John Doe v. Southwest Community Health Center, Inc. et al. (2010)

MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT # 160

FACTS

The plaintiff in this matter, John Doe,¹ has brought suit against the defendants Southwest Community Health Center, Inc. (Southwest), Raymond Raw, Bruce Cafora, Brian Becker, Deborah Alter (collectively the Southwest defendants),² Arthur Africano, M.D.³ and Robert M. Skane.⁴  In the operating pleading, which is the corrected third amended complaint dated December 12, 2009, the plaintiff alleges the following facts.   At some time prior to 2007, the plaintiff, who was a parolee, completed an “intensive outpatient program” for substance abuse that was recommended by the plaintiff's parole officer, Robert Johnson.   Following a conviction in traffic court, the plaintiff decided to participate in another substance abuse program in order to regain his driver's license.   The plaintiff subsequently negotiated with Southwest, which is a health care center located in Bridgeport, for another mental health and substance abuse counseling program known as treatment plan number one.   In the operative complaint, the plaintiff alleges that “[p]articipation in the Program was unrelated to [the] requirements of Plaintiff's parole” and the “Plaintiff was not required to disclose participation in the Program in advance to anyone, nor was he required to disclose where the course was to be taken.”   Nevertheless, the original draft agreement prepared by Southwest provided for the release of the plaintiff's participation and confidential information to third parties, including Johnson.   After reading this provision, the plaintiff, who did not wish to waive his right to the confidentiality of his health information, demanded that this language be removed from the parties' agreement.   Southwest agreed to delete this provision.   On June 20, 2007, the parties signed the final version of the agreement for the plaintiff's health care and the plaintiff commenced participation in a program at Southwest.

On July 5, 2007, Raw called the plaintiff into his office where he was arrested by Johnson because of a misdemeanor summons.   The plaintiff alleges that because “Southwest does a significant amount of parole required course business,” employees of Southwest “disclosed information about Plaintiff to a parole officer without Plaintiff's permission in order to continue to cultivate that revenue stream.”   As a result of his arrest, the plaintiff alleges that he has suffered mental anguish and that his recovery from substance abuse has been “impeded by his general lack of trust of health care providers ․” Accordingly, in count one, the plaintiff alleges claims against the defendants for violations of General Statutes §§ 52-146d-j inclusive, and § 52-146o, which are the statutes governing privileged communications between a patient and his psychiatrist and disclosure of patient communication by a physician, surgeon or health care provider.⁵

In counts two through four, the plaintiff alleges that during the negotiation of their contract, Southwest and the other defendant employees failed to disclose to the plaintiff that they believed themselves “to be a Federal entity governed by the provisions of the Federally Supported Health Centers Assistance Act (“FSHCAA”) or the Federal Tort Claims Act (“FTCA”), which if true, might limit Plaintiff's right to redress for Southwest's misconduct and which Southwest had a duty to disclose.”   The plaintiff further alleges that the disclosure of the plaintiff's medical information by the defendant employees was outside the scope of their employment.   Furthermore, the plaintiff alleges that the employees of Southwest had a duty to maintain and safeguard the confidentiality of the plaintiff's health care information under state and federal law;  specifically, 45 C.F.R. § 164.502 (HIPPA) and General Statutes §§ 17a-688(c) and 52-146o.   As such, counts two through four alleges claims for breach of contract, negligence and wanton or willful misconduct.⁶

On March 17, 2010, Skane filed a motion for summary judgment, as well as a memorandum of law in support of his motion.   Skane subsequently filed an amended memorandum of law on March 25, 2010.⁷  Attached to Skane's motion are his notarized affidavit and uncertified excerpts from the transcripts of the depositions of Raw and Carfora.⁸  Skane's memorandum of law also references various attachments to the motion for summary judgment brought by the Southwest defendants.   On April 26, 2010, the plaintiff filed a memorandum of law in opposition.⁹  The plaintiff's memorandum of law in opposition incorporates all of the affidavits and exhibits from his memorandum of law in opposition to the Southwest defendants' motion, as well as attaches the sworn affidavit of Roger Lee Crossland, the plaintiff's counsel, and certified excerpts from the transcript of the deposition of Carfora.   The court heard oral argument in this matter at short calendar on June 22, 2010.

