Robert Salatto v. Hospital of St. Raphael (2010)

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT, # s 114, 119

The plaintiff, Robert Salatto, who represents himself, commenced this action against the defendant, the Hospital of Saint Raphael, on October 7, 2009.   On November 25, 2009, the plaintiff filed the operative complaint in which he alleges that he is entitled to damages because the defendant breached various confidentiality rules.   The defendant filed a motion for summary judgment, accompanied by a memorandum of law on May 14, 2010.   The plaintiff filed an Objection on June 14, 2010 and thereafter filed a motion for partial summary judgment on June 30, 2010.   The court heard argument on July 12, 2010.   For reasons more fully set forth herein, this court grants the defendant's motion in part and denies the plaintiff's motion.

In his two-count complaint, the plaintiff alleges that in 2009 he was hospitalized at the defendant hospital.   During his hospitalization, the plaintiff's stepfather, Lawrence Acquarulo, telephoned the defendant and allegedly asked agents of the defendant whether the plaintiff was being treated within a certain unit at the hospital and the exact nature and basis of his treatment within that unit.   The plaintiff claims that agents of the defendant then handed the plaintiff a portable telephone handset and indicated that the phone call was for him.   When the plaintiff took the call, he claims to have discovered Acquarulo on the other line.   The plaintiff claims that he did not give consent to the disclosure of any information to Acquarulo.   Additionally, in his complaint, the plaintiff contends that agents of the defendant sent a facsimile to Attorney Richard Silverstein, which disclosed (1) the plaintiff's presence within a certain unit at the defendant hospital;  (2) the nature and basis of the plaintiff's treatment within that unit and (3) other specific facts regarding the plaintiff's medical and/or psychological information.   The plaintiff claims that he did not give consent for such facsimile.

In his First Count, the plaintiff alleges that the acts and omissions of the defendant were negligent per se because they violated his right to confidentiality, pursuant to “General Statutes § 52-146 et seq.” and Title 42 of the Code of Federal Regulations.   In the Second Count, the plaintiff makes a conmon-law negligence claim and alleges that the defendant breached an express duty owed to the plaintiff to maintain the confidentiality of his medical information.   The plaintiff claims that he has suffered damages as a result of both the per se and common-law negligence of the defendant.

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any 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.)  Durrant v. Board of Education, 284 Conn. 91, 99-100 n.7, 931 A.2d 859 (2007).  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).  “[T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ To 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 issue of material fact.”  Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).   Once the movant has met his burden, the burden shifts to the opposing party to “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 a disputed issue.”  Id., 319.

In support of its motion for summary judgment, the defendant makes two central arguments.   First, it argues that it is entitled to summary judgment on Count One of the plaintiff's complaint because neither Title 42 of the Code of Federal Regulations, Health Insurance Portability and Accountability Act of 1996 (HIPAA), nor General Statutes § 52-146o create a private right of action.   In the alternative, the defendants argues that even if such disclosures occurred, they do not violate HIPAA because the plaintiff gave oral consent for the facsimile sent to Silverstein.   Second, regarding the plaintiff's common-law negligence claim, the defendant argues that Connecticut does not recognize an action for breach of confidentiality in either the patient-physician or patient-hospital contexts.   In support of its arguments the defendant submitted:  (1) a copy of the facsimile sent to Silverstein;  (2) an affidavit of Tricia Bellucci, an employee of the defendant hospital;  (3) an affidavit of Silverstein;  (4) a “Notice of Privacy Practices”;  and (5) a “Notice of Patients' Rights.”

The plaintiff argues that he does have viable causes of action under HIPAA and the General Statutes.   And, he contends that there are issues of material fact which preclude summary judgment with respect to the information disclosed to Acquarulo.   In his motion for partial summary judgment, the plaintiff also claims he is entitled to judgment on the claim related to the facsimile sent to Silverstein because there is no dispute that he did not provide written consent for the disclosure, as required by the statute.

“[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).  “[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading.”   Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).

I.

