Amelia Sermanowicz v. IV (2010)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR ADVICE

In this action for personal injuries sustained in a motor vehicle accident on January 24, 2007, defendant made an amended motion for advice dated April 8, 2010 to plaintiff's objection to have defendant review her medical records obtained by a physician objected to by her.   Defendant concedes that Practice Book Section 13-11(b) allows plaintiff to object to a physical or mental examination, but argues that plaintiff has no right to object to a medical records review by a physician selected by defendants for to purpose of court trial now scheduled for October 22, 2010.   It is further claimed that plaintiff's privacy rights do not extend to a right for the plaintiff to know the identity of any and all medical professionals retained by the defendants to review medical records in order to prepare for litigation.

In Malanson v. Bridgeport Restoration Co., Superior Court, judicial district of New Haven, Docket No. CV 03-0482387 (February 7, 2004, Corradino, J.) (36 Conn. L. Rptr. 525), which was also a personal injury action, the defendant asked the plaintiff for copies of his diagnostic films in order to have them reviewed by a radiologist.   In response, the plaintiff gave the defendant authorization in which he agreed that the films could be released to the defendant, but he sought to condition the defendant's use of the authorization on the defendant's counsel agreeing to give the plaintiff a copy of the radiologist's report or information thereon to the plaintiff.   The court determined that diagnostic films were within the scope of discovery and held that the defendant did not need to disclose the opinions or identities of any non-testifying experts that it had retained exclusively for the purpose of analyzing those films.   The opinion relied on our Practice Book § 13-4(f) being modeled on the Federal Rule of Civil Procedure.   Rule 26(b)(4)(B) and the discussion at § 2032 of vol. 8 of [C. Wright, A. Miller & R. Marcus] Federal Practice & Procedure (2d ed. [1994] ).  The court noted that:

Some of the reasons advanced by Wright for the federal rule can be summarized as follows.  (1) Discovery is allowed as to experts expected to testify so that counsel may prepare for cross-examination and rebuttal ․ This consideration does not apply to a non-testifying expert and as noted, it would especially not apply as here to an expert retained to review a plaintiff's medical records before defense counsel can rationally decide whether he/she wants the expert to testify.”  Id., 526.

The Malanson court further noted the chilling effect that would likely exist should the defendant be required to make such a disclosure.  “A plaintiff while preparing his or her case could merely contact and consult with any number of experts before selecting one favorable to his or her cause without having to reveal the names or opinions of any others that first consulted but not contemplated for use at trial ․ But once the defendant exercises his/her right to prepare a defense by consulting even one expert that expert's opinion would have to be revealed.  Id. p. 527.

The issue in this case is not analogous to a plaintiff's right to object to being examined by a particular doctor pursuant to § 13-11(b) or § 52-178a because medical records review is of a different order than a complete physical examination.

It is concluded that the plaintiff has no right either under General Statutes § 52-178a or under Practice Book § 13-11(b) to know the identity of any medical professional retained by the defendants solely to review the plaintiff's diagnostic films in preparation for trial.

Wagner, J., JTR

Wagner, Jerry, J.T.R.