DISCUSSION

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and 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.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Citations omitted;  internal quotation marks omitted.)   Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   The burden is on the moving party to demonstrate an absence of any triable issue of material fact and “[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).

The defendant, Skane, first argues that he is entitled to judgment as a matter of law for all of the reasons articulated by the Southwest defendants in their motion for summary judgment.   In doing so, his memorandum of law incorporates the arguments raised by the Southwest defendants.   The court will follow the decision entered in favor of the Southwest defendants as to count one and deny as to counts two, three and four for the same reasons enunciated in that memorandum of decision.

Additionally, Skane raises two more arguments as to why summary judgment should be granted in his favor.   First, Skane argues that there is no genuine issue of material fact the he only served as an independent consultant to Southwest and that he had no control over the maintenance of the plaintiff's medical records or information.   Skane contends that he had nothing to do with the dissemination of the medical information of any client, and that he had no direct dealings or contact with the plaintiff.   Second, Skane states there is no genuine issue of material fact that he was not present at Southwest on the date of the subject incident.   Therefore, Skane contends that he has no personal knowledge of the events that transpired and that he did not disclose the plaintiff's presence to Johnson or speak to any of the individuals who did.   Skane's memorandum of law cites no case law in support of these positions.

In response, the plaintiff argues that Skane can be held liable for breach of contract because he was a signatory on the document describing the plaintiff's treatment plan to regain his driver's license from the department of motor vehicles.   As this document forms the basis of the plaintiff's breach of contract claim, and Skane signed the document in his individual capacity, the plaintiff contends that Skane is liable for his breach of this contract even if he was an independent consultant.   The plaintiff further notes that Skane also signed the “relapse prevention treatment plan” and “IOP treatment plan” in his individual capacity.   Moreover, the plaintiff argues that Skane signed these documents “with the trappings of authority provided him by Southwest Community.”   Regarding the tort counts, the plaintiff argues that as the supervisor of Raw and Carfora, Skane can be held legally responsible for the conduct of his subordinates.   The plaintiff contends that “Skane failed by omission or reckless indifference to train and supervise his subordinates with respect to the Patient Rights Representations and this failure resulted in injury to Plaintiff John Doe.” Consequently, the plaintiff argues that Skane's summary judgment motion should also be denied as to the negligence and willful or wanton misconduct counts.¹⁰

The court will first address these arguments as they relate to count two alleging breach of contract.   An examination of the June 20, 2007 treatment plan document that the plaintiff contends forms the basis of his contract with the parties reveals that this document was either signed or stamped by Skane.¹¹  In count two of the operative complaint, the plaintiff alleges that the disclosure of the plaintiff's presence at Southwest by the defendants, including Skane, “was conduct outside the scope of their employment.”   This allegation suggests that the plaintiff is seeking to hold the various defendants liable for their actions in an individual capacity.   The plaintiff further argues in his memorandum of law that he is attempting to prove that Skane signed the treatment plan “using the format normally employed by signatories signing in their individual capacity.”   Skane has offered no evidence to demonstrate that he did not sign the treatment plan in his individual capacity and there is nothing in the document that clearly abrogates his personal liability.   Consequently, a trier of fact could potentially find Skane liable for the breach of a contract that he signed, which makes Skane's status as an independent consultant or his whereabouts on July 5, 2007 immaterial.   Therefore, there are outstanding issues of material fact regarding Skane's liability on count two, breach of contract.

Regarding the tort counts, it is true that both Raw and Carfora testified in their respective depositions that Skane was not at Southwest on the day that the plaintiff's presence was released to Johnson and that Skane worked as an independent consultant for Southwest.   Skane also attests to these facts in his affidavit.   Nevertheless, both Raw and Carfora indicated that Skane was their supervisor.   Specifically, Carfora testified that Skane was “responsible for all things clinical.   He's responsible for the clinicians ․ he is responsible for the clients, and he also meets with us on a regular-usually a weekly basis.   I meet with Mr. Skane once a week or as needed ․ [T]here's one time a week I definitely meet with him.”   As Raw and Cafora both admit that Skane was their supervisor, he can be held legally responsible for their actions.   See, e.g. Seguro v. Cummiskey, 82 Conn.App. 186, 191, 844 A.2d 224 (2004) ( “[u]nder Connecticut law, an employer may be held liable for the negligent supervision of employees”).   Therefore, it is not enough for Skane simply to argue that he was present at Southwest when the other defendants told Johnson that the plaintiff was a patient.   Although Skane will presumably argue that he cannot be held liable for Raw and Carfora's acts because he was an independent contractor as opposed to their actual supervisor, “[t]he determination of the status of an individual as an independent contractor or employee is often difficult ․ and, in the absence of controlling considerations is a question of fact.”  (Internal quotation marks omitted.)  Maloney v. PCRE, LLC, 68 Conn.App. 727, 754, 793 A.2d 1118 (2002).   Given Raw and Carfora's deposition testimony that Skane was their supervisor, there is enough uncertainty about his role at Southwest that it should be left to the jury to decide whether he can be held liable for the actions of his subordinates.