Although not raised by either party, the court must first address its authority to enter partial summary judgment.  “[T]here is a division of authority in the trial courts as to whether, under Practice Book §§ 10-26 and 17-51, and Telesco v. Telesco, 187 Conn. 715, 718-19, 447 A.2d 752 (1982), a court is limited to rendering summary judgment on an entire count in a complaint, rather than having the flexibility to render summary judgment on one or some of the multiple causes of action contained in a single count in that complaint.”  Liberty Mutual Ins. v. Lone Star Industries, Inc., 290 Conn. 767, 809 n.41, 967 A.2d 1 (2009).   The appellate courts have not yet resolved this issue.   The division results from two different interpretations of § 17-51, which provides:  “If it appears that the defense applies to only part of the claim, or that any part is admitted, the moving party may have final judgment forthwith for so much of the claim as the defense does not apply to, or as is admitted, on such terms as may be just;  and the action may be severed and proceeded with as respects the remainder of the claim.”   The majority of the trial court judges have construed § 17-51 to bar the “entry of summary judgment on one part or allegation of a cause of action when the ruling will not dispose of an entire claim․  “ (Internal quotation marks omitted.)   Pfizer, Inc. v. Mine Safety Appliances Co., Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 04 4034705 (May 19, 2008, Shapiro, J.) (45 Conn. L. Rptr. 577, 578-79).   The minority view, however, is that § 17-51 authorizes the severance of claims within a single count and partial summary judgment.   See Pelletier v. Sordoni/Skanska Construction Co., Superior Court, judicial district of Waterbury, complex litigation docket, Docket No. X06 CV 95 0155184-S (May 5, 2005, Alander, J.) [39 Conn. L. Rptr. 302] (Practice Book § 17-51 “authorizes the entry of summary judgment on part of a claim within a single count provided final judgment can be entered with respect to that part of the claim and it can be severed from the remainder of the claim”), rev'd on other grounds, 286 Conn. 563, 945 A.2d 388 (2008).

In the present case, the court is mindful of its obligation to be solicitous of self-represented parties, and chooses to follow the minority view.   In fact, Count One of the plaintiff's complaint is ripe for severance because the allegations contained therein can logically be broken down into four distinct claims.   The first claim is that the defendant violated HIPAA when its agents made certain disclosures during a telephone conversation with Acquarulo.   Second, is the claim that the defendant violated the plaintiff's right to confidentiality, pursuant to § 52-146 et seq., with such telephone conversation.   The third claim contained is that the defendant violated HIPAA when its agents sent the facsimile to Silverstein.   The fourth and final claim is that the defendant violated the plaintiff's right to confidentiality, pursuant to § 52-146 et seq., with such facsimile.   Thus, for the purposes of the defendant's motion for summary judgment and the plaintiff's motion for partial summary judgment, the court considers the statutory claims contained in Count One as asserting four different causes of action.   The claims in Count Two, on the other hand, allege common-law negligence.

II.

The plaintiff's first and third claim in the First Count, his negligence per se claims, assert that the defendant violated his right to confidentiality, pursuant to HIPAA.   It is well settled that HIPAA does not create a private right of action.   Mascetti v. Zozulin, United States District Court, Docket No. 3:09 CV 963(PCD) (D.Conn April 20, 2010) (“Enforcement of the statute and its regulations is limited to the Secretary of Health and Human Services;  thus, there is no private right of action”);  see Rzaveya v. United States, 492 F.Sup.2d 60, 83 (D.Conn.2007) (“HIPAA, which regulates the privacy of medical records, provides no private right of action, and enforcement of HIPAA is reserved exclusively to the Secretary of Health and Human Services”).   Therefore, the proper procedure is for the plaintiff to file his complaint with the Department of Health and Human Services pursuant to 45 C.F.R. § 160.306(a).   That provision provides that “[a] person who believes a covered entity is not complying with [HIPAA] provisions may file a complaint with the Secretary [of Health and Human Services].”   Because the court finds that the plaintiff cannot maintain a cause of action under HIPAA, it need not reach the issue of whether the defendant, through the acts of its agents, failed to comport with HIPAA requirements when it disclosed information regarding the plaintiff's treatment to Acquarulo or Silverstein.   Thus, the defendant is entitled to summary judgment as a matter of law on the plaintiff's first and third claims in the First Count.

III.

The court next addresses the plaintiff's claims that the defendant violated his right to confidentiality, pursuant to General Statutes § 52-146e.   The court notes that in his amended complaint, the plaintiff sought relief under “Section 52-146 et seq.”   In its motion for summary judgment, the defendant argued that General Statutes 52-146o is the only possible applicable subsection because it “addresses the actions of a health care provider.”   Therefore, the defendant based the entirety of its legal arguments in support of its motion for summary judgment on the assumption that the plaintiff intended to state a claim for a violation of § 52-146o.   Thereafter, in his own motion for summary judgment, the plaintiff specified that he is seeking relief under General Statutes § 52-146e.

Section 52-146e(a) provides in relevant part:  “All communications and records as defined in Section 52-146d shall be confidential ․ no person may disclose or transmit any communication and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.”  “Communications and records” is defined by § 52-146d(2), which provides “ ‘[c]ommunications and records' means all oral and written communications thereof relating to diagnosis or treatment of a patient's mental condition between a patient and a psychiatrist, or between a member of the patient's family and a 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 ․” “ ‘Consent’ means consent given in writing by the patient or his authorized representative ․” Section 52-146d(3).  General Statutes § 52-146j provides a private right of action for persons aggrieved by a violation of § 52-146e.¹  Thus, under certain circumstances the plaintiff would have a statutory right to seek damages for the alleged violations of § 52-146e.

