff cannot now attempt to use the court to protect material that he failed to safeguard on his own.... He voluntarily disclosed the superbill to the Department of Correction on April 28, 2008. He cannot complain of the defendants' disclosure of the superbill to the Department of Correction on and after May 5, 2008.” (Citation omitted.) Accordingly, the court denied the plaintiff's motion for partial summary judgment and granted the defendants' cross motion for summary judgment. This appeal followed.

On appeal, the plaintiff claims that the court improperly concluded that he had waived any right to claim confidentiality in the superbill for two reasons. First, he argues that the court erred because the applicable exception to the preemption provision of the privacy rule does not apply and thus waiver cannot be pleaded in this case. The plaintiff maintains that because the requirements for a health care provider's disclosure of protected medical information, namely, a written authorization, and the exceptions for when authorization is not required under the privacy rule are more stringent than those allowed for the common-law defense of waiver, the privacy rule preempts the less stringent waiver doctrine. Second, the plaintiff argues that the court improperly found waiver because the superbill provided by him to his employer was different from the one provided by the defendants and because the defendants provided additional information beyond the superbill. He asserts that his employer was able to gain additional information about his protected health information as a result of the defendants' actions. We conclude that the privacy rule does not preempt the common-law defense of waiver, and also conclude that the court properly found waiver in this case.

“The standard of review of motions for summary judgment is well settled. Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court.... Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary.” (Internal quotation marks omitted.) Weiss v. Weiss, 297 Conn. 446, 458, 998 A.2d 766 (2010).

I

The plaintiff first argues that the privacy rule preempts the equitable defense of...