Elaine Greer v. Doris Ryan et al. (2010)

MEMORANDUM OF DECISION RE IN CAMERA INSPECTION OF MEDICAL RECORDS

Elaine Greer (hereinafter “plaintiff”) commenced this action seeking monetary compensation for personal injury, pain and loss of earning and earning capacity against Doris Ryan (operator) and Raymond Ryan (owner) (hereinafter “defendants”) as a result of carelessness and/or negligent operation of a motor vehicle.

A dispute arose between the parties concerning the disclosure of certain medical records of the plaintiff.   The defendants issued a subpoena duces tecum together with a notice of deposition directed to the keeper of records of a treating physician of the plaintiff.   Plaintiff's counsel filed a motion to quash the subpoena duces tecum and motion for a protective order limiting the scope of the deposition and production of records to medical information relevant to the claims made against the defendants.   The plaintiff claims a right to privacy limiting the disclosure.   Furthermore, the plaintiff claims that the discovery process may not be used as a fishing expedition into the papers of the plaintiff.

To resolve the dispute, the defendant filed a motion for an in camera review by the court of the medical file of the treating physician dated September 1, 2010.   Counsel for the parties appeared before the court on September 17, 2010 and argued their respective positions.   The plaintiff's counsel provided the court with a sealed envelope of documents claimed by the plaintiff to be irrelevant to the present proceeding and/or privileged from disclosure.

APPLICABLE LAW

Practice Book § 13-5 provides in relevant part:  “Upon motion by a party from whom discovery is sought, and for good cause shown, the [court] may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:  (1) that the discovery not be had;  (2) that the discovery be had only on specific terms and conditions, including a designation of the time and place;  ․ (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters ․” Practice Book § 13-5 requires a showing of good cause for the issuance of protective orders.   A finding of good cause must be based on a particular factual demonstration of potential harm, not on conclusory statements ․ The extent of discovery and the use of protective orders is clearly within the discretion of the trial judge ․ The court's discretion applies to decisions concerning whether the information is material, privileged, substantially more available to the disclosing party, or within the disclosing party's knowledge, possession or power.”  (Citation omitted;  internal quotation marks omitted.)   McGuire v. Rawlings Co., LLC, Superior Court, judicial district of Bridgeport, Docket No. CV 00 0375212 (March 14, 2005, Skolnick, J.) (39 Conn. L. Rptr. 36, 39).   Moreover, “[o]ur Practice Book mandates full broad discovery prior to trial so as to avoid trial by ambush and allow all parties to have sufficient information to access the weaknesses and strengths to their particular claims.”   St. George v. Sanfilippo, Judicial District of New London, Docket No. CV 08 5006358 (November 12, 2009, Cosgrove, J.) (48 Conn. L. Rptr. 780, 781).

In Hackley v. Popp, Superior Court, judicial district of New Haven, Docket No. CV 07 5002241 (November 28, 2008, Rubinow, J.) (46 Conn. L. Rptr. 745), the plaintiff's complaint alleged that he suffered serious physical injuries following a motor vehicle accident, including “injuries to his neck and left knee,” and made “other allegations [addressing] the manner in which the [accident] adversely impacted his health status generally.”  Id., 747.   The plaintiff in Hackley further alleged that as a result of his physical injuries, “the [p]laintiff was rendered unable to perform his occupational duties for an extended period of time, resulting in wage loss,” and “[t]he plaintiff has been and will be unable to perform his occupational duties, and his earning capacity has been interfered with and impaired, all of which has and will cause him loss and damage.”  Id., 748.   The Hackley court found that “[g]iven the breadth of the foregoing allegations ․ the plaintiff placed the cause and status of his entire physical and emotional health, as it existed on and after [the day of the accident] squarely at issue in this case.”  Id.

In the present case, the plaintiff alleges that as a result of the defendants' negligence and carelessness, “the plaintiff received and suffered from the wrenching of her back, chest, ribs, hip and buttocks.   The plaintiff also received abrasions to her arms, legs, back and a hematoma to the back of the head.   The plaintiff suffers from multiple traumas with ongoing pelvic pain and discomfort with severe contusion, ecchymosis of the pelvic region, sacroiliac joint dysfunction and lumbosacral contusion injury.   She suffers from thoracolumbar pain, right sided posterior hip and buttock pain.   From all of the aforesaid injuries, or the effects thereof, the plaintiff has suffered and will suffer great pain, or the effects thereof, are, or are likely to be, permanent.”   Based on the plaintiff's allegations, the plaintiff does not allege that the accident adversely impacted her health status generally, or placed the cause and status of her entire physical health at issue.   Specifically, the medical records of the plaintiff's prior physical medical conditions unrelated to injuries alleged have not been placed into issue by the plaintiff and, therefore, the records relating to those conditions are not relevant and/or material in the present case.

The plaintiff further alleges in the present case that as a result of her physical injuries, she “has been and will be unable to perform her occupational duties as she did prior to said occurrence, and her earning capacity has been and will be impaired, all of which has and will cause her loss and damage.”   Based on the plaintiff's allegations, the court concludes that the plaintiff has placed the cause and status of her emotional health as it existed on and after the day of the accident at issue in the present case as to the claim of loss of earning capacity.   As a result, and in light of the court's broad discretionary powers relating to discovery issues, the medical records concerning the plaintiff's emotional and/or psychological health are discoverable.   The ability to earn income and the psychological or emotional reasons, if any, impairing that ability, is relevant and/or material to the controversy in question.

The court has reviewed the medical records and has found that the records that are privileged and/or immaterial to the claims in this case (in whole or as redacted) are not discoverable by the defendants.   The records that are discoverable shall be subject to the following order.

ORDER

The records deemed discoverable, with or without redaction shall be transmitted by the plaintiff to defendant within 7 days of the date of this order.   These records deemed discoverable by the court shall be utilized by counsel for the defendants for the purposes of this litigation only and returned to the plaintiff's counsel at the conclusion of the case through settlement, verdict and/or appeal.

Devine, J.

Devine, James J., J.