Lieb v. Department of Health Services

• Decision Date: 07 June 1988
• Docket Number: No. 5503,5503
• Citation: 14 Conn.App. 552,542 A.2d 741
• Court: Connecticut Court of Appeals
• Parties: Julian LIEB v. DEPARTMENT OF HEALTH SERVICES.

Page 741

542 A.2d 741

14 Conn.App. 552

Julian LIEB v. DEPARTMENT OF HEALTH SERVICES.

No. 5503.

Appellate Court of Connecticut.

Argued Dec. 8, 1987.

Decided June 7, 1988.

Richard J. Lynch, Asst. Atty. Gen., with whom, on the brief, were Joseph I. Lieberman, Atty. Gen., and Lisa H. Oliveri, Asst. Atty. Gen., for appellant (defendant).

David W. Skolnick, with whom, on the brief, was Patricia Kilkenny, New Haven, for the appellee (plaintiff).

Before DALY, NORCOTT and FOTI, JJ. DALY, Judge.

The defendant appeals from the trial court's granting of the plaintiff's motion to quash a subpoena duces tecum served on the plaintiff by the defendant. The trial court quashed the subpoena on the ground that the information sought was protected by the psychiatrist-patient privilege created by the legislature.

The sole issue on appeal is whether General Statutes § 19a-14(a)(10), ¹ which authorizes the department of health to investigate members of the health profession, overrides the psychiatrist-patient privilege of General Statutes § 52-146e(a). ² In holding that the legislature did not intend the psychiatrist-patient privilege to be nullified by General Statutes § 19a-14(a)(10), we find no error in the trial court's decision.

The facts are not in dispute. The plaintiff, Julian Lieb, a physician licensed in this state, is engaged in the private practice of psychiatry. Lieb is on the faculty of the University of Connecticut School of Medicine and is widely respected by those in the profession as a specialist in the treatment of depression. Several of the plaintiff's patients suffer from severe depressive disorders for which he has prescribed psychostimulant medication. On March 27, 1986, the department of health services (hereinafter department) requested that the plaintiff attend a "compliance conference," ³ a meeting which addresses the concerns of the profession. Specifically, the department sought information regarding the plaintiff's prescribing of the psychostimulant medication. The plaintiff voluntarily attended this conference where various prescriptions and the amount of medications prescribed were discussed. Subsequently, the department contacted six of the plaintiff's patients in an attempt to secure consent for their medical records for the department's records. The plaintiff, in an attempt to address the concerns of the department while protecting the confidentiality of his patients, provided blind case summaries from which the personal communications of the patients had been deleted. Despite an unsuccessful attempt to secure consent from the patients, the department issued a subpoena duces tecum to the plaintiff, requiring him to provide the complete patient records of five named patients, relevant medical records, notes, medication sheets, and medical releases provided by the patients.

On July 1, 1986, the plaintiff moved pursuant to General Statutes § 52-146f ⁴ to quash the department's subpoena. The trial court, on September 2, 1986, granted the motion.

The defendant argues that the public policy concerns which enable the department to investigate the qualifications of licensed physicians supersede the psychiatrist-patient privilege. In support of its argument, the department cites In re Board of Medical Review Investigation, 463 A.2d 1373 (R.I.1983). The state legislature of Rhode Island had authorized the board to investigate allegations of professional misconduct within the medical field and a physician appealed from the trial court's denial of his motion to quash a subpoena duces tecum. The Rhode Island Supreme Court upheld the lower court's ruling, stating: "A physician under investigation for professional misconduct subverts rather than supports the rights of the patient by distorting the patients privilege to his own ends." Id., 1376, 463 A.2d 1373. The defendant further maintains that General Statutes § 52-146f ⁵ enumerates the situations in which consent of the patient is not required, specifically, subsection six which provides "[c]ommunications or records may be disclosed to the commissioner of health services in connection with any inspection, investigation or examination of an institution...." We find that the defendant's argument is without merit.

