State of Connecticut v. Charlotte Hungerford Hospital (2010)

MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR ORDER (# 101)

On May 7, 2010, the plaintiff, the state of Connecticut, filed an application for order against the defendant, Charlotte Hungerford Hospital.¹  The plaintiff requests an order from the court pursuant to General Statutes § 4-151(c) and (e), compelling the defendant's compliance with the claims commissioner's November 12, 2009 subpoena duces tecum.   Specifically, the plaintiff seeks to compel the defendant to turn over documents ordered produced by James R. Smith, the state of Connecticut's claims commissioner, in Charette v. State, Claim 21595.

The plaintiff alleges that in the case before the claims commission, the claimant, Jodey Charette, as co-administrator of the estate of Dayna Ashley Charette, seeks estate damages from the plaintiff as a result of the death of Dayna Ashley Charette, who was in the custody of the Department of Correction and, “on the day immediately prior to her death, the Litchfield County Judicial marshals.”   The plaintiff alleges that the marshals transported the decedent to the defendant hospital on the day before her death.   At the defendant hospital the decedent allegedly received a “large dose of methadone,” and the Connecticut Medical Examiner concluded that the decedent's death was due to a methadone overdose.²

In the case before the claims commission, to which the defendant in the present matter is not a party, the plaintiff sought documents related to the decedent's case through deposition subpoenas.   Specifically, the plaintiff sought:  “1. Copies of all documents regarding the licensing of the Charlotte Hungerford Hospital pharmacy allowing the dispensing and administration of all narcotic drugs, including but not limited to Methadone, Suboxone and/or Buprenorphine;  any and all policy and procedures with regard to the dispensing of Methadone, any and all emergency room procedures, directives, and policies regarding the dispensing or administration of Methadone including but not limited to any limitations on dosage or dispensing of Methadone and manner of dispensing Methadone;  and any and all documents pertaining to the qualifications required of the individual who administers the dosage and the diagnostic criteria which must be met before Methadone or any other narcotic may be dispensed. 2. Copies of any internal investigation or review reports, including but not limited to policy reviews or emergency room procedure reviews conducted by Charlotte Hungerford Hospital regarding the treatment provided to Dayna Ashley Charette on August 31, 2007. 3. Copies of any and all health records, reports, or documents of any kind or description, in your possession or that you have access, related in any way to Dayna Ashley Charette, DOB:  11/21/86, including but not limited to pharmacy records, physician's orders, clinical records, intake sheets, nurse's notes, doctor's notes, bills, lab reports, x-rays, test results, referrals to any other care provider or to any state or private agency of any kind.   The term documents includes pictures, documents or graphics maintained electronically, in writing or otherwise.”

The defendant filed motions to quash with the claims commissioner on August 24, 2009.   With regard to the plaintiff's first two requests, the defendant sought to quash the plaintiff's deposition subpoenas on the grounds that:  “(1) The documents requested are irrelevant to the present proceedings before the claims commissioner;  and (2) Some of the documents requested are privileged from disclosure pursuant to [General Statutes § 19a-17b].” ³  On September 2, 2009, the plaintiff filed a memorandum in opposition to the defendant's motion to quash.   On November 12, 2009, the claims commissioner served a subpoena duces tecum on the defendant's record keeper in which he orders it to “produce ․ all reports, statements, documents and materials in your possession as set forth in Schedule A attached hereto.” ⁴

The defendant wrote to the claims commissioner on December 8, 2009, in response to his subpoena.   In that letter, the defendant stated that while it would turn over the patient's records, it would not turn over the remaining documents on the grounds that those documents were privileged and/or irrelevant to the case before the claims commission.⁵  As a result of the defendant's failure to comply with the commissioner's subpoena duces tecum, the plaintiff filed the present application pursuant to § 4-151(e).   Once again, the plaintiff seeks an order compelling the defendant to comply with the claims commissioner's subpoenas duces tecum.   On May 18, 2010, the defendant filed an objection to the plaintiff's present application.⁶  This matter was heard at the short calendar on June 1, 2010.

DISCUSSION

“The legislature created the office of the claims commissioner to serve as the gatekeeper through which [actions] against the state must pass ․ The Appellate Court [has] correctly noted that [c]hapter 53 of the General Statutes, §§ 4-141 through 4-165, titled ‘Claims Against the State,’ describes the responsibilities and powers of the claims commissioner ․ We previously have indicated our understanding of the significance of this statutory scheme:  [Chapter 53] expressly bars [actions] upon claims cognizable by the claims commissioner except as he may authorize, an indication of the legislative determination to preserve sovereign immunity as a defense to monetary claims against the state not sanctioned by the [claims] commissioner or other statutory provisions.”  (Citations omitted;  internal quotation marks omitted.)  Lyon v. Jones, 291 Conn. 384, 401, 968 A.2d 416 (2009).

