Pavlinko v. Yale-New Haven Hosp.

• Decision Date: 31 January 1984
• Docket Number: YALE-NEW
• Citation: 470 A.2d 246,192 Conn. 138
• Court: Connecticut Supreme Court
• Parties: Peter PAVLINKO v.HAVEN HOSPITAL et al.

Page 246

470 A.2d 246

192 Conn. 138

Peter PAVLINKO v. YALE-NEW HAVEN HOSPITAL et al.

Supreme Court of Connecticut.

Argued Nov. 3, 1983.

Decided Jan. 31, 1984.

Robert T. Harrington, Boston, Mass., with whom, on the brief, was Robert D. Mercer-Falkoff, Branford, for appellant (plaintiff).

William B. Rush, Bridgeport, for appellees (named defendant et al.).

Michael P. Del Sole, New Haven, for appellees (defendant Yale University School of Medicine et al.).

Before SPEZIALE, C.J., and PARSKEY, SHEA, SPONZO and MENT, JJ. PARSKEY, Associate Justice.

The issue presented by this case is whether dismissal of a malpractice action is appropriate because of the refusal of the plaintiff to answer questions at a deposition concerning the removal, custody and control of the hospital records pertaining to the plaintiff's decedent. On the facts of this case we hold that dismissal is an appropriate sanction.

The plaintiff, as administrator of the estate of his wife, Julie Pavlinko, brought the present action against the Yale-New Haven Hospital, the Yale University School of Medicine and certain individual physicians alleging that the defendants were negligent in the care and treatment of his wife during the period from December 4, 1978, until the date of her death on January 11, 1979. Following the death of the plaintiff's decedent, original hospital records belonging to the Yale-New Haven Hospital were missing from the hospital and were not returned to the hospital for a period of two years. Thereafter, the defendants filed interrogatories directed to the plaintiff which sought to elicit information relating to the possession and control of the original hospital records during the period in question. The plaintiff answered those interrogatories under oath indicating that he obtained possession and control of the original hospital records by taking them from the hospital, and that he had them in his possession and control from on or about January 12, 1979, to on or about February 6, 1981.

On August 13, 1981, the defendants examined the plaintiff under oath at a deposition held pursuant to notice. Portions of that deposition were concerned with attempts to establish the integrity and reliability of the hospital records admittedly taken from the hospital by the plaintiff. Accordingly, at the deposition the plaintiff was asked a number of questions ¹ which he refused to answer under the sole claim of privilege against self- incrimination. At no time did the plaintiff object to the questions on the ground of immateriality nor at any time did he seek a protective order from the court precluding inquiry into the area covered by these questions. Practice Book § 221.

Following the refusal of the plaintiff to respond to the questions, the defendants filed motions to dismiss the plaintiff's action. The motions to dismiss also contained an alternative request that the court order the plaintiff to respond to the questions asked at the deposition. The plaintiff, acting through his counsel, steadfastly refused to answer any of the questions propounded at the deposition, and only volunteered to answer the questions after the court had dismissed the plaintiff's case based upon an outright refusal to answer the questions. There is nothing in the record before us to suggest nor does the plaintiff represent that at any time prior to the entry of the judgment of dismissal he indicated his willingness to answer the questions propounded to him at the deposition.

Any party may be compelled by notice to give a deposition. Practice Book § 246. The giving of the notice prescribed by § 244, unless modified by the court, constitutes an order to the deponent to appear at the time and place designated in the notice and to submit to examination and cross-examination as permitted at trial. Practice Book § 247. All questions, including those objected to, are to be answered; Practice Book § 247(b); unless the objecting party procures from the court a protective order precluding or limiting the scope or disclosure of discovery. Practice Book § 221.

In the event of a party's failure to answer any or all questions at a deposition the court may make such order as the ends of justice require. Practice Book § 231. Possible sanctions may include (1) the entry of a nonsuit or default; (2) an award of costs including attorney's fees; (3) an order that certain facts shall be taken as established; (4) an order that certain evidence shall be excluded; and (5) the entry of a judgment of dismissal. Factors to be considered in determining an appropriate sanction are (1) the cause of the deponent's failure to respond to the posed questions, that is, whether it is due to inability rather than the willfulness, bad faith or fault of the deponent; Societe Internationale Pour Participations Industrielles v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1095, 2 L.Ed.2d 1255 (1958); (2) the degree of prejudice suffered by the opposing party, which in turn may depend on the importance of the information requested to that party's case; and (3) which of the available sanctions would, under the particular circumstances, be an appropriate response to the disobedient party's conduct.