We begin our analysis by noting that in Connecticut there is no common law physician-patient privilege. Zeiner v. Zeiner, 120 Conn. 161, 167, 179 A. 644 (1935) ("information acquired by physicians in their professional capacity has never been privileged"). Our legislature has created a privilege to cover "all oral and written communications and records thereof relating to diagnosis or treatment of a patient's mental condition between the patient and psychiatrist, or between any of such persons and a person participating under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment, wherever made, including communications and records which occur in or are prepared at a mental health facility." General Statutes § 52-146d(2).

An examination of the statutes concerning the privilege is determinative of the issue in this case. Communications between a psychiatrist and a patient "shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j; inclusive. Except as provided in sections 52-146f to 52-146i, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identifies a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative." General Statutes § 52-146e(a). ⁶ In the enactment of the privilege statute, our legislature anticipated circumstances in which disclosure might be appropriate. General Statutes § 52-146f(1) through (6) dictates six statutory exceptions to the privilege which, however, are inapplicable to this case. The defendant vigorously argues that the statutory exception of General Statutes § 52-146f(6) quoted above is determinative of this case. The defendant's argument is incorrect as subsection (6) clearly applies to the investigation of institutions and not individual psychiatrists.

This court has recently stated that "[i]t is axiomatic that courts are required to read a statute in light of its purpose." State v. Rado, 14 Conn.App. 322, 329, 541 A.2d 124 (1988). It is commonly understood that "the purpose of the privilege is to give to the patient an incentive to make full disclosure to a physician in order to obtain effective treatment free from the embarrassment and invasion of privacy which could result from a doctor's testimony." State v. White, 169 Conn. 223, 234-35, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). In reviewing this statute, courts must presume that the legislature incorporated the purpose of the statute in every sentence, clause, phrase and item of punctuation of the statute. See B. Holden & J. Daly, Connecticut Evidence § 50. In this case, we must assume that if the legislature had intended to make the medical records of psychiatrists available to the department of health, it would have clearly and unequivocally expressed the intention to do so in the statutes. Requiring the judicial branch to create a procedure on a case by case basis is uncertain and undoubtedly unintended manner of execution.

The defendant correctly argues that the exceptions to the psychiatrist-patient privilege "are not limited to those found in General Statutes § 52-146f." State v. Toste, 178 Conn. 626, 629, 424 A.2d 293 (1979); State v. White, supra, 169 Conn. at 234, 363 A.2d 143. The defendant's claim, in substance, is that the department's statutory duty to conduct all necessary investigations of licensed physicians throughout the state constitutes a sufficient basis for an exception, in addition to those provided in § 52-146f, to the psychiatrist-patient privilege. The fact that the department, as licensing authority, is charged with the maintenance of health care standards pursuant to General Statutes § 20-13e is not in dispute. Moreover, it is not in contention that the department has the power to issue subpoenas and "order the production of books, records and documents" pursuant to General Statutes § 19a-14(a)(10). ⁷ These general provisions, however, do not permit the department to derogate the explicit statutory privilege between a psychiatrist and the patient. Our Supreme Court has held that, in construing two statutes, the clear language of a narrowly tailored provision is not to be superseded by the broad, general provisions of another statute. See, e.g., Atwood v. Regional School Dist. No. 15, 169 Conn. 613, 363 A.2d 1038 (1975). Furthermore, the general language providing the authority the power to carry out its duties is not specific enough to put a patient on notice that his or her communication with a psychiatrist would not be disclosed.

Furthermore, our holding today is substantiated by the department's failure to show reasonable cause for the production of complete patient records. Recently, the California Court of Appeals decided a case based on circumstances virtually identical to those in the present case. In Wood v. Superior Court, 166 Cal.App.3d 1138, 1150, 212 Cal.Rptr. 811 (1985), the California medical quality board, similar to the department in the present case, conducted an investigation of physicians' practice of prescribing certain controlled substances. As in the present case, the board in Wood issued administrative subpoenas requiring the physician to produce complete medical records of certain named patients. The court overturned the trial court's order of compliance holding that the patient's privacy interests were invaded and that the board's showing was insufficient to sustain the omnibus demand for the complete medical records of the patients. The court concluded that: "If the trial court is to make the decision of reasonable...