General Statutes § 4-151 relates to hearings before the claims commission and provides in relevant part:  “(b) The Claims Commissioner may call witnesses, examine and cross-examine any witness, require information not offered by the claimant or the Attorney General and stipulate matters to be argued.   The Claims Commissioner shall not be bound by any law or rule of evidence, except as he may provide by his rules. (c) The Claims Commissioner may administer oaths, cause depositions to be taken, issue subpoenas and order inspection and disclosure of books, papers, records and documents.   Upon good cause shown any such order or subpoena may be quashed by the Claims Commissioner. (d) If any person fails to respond to a subpoena, the Claims Commissioner may issue a capias, directed to a state marshal to arrest such person and bring such person before the Claims Commissioner to testify. (e) If any person refuses to testify or to produce any relevant, unprivileged book, paper, record or document, the Claims Commissioner shall certify such fact to the Attorney General, who shall apply to the superior court for the judicial district in which such person resides for an order compelling compliance.   Further refusal of such person shall be punished as provided by section 2-46 ․”

General Statutes § 4-157 governs the claims commissioner's procedures and provides:  “The Claims Commissioner shall adopt regulations in accordance with the provisions of chapter 54, not inconsistent with the policy and provisions of this chapter, governing his proceedings.   The regulations shall avoid formal and technical requirements, but shall provide a simple, uniform, expeditious and economical procedure for the presentation and disposition of claims.   Finally, § 4-160(a) governs the claims commissioner's ability to authorize suit against the state and provides in relevant part:  “When the Claims Commissioner deems it just and equitable, the Claims Commissioner may authorize suit against the state on any claim which, in the opinion of the Claims Commissioner, presents an issue of law or fact under which the state, were it a private person, could be liable.”

In its application, the plaintiff asserts that the court has the authority to order the defendant's compliance with the claims commissioner's order pursuant to General Statutes § 4-151(c) and (e).   In its objection to the plaintiff's application, the defendant raises three major arguments.   First, the defendant argues that the claims commissioner has limited statutory authority, which must be strictly construed.   The defendant asserts that the plaintiff has failed to prove that the claims commissioner has jurisdiction over the defendant, a non-party to the underlying claims case, under General Statutes § 4-160.   Moreover, the defendant argues that the plaintiff's purpose in obtaining these documents is to establish the defendant's negligence, which is beyond the claims commissioner's scope of authority.   Second, although the defendant concedes that the proceedings before the claims commission are not civil actions, which impacts whether they are subject to the peer review privilege in General Statute § 19a-17b, the defendant argues that the claims commissioner is not entitled to these documents because they do not “relate” to the claims proceeding under § 4-160(a).⁷

The defendant's third and final argument is that the claims act is an unconstitutional delegation of authority under article second of the constitution of Connecticut and, as a result, all process issued under the act is void and unenforceable.⁸  Specifically, the defendant argues that:  (1) the act violates the separation of powers doctrine under article second of the constitution of Connecticut;  (2) the lack of clear guidelines governing the power delegated to the claims commission underscores the unconstitionality of the act and the commissioner's authority;  and (3) if the commissioner is deemed to be a member of the legislative branch, then the delegation of legislative authority to the commissioner violates the rule of bicameralism and presentment in article third of the constitution of Connecticut.

In a reply memorandum filed on May 28, 2010, the plaintiff disputes the defendant's assertions and argues that the claims commissioner has the authority to consider discovery disputes, order discovery and issue subpoenas.   The plaintiff asserts that the applicable statutory scheme at issue on this motion is § 4-151, which provides the claims commissioner with broad discretion in discovery matters, including the ability to exercise jurisdiction over non-parties.   As a result, the plaintiff argues that § 4-151(e) “vests this court only with the administrative authority to order compliance with the subpoena already at issue by the claims commissioner.”   The plaintiff argues that the defendant is trying to have the court re-hear its motions to quash, which the claims commissioner has already denied.   Moreover, the plaintiff asserts that the documents at issue are relevant and unprivileged and that the plaintiff's purpose in trying to obtain these documents is to establish whether the doctor and hospital's actions were foreseeable, not to establish the defendant's negligence.   Finally, the plaintiff asserts that the claims act is constitutional.   Specifically, the plaintiff argues, the claims act has been law for quite some time, and the defendant has no authority for its arguments.