Although it is readily apparent that the plaintiff is still searching for a precise theory of liability against Skane, in that the operative complaint is unclear as to whether Skane was acting as an independent contractor, agent or employee of Southwest, it is of significance that this is Skane's motion for summary judgment.  “On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met § that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.”  (Internal quotation marks omitted.)  Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).   As the moving party, it is Skane's burden to demonstrate the absence of all genuine issues of material fact regarding the plaintiff's claims.   Skane has only submitted a citation free memorandum of law, supported by his own affidavit and two uncertified deposition transcripts, that make the blanket statements that he cannot be held liable because he was an independent consultant and was not at Southwest on the date of the subject incident.   As Skane has not demonstrated that it would be completely impossible for him to be held liable under the facts as alleged by the plaintiff, there are issues of fact as to Skane's liability in the present case.   Therefore, the motion for summary judgment as to counts two, three and four are denied.

THE COURT

Brazzel-Massaro, J.

FOOTNOTES

FN1. The plaintiff in this action is using a pseudonym as authorized by Practice Book § 11-20A(h)(1)..  FN1. The plaintiff in this action is using a pseudonym as authorized by Practice Book § 11-20A(h)(1).

FN2. The Southwest defendants have filed a separate motion for summary judgment that is pending before this court.   As Skane's memorandum of law in support of his motion incorporates many of the arguments utilized by the Southwest defendants, that motion will be referred to when appropriate..  FN2. The Southwest defendants have filed a separate motion for summary judgment that is pending before this court.   As Skane's memorandum of law in support of his motion incorporates many of the arguments utilized by the Southwest defendants, that motion will be referred to when appropriate.

FN3. Africano is only a defendant as to count two, breach of contract.   Although Africano has filed a motion for summary judgment dated May 7, 2010 that is pending before this court, Africano's counsel filed a suggestion of death on June 17, 2010 indicating that Africano died during the week of June 7, 2010.   As a result of Africano's death, the court no longer has jurisdiction to entertain his motion for summary judgment until the plaintiff has substituted the executor or administrator of his estate pursuant to General Statutes § 52-599.   Accordingly, Africano's summary judgment motion is denied without prejudice to renew..  FN3. Africano is only a defendant as to count two, breach of contract.   Although Africano has filed a motion for summary judgment dated May 7, 2010 that is pending before this court, Africano's counsel filed a suggestion of death on June 17, 2010 indicating that Africano died during the week of June 7, 2010.   As a result of Africano's death, the court no longer has jurisdiction to entertain his motion for summary judgment until the plaintiff has substituted the executor or administrator of his estate pursuant to General Statutes § 52-599.   Accordingly, Africano's summary judgment motion is denied without prejudice to renew.

FN4. The operative complaint alleges that each of the individual defendants were either employees or agents of Southwest.   Specifically, the complaint alleges that Raw was employed as the evening treatment coordinator, Carfora as a clinician, Becker as a clinical supervisor, Alter as a clinical supervisor, Africano as a “physician affiliated with Southwest who was a signatory in his individual capacity to an agreement with respect to the Program” and Skane as a state licensed clinical social worker, respectively..  FN4. The operative complaint alleges that each of the individual defendants were either employees or agents of Southwest.   Specifically, the complaint alleges that Raw was employed as the evening treatment coordinator, Carfora as a clinician, Becker as a clinical supervisor, Alter as a clinical supervisor, Africano as a “physician affiliated with Southwest who was a signatory in his individual capacity to an agreement with respect to the Program” and Skane as a state licensed clinical social worker, respectively.