A.

Regarding the plaintiff's fourth claim in the First Count, the plaintiff has failed to provide sufficient proof to persuade the court that § 52-146e applies to the facsimile sent to Silverstein.   The facsimile, which was sent on June 5, 2009, is entitled “court notification form” and lists the plaintiff's name and the defendant's contact information and states:  “Please let this fax sheet serve to confirm that the above-referenced individual is currently in our hospital, and therefore is unable to attend his/her court hearing.”   Tricia Bellucci, who was employed by the defendant, wrote on the form:  “Mr. Salatto arrived in ER 6-4-09, 12:00 p.m.” These statements do not constitute a disclosure or transmittance of confidential communications and records relating to a diagnosis or treatment of the patient's mental condition as defined by § 52-146d(2), supra.   In fact, there is no indication on the facsimile that the plaintiff arrived at the defendant hospital's emergency room for the purpose of seeking mental health treatment or that he was under the care of any mental health professional.   As a result, the defendant is entitled to summary judgment on the plaintiff's claim that it violated § 52-146e when its agent sent the facsimile to Silverstein.   In addition, the plaintiff's motion for summary judgment is denied because, notwithstanding his assertion that he did not provide written consent, the plaintiff did not meet his burden of proving that the defendant disclosed statutorily protected information regarding his status as a psychiatric patient or his psychiatric or mental health treatment.

B.

However, the same can not be said for the alleged disclosure to Acquarulo.   There remain genuine issues of material fact in dispute regarding the scope of information that was disclosed to Acquarulo during that telephone call.   Therefore the defendant's motion for summary judgment is denied with respect to the plaintiff's claim that the defendant violated § 52-146e when agents made certain disclosures to Acquarulo over the telephone.

III.

The defendant argues that the plaintiff's common-law negligence claim, asserted in his Second Count, is more properly characterized as a claim for breach of confidentiality in the physician-patient or hospital-patient context which Connecticut doesn't recognize as a viable cause of action.   Despite arguing against this contention, the plaintiff has failed to provide this court with any case law to support his assertion that the defendant owed the plaintiff a common-law duty to maintain the confidentiality of the plaintiff's medical records and information.

Other states have recognized such a cause of action.²  But, this court is unaware of any controlling Connecticut case law that recognizes a similar common-law duty.   As a result, the plaintiff's common-law claim fails to allege a valid cause of action and cannot be remedied by repleading.   The defendant is, therefore, entitled to summary judgment on Count Two of the plaintiff's complaint.

IV.

In conclusion, the defendant's motion for summary judgment is granted as to the plaintiff's HIPAA claims, his claim regarding the facsimile to Silverstein, and his common-law breach of confidentiality claim;  and denied with respect to the plaintiff's claim arising out of the alleged disclosures to Acquarulo.   Additionally, the plaintiff's motion for partial summary judgment is denied.

Robinson, A., J.

FOOTNOTES

FN1. General Statutes § 52-146j provides in relevant part:  “Judicial relief. (a) Any person aggrieved by a violation of Sections 52-146d to 52-146j [which pertain to the disclosure confidential communications between a psychiatrist and the patient], inclusive, may petition the superior court ․ for appropriate relief, including temporary and permanent injunctions ․ (b) Any person aggrieved by a violation of Sections 52-146d to 52-146j, inclusive, may prove a cause of action for civil damages.”.  FN1. General Statutes § 52-146j provides in relevant part:  “Judicial relief. (a) Any person aggrieved by a violation of Sections 52-146d to 52-146j [which pertain to the disclosure confidential communications between a psychiatrist and the patient], inclusive, may petition the superior court ․ for appropriate relief, including temporary and permanent injunctions ․ (b) Any person aggrieved by a violation of Sections 52-146d to 52-146j, inclusive, may prove a cause of action for civil damages.”

FN2. See Alberts v. Devine, 395 Mass. 59, 68, cert. denied, Carroll v. Alberts, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed. 475 (1985) (“[A]ll physicians owe their patients a duty, for violation of which the law provides a remedy, not to disclose without the patient's consent medical information about the patient, except to meet a serious danger to the patient or to others”)..  FN2. See Alberts v. Devine, 395 Mass. 59, 68, cert. denied, Carroll v. Alberts, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed. 475 (1985) (“[A]ll physicians owe their patients a duty, for violation of which the law provides a remedy, not to disclose without the patient's consent medical information about the patient, except to meet a serious danger to the patient or to others”).

Robinson, Angela C., J.