I

THE CLAIMS COMMISSIONER'S AUTHORITY

“When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ․ In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ․ When a statute is not plain and unambiguous, we also look for interpretive guidance 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.”  (Internal quotation marks omitted.)  Esposito v. Simkins Industries, Inc., 286 Conn. 319, 327, 943 A.2d 456 (2008).

“As noted, the claims commissioner is empowered by § 4-151(c) to order discovery.   The legislature authorized a process and sanctions for failure to comply in § 4-151(e).”   Nelson v. Dettmer, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 07 5012152 (November 13, 2008, Berger, J.) (46 Conn. L. Rptr. 669, 672).   While the court agrees with the defendant's assertion that the claims commissioner's authority must be strictly construed, the court also concludes that the claims commissioner's power with regard to discovery is broad under the plain language of applicable statute here, § 4-151.  Section 4-151(c) does not provide that the claims commissioner may only issue subpoenas against parties before the commission.   In fact, § 4-151(c) does not reference any party or person and simply states that the commissioner “may administer oaths, cause depositions to be taken, issue subpoenas and order inspection and disclosure of books, papers, records and documents.”   Despite this, § 4-151(e) allows the attorney general to apply for an order against “any person,” who refuses to produce “relevant” documentation.   Reading these subsections together, the court cannot conclude that the commissioner's power to issue subpoenas only extends to parties in the case.

As to the defendant's assertion that the plaintiff's only purpose in trying to obtain these documents is to establish the defendant's negligence, which is beyond the commissioner's scope of authority, and that these documents are non-discoverable because they do not “relate” to whether the state could be liable under § 4-160, the court agrees that the claims commissioner's only authority is to make a determination as to whether the case before it “presents an issue of law or fact under which the state, were it a private person, could be liable.”  (Emphasis added.)   But, the defendant has not convinced the court that the subpoena exceeds the authority of the commissioner.   The court accepts the plaintiff's argument that the purpose of the subpoena is not to determine the liability of the defendant but to determine the issue of foreseeability in regard to a claim against state employees.   In addition, the commissioner is entitled to a presumption that, as a public official carrying out his official duties, he is properly performing his duties and not engaged in an improper act beyond his authority.  Manatuck Associates v. Conservation Commission, 28 Conn.App. 780, 793, 614 A.2d 449 (1992);  see also Aczas v. Stuart Heights, Inc., 154 Conn. 54, 58-59, 221 A.2d 589 (1966).   The defendant has not rebutted that presumption simply by asserting that the purpose of the subpoena was improper.

Moreover, although the defendant asserts that the applicable discovery standard is whether these documents “relate” to the state's potential liability under § 4-160, the court disagrees and concludes that the applicable standard is found in § 4-151(e), which refers to “relevant” and “unprivileged” documents, not “related” documents.   Once again, this court can only assume that the claims commissioner determined that these documents were relevant to its determination of whether the state could be liable.⁹  Additionally, although it is unclear whether the defendant asserts a privilege under § 19a-17b in the present matter, the court concludes that the peer review privilege is inapplicable to actions before the claims commission.

Section 19a-17b(a)(2) defines “peer review” as “the procedure for evaluation by health care professionals of the quality and efficiency of services ordered or performed by other health care professionals, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review and claims review,” and § 19a-17b(d) provides in relevant part that “[t]he 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 ․” (Emphasis added.)   The defendant concedes that proceedings before the claims commission do not constitute civil actions, and Director of Health Affairs Policy Planning v. Freedom of Information Commission, 293 Conn. 164, 977 A.2d 148 (2009), supports this conclusion.

In Director of Health Affairs, the court held that the peer review privilege in § 19a-17b was inapplicable to cases before the Freedom of Information Commission and noted:  “[W]e have never concluded that a proceeding before an administrative agency necessarily is a civil action.   Although the question of whether such a proceeding could under no circumstances constitute a civil action is not before us today-and we expressly do not decide that issue-we note that administrative appeals, which are heard in the first instance in the Superior Court, are deemed to be civil actions only under some circumstances ․ Certainly, then, the underlying proceeding before an administrative agency-rather than a court-may be deemed a civil action only if the evidence of such legislative intent is strong.”  (Citations omitted;  emphasis in original.)  Id., 175-76.   Once again, the defendant in the present matter concedes that actions before the claims commission are not civil actions.   Moreover, there is nothing in the legislative history of the claims act to suggest that the legislature intended claims commission proceedings to be civil actions.   As a result, the court concludes that the requested documents are not privileged in the underlying action.

For all of these reasons, the court concludes that the claims commissioner has the authority to order production of the requested documents.   The question remains, however, whether the claims act is an unconstitutional delegation of authority, as the defendant suggests.