FN5. Count one alleges that the defendants violated various federal privacy law, including 45 C.F.R. 164.502, 42 U.S.C. §§ 1320d-5, 1320-6 (HIPPA) and 42 U.S.C. §§ 290dd-2, 290aa-290ff and 290dd-2(a)..  FN5. Count one alleges that the defendants violated various federal privacy law, including 45 C.F.R. 164.502, 42 U.S.C. §§ 1320d-5, 1320-6 (HIPPA) and 42 U.S.C. §§ 290dd-2, 290aa-290ff and 290dd-2(a).

FN6. Count five alleges a claim for intentional infliction of emotional distress against Raw. Skane is not a party to this count..  FN6. Count five alleges a claim for intentional infliction of emotional distress against Raw. Skane is not a party to this count.

FN7. It appears that the purpose of Skane's amended memorandum of law was to correct a typographical error.   The two documents are virtually the same..  FN7. It appears that the purpose of Skane's amended memorandum of law was to correct a typographical error.   The two documents are virtually the same.

FN8. The excerpts from the Raw and Carfora deposition transcripts do not have a certification page nor are they authenticated by affidavit.   Under Connecticut law, “before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.”  (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Despite this rule, a court has discretion to consider uncertified deposition transcript when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   As the plaintiff has not objected to Skane's use of uncertified evidence, the court can consider the transcripts when ruling on this motion for summary judgment..  FN8. The excerpts from the Raw and Carfora deposition transcripts do not have a certification page nor are they authenticated by affidavit.   Under Connecticut law, “before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be.”  (Internal quotation marks omitted.)  New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).   Despite this rule, a court has discretion to consider uncertified deposition transcript when no objection has been raised by the opposing party.  Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).   As the plaintiff has not objected to Skane's use of uncertified evidence, the court can consider the transcripts when ruling on this motion for summary judgment.

FN9. The plaintiff also redocketed his opposition on June 17, 2010.   This is the same document that was filed with the court on April 26, 2010..  FN9. The plaintiff also redocketed his opposition on June 17, 2010.   This is the same document that was filed with the court on April 26, 2010.

FN10. The plaintiff also briefly argues that Skane's motion should be denied because this is the second motion for summary judgment filed by Skane.   Specifically, the plaintiff states that Skane already filed a motion for summary judgment and supporting memorandum of the Southwest defendants.   Although counsel for the Southwest defendants, Attorney Michael Lavelle, originally filed an appearance to represent Skane, Attorney Mony B.P. Yin subsequently filed an appearance to act as Skane's counsel on February 19, 2010.   Attorney Yin also filed an additional “in lieu of” appearance on February 24, 2010.   Therefore, Skane was not a party to the January 26, 2010 motion for summary judgment filed by the Southwest defendants.   Consequently, this is Skane's first motion for summary judgment..  FN10. The plaintiff also briefly argues that Skane's motion should be denied because this is the second motion for summary judgment filed by Skane.   Specifically, the plaintiff states that Skane already filed a motion for summary judgment and supporting memorandum of the Southwest defendants.   Although counsel for the Southwest defendants, Attorney Michael Lavelle, originally filed an appearance to represent Skane, Attorney Mony B.P. Yin subsequently filed an appearance to act as Skane's counsel on February 19, 2010.   Attorney Yin also filed an additional “in lieu of” appearance on February 24, 2010.   Therefore, Skane was not a party to the January 26, 2010 motion for summary judgment filed by the Southwest defendants.   Consequently, this is Skane's first motion for summary judgment.

FN11. Two of the signatures on this document are illegible.   Nevertheless, the third signature line indicates that the position of the signer was “Clinical Supervisor.”   In his deposition, Carfora testified that Skane was the supervisor “responsible for all things clinical.”   This statement suggests that Skance signed on this line.   In any event, there is also a stamp on the document indicating that it is endorsed by “Robert M. Skane, LCSW, LADC, CCS.”.  FN11. Two of the signatures on this document are illegible.   Nevertheless, the third signature line indicates that the position of the signer was “Clinical Supervisor.”   In his deposition, Carfora testified that Skane was the supervisor “responsible for all things clinical.”   This statement suggests that Skance signed on this line.   In any event, there is also a stamp on the document indicating that it is endorsed by “Robert M. Skane, LCSW, LADC, CCS.”

Brazzel-Massaro, Barbara, J.