Of all the sanctions available to the court only dismissal was viable in the circumstances. ² An order of nonsuit would have been completely ineffectual. Since the plaintiff could have brought a new action within a year of the nonsuit; General Statutes § 52-592(a); the result would be to postpone the issue to a later date. An award of costs including attorney's fees would have some effect but could hardly be expected to produce the requested information. An order establishing facts or precluding evidence would be inapplicable to the problem at issue here. Dismissal, then, being the only feasible alternative, the only remaining question is whether the judgment should have been rendered forthwith or only after the refusal to respond to an order of compliance.

The plaintiff's refusal to respond in this case, though under a claim of right, was intentional. We shall consider shortly the plaintiff's stated reason for his recalcitrance. Suffice it to observe at this point that if the disobedient party's refusal to testify is intentional, if a sufficient need for the information requested is shown by the opposing party, and if it does not appear that the disobedient party, having failed to comply with the order embodied in the rules, is inclined to change his position, then dismissal is an appropriate sanction. In such situations dismissal serves not only to penalize those whose conduct warrants such a sanction but also to deter those who might be tempted to such conduct in the absence of such deterrent. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976).

The plaintiff argues that before dismissing the case, the court should have ordered him to answer the questions in issue. This argument would be more persuasive if the plaintiff had expressed a willingness to comply with such an order. The defendants moved for a dismissal or in the alternative for an order of compliance. There is nothing in the record before us to suggest, nor does the plaintiff aver, that at the hearing on the motion he represented to the court that, if so ordered, he would respond to questions which he refused to answer at the deposition under a claim of privilege. Faced, then, with the plaintiff's assertion that he had a right to deny to the defendants answers to pertinent questions about the missing records while, at the same time, pursuing his malpractice action against them, the court properly exercised its discretion in favor of dismissing the action.

The plaintiff contends that he had a right to assert his privilege against self-incrimination. Granted. The critical question, however, is whether such assertion can be advanced at the expense of an opposing party in a civil action. Having been haled into court by the plaintiff the defendants had a right to resort to discovery in order to prepare their defense. Of critical importance to that defense were the original hospital records. That these records had been taken from the hospital by the plaintiff and had been kept by him or were under his control for more than two years suggested the possibility that they may have been tampered with in some fashion. The plaintiff's responses during the deposition to questions about the condition of the records were not completely informative. However sincere the plaintiff may have been in claiming the privilege, the effect of such assertion was to severely limit the scope of the inquiry and thus to make the defendants the innocent victims of the plaintiff's self-created predicament. In these circumstances it is not unfair to compel the plaintiff to choose between silence and the pursuit of his malpractice claim.

The privilege against self-incrimination is a constitutional shield against a person being compelled to convict himself out of his own mouth. It may not be used as a sword to deny others information which is rightfully theirs. A plaintiff cannot use one hand to seek affirmative relief in court and with the other lower an iron curtain of silence against otherwise pertinent and proper questions which may have a bearing upon his right to maintain his action. Stockham v. Stockham, 168 So.2d 320, 321 (Fla.1964). A plaintiff who exercises his privilege against self-incrimination to refuse to answer questions pertinent to the issues involved in a civil action risks having his complaint dismissed upon timely motion. Bramble v. Kleindienst, 357 F.Sup. 1028, 1036 (D.Colo.1973); Kisting v. Westchester Fire Ins. Co., 290 F.Sup. 141, 149 (W.D.Wis.1968); see Brown v. United States, 356 U.S. 148, 160, 78 S.Ct. 622, 629, 2 L.Ed.2d 589, reh. denied, 356 U.S. 948, 78 S.Ct. 776, 2 L.Ed.2d 822 (1958) (Black, J., dissenting); annot., 4 A.L.R.3d 545.

It remains to...