II

THE CONSTITUTIONALITY OF THE CLAIMS ACT

The legislative history behind the claims act reveals that the legislature considered and resolved the constitutional problems with delegation before enacting the claims act in 1959.   In a May 20, 1959 hearing before the appropriations committee, George Oberst, the director of the legislative council studying the creation of the claims commission, noted:  “In order to find a solution to the problem [of growing claims against the state before the legislature] both feasible and economical, the General Assembly at its 1953 session directed the Legislative Council to study the matter of adjudicating claims against the State.   In its report to the 1955 session, the Council recommended the creation of an administrative-type Claims Commission to hear and dispose of certain classes of claims.   Action was deferred, however, at the suggestion of the Attorney General that the General Assembly lacked constitutional authorization to delegate to another agency the function of deciding claims.   A constitutional amendment was prepared at the 1955 session which was submitted to and approved by the electorate on November 4, 1958.”   Conn. Joint Standing Committee Hearings, Appropriations, Pt. 3, 1959 Sess., p. 920.   The 1955 amendment to which Oberst refers provides:  “Article tenth of the constitution is amended by adding section 7 as follows:  Claims against the state shall be resolved in such manner as may be provided by law.” ¹⁰

Even if the constitution of Connecticut had not been amended to authorize the claims act, thereby resolving the delegation issues, the court notes that a “party challenging a statute's constitutionality has a heavy burden of proof;  the unconstitutionality must be proven beyond all reasonable doubt.”   Bottone v. Westport, 209 Conn. 652, 657, 553 A.2d 576 (1989);  Rudy's Limousine Service, Inc. v. Dept. of Transportation, 78 Conn.App. 80, 89, 826 A.2d 1161 (2003).   Since the constitution of the Connecticut provides that claims against the state shall be resolved in such a manner provided by law and a party challenging a statute's constitutionality has a heavy burden of proof, the court concludes that the defendant's nondelegation arguments are without merit.

CONCLUSION

Given that the claims commissioner has the statutory authority to order the discovery of the materials requested in his subpoena duces tecum, and the court has not found the claims act unconstitutional, the court grants the plaintiff's application and orders that the defendant comply with the claims commissioner's subpoena duces tecum.

So ordered.

BY THE COURT,

Pickard, J.

FOOTNOTES

FN1. The plaintiff re-filed the complaint on June 1, 2010, because the exhibits referred to in the complaint were not attached to the original filing..  FN1. The plaintiff re-filed the complaint on June 1, 2010, because the exhibits referred to in the complaint were not attached to the original filing.

FN2. A civil suit against the treating doctor, Charette v. Malone, Docket No. CV 09 5014422, was filed in New Britain Superior Court on October 13, 2009..  FN2. A civil suit against the treating doctor, Charette v. Malone, Docket No. CV 09 5014422, was filed in New Britain Superior Court on October 13, 2009.

FN3. As noted below, the defendant ultimately complied with part three of the request regarding the decedent's medical records..  FN3. As noted below, the defendant ultimately complied with part three of the request regarding the decedent's medical records.

FN4. Schedule A reiterates the plaintiff's requests..  FN4. Schedule A reiterates the plaintiff's requests.

FN5. Specifically, the defendant stated:  “We received an authorization for release of the decedent's patient's records from the authorized representatives of the estate.   Thus, pursuant to that authorization, we shall produce copies of the decedent's patient care records to the State.“We shall not, however, be producing copies of the other documents encompassed by the subpoena.   As indicated in the motion to quash that we filed on August 24, 2009, we respectfully maintain that such documents are privileged and/or not relevant to the pending claim before the State.   We also respectfully maintain that the Office of the Claims Commissioner has no jurisdiction to order Charlotte Hungerford Hospital to provide such documents, since the hospital is not a party to the claims matter now pending before the Office of the Claims Commissioner and since the documents in question do not relate in any way to the claims made against the State.“If the Office chooses not to accept our position and proceed according to the procedures set forth in General Statutes § 4-151(e), then we shall present our position in more detail to the Superior Court.”.  FN5. Specifically, the defendant stated:  “We received an authorization for release of the decedent's patient's records from the authorized representatives of the estate.   Thus, pursuant to that authorization, we shall produce copies of the decedent's patient care records to the State.“We shall not, however, be producing copies of the other documents encompassed by the subpoena.   As indicated in the motion to quash that we filed on August 24, 2009, we respectfully maintain that such documents are privileged and/or not relevant to the pending claim before the State.   We also respectfully maintain that the Office of the Claims Commissioner has no jurisdiction to order Charlotte Hungerford Hospital to provide such documents, since the hospital is not a party to the claims matter now pending before the Office of the Claims Commissioner and since the documents in question do not relate in any way to the claims made against the State.“If the Office chooses not to accept our position and proceed according to the procedures set forth in General Statutes § 4-151(e), then we shall present our position in more detail to the Superior Court.”

FN6. In its objection, the defendant states a more lengthy version of the facts, The defendant asserts that the marshals transported the decedent to the hospital after she complained of illness during a court appearance.   The defendant asserts that there is no indication that the marshals ever advised the health care providers at the hospital that the decedent was incarcerated at a correctional facility.   Moreover, the defendant argues that there is no indication that the marshals ever informed the health care providers at the correctional institution that the decedent had been treated at the hospital.   Finally, the defendant asserts that a police investigation after the decedent's death indicated that the decedent misrepresented her medical history in order to receive methadone.   The defendant attaches several exhibits to its objection, one of which is a June 1, 2009 letter from the state to the claims commissioner.   In that letter, the state asserts that the claimant's position is that the state was negligent in failing to notify the hospital personnel of the decedent's medical history, while the state's position is that liability rests with both the decedent and the hospital..  FN6. In its objection, the defendant states a more lengthy version of the facts, The defendant asserts that the marshals transported the decedent to the hospital after she complained of illness during a court appearance.   The defendant asserts that there is no indication that the marshals ever advised the health care providers at the hospital that the decedent was incarcerated at a correctional facility.   Moreover, the defendant argues that there is no indication that the marshals ever informed the health care providers at the correctional institution that the decedent had been treated at the hospital.   Finally, the defendant asserts that a police investigation after the decedent's death indicated that the decedent misrepresented her medical history in order to receive methadone.   The defendant attaches several exhibits to its objection, one of which is a June 1, 2009 letter from the state to the claims commissioner.   In that letter, the state asserts that the claimant's position is that the state was negligent in failing to notify the hospital personnel of the decedent's medical history, while the state's position is that liability rests with both the decedent and the hospital.

FN7. In its motions to quash before the claims commission, the defendant argued that the documents in question are subject to the peer review privilege in § 19a-17b.   It is unclear whether the defendant raises the same argument in its objection to the present application since the defendant focuses almost solely on whether these documents “relate” to the claims proceeding under § 4-160.   As discussed later, however, the court concludes that even if the defendant were to raise this argument, these documents are not subject to the peer review privilege because an action before the claims commission is not a civil action, which the defendant concedes..  FN7. In its motions to quash before the claims commission, the defendant argued that the documents in question are subject to the peer review privilege in § 19a-17b.   It is unclear whether the defendant raises the same argument in its objection to the present application since the defendant focuses almost solely on whether these documents “relate” to the claims proceeding under § 4-160.   As discussed later, however, the court concludes that even if the defendant were to raise this argument, these documents are not subject to the peer review privilege because an action before the claims commission is not a civil action, which the defendant concedes.

FN8. At the outset of its constitutional arguments, the defendant asserts that it has standing to challenge the constitutionality of the claims act.   The plaintiff fails to challenge the defendant's standing, and only argues that the relevant provisions of the claims act are constitutional.   Despite this, the court concludes that the defendant has standing to challenge the constitutionality of the act given its colorable claim of injury based on the commissioner's underlying discovery order, which would require the defendant to turn over documents that would be privileged in a civil action..  FN8. At the outset of its constitutional arguments, the defendant asserts that it has standing to challenge the constitutionality of the claims act.   The plaintiff fails to challenge the defendant's standing, and only argues that the relevant provisions of the claims act are constitutional.   Despite this, the court concludes that the defendant has standing to challenge the constitutionality of the act given its colorable claim of injury based on the commissioner's underlying discovery order, which would require the defendant to turn over documents that would be privileged in a civil action.

FN9. Although the court recognizes that the rules of evidence do not apply to claims commission proceedings under § 4-151(b), the court notes that even “[w]ithin the law of evidence, relevance is a very broad concept.   Evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would without the evidence.”  (Internal quotation marks omitted.)  State v. Erickson, 297 Conn. 164, 178 (2010)..  FN9. Although the court recognizes that the rules of evidence do not apply to claims commission proceedings under § 4-151(b), the court notes that even “[w]ithin the law of evidence, relevance is a very broad concept.   Evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would without the evidence.”  (Internal quotation marks omitted.)  State v. Erickson, 297 Conn. 164, 178 (2010).

FN10. This provision is now codified in article eleven of the constitution of Connecticut..  FN10. This provision is now codified in article eleven of the constitution of Connecticut.

Pickard, John W., J.