Vaughn Dunn et al. v. Alice Chen, M.D., et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR PROTECTIVE ORDER # 180

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff noticed the deposition of the defendant Dino G. Zacharakos, M.D. for March 27, 2009 and re-noticed for Wednesday June 10, 2009.   The notices of deposition requested that the defendant produce 18 separate groups of documents.   On August 6, 2009, the defendant filed a motion for protective order as to a number of the document requests.¹  The plaintiff submitted a motion in opposition to the motion for protective order on October 18, 2009 and the defendant submitted a reply memoranda on November 12, 2010.   The parties appeared and argued on December 7, 2010.   The argument of counsel for Dr. Zacharakos addressed not only the production of the documents at issue but also his objection to the extent of questioning during the deposition of the subject matter concerning the documents at issue.   Lastly, counsel for Dr. Zacharakos requested that any documents disclosed be limited to use in the present action only and not be disclosed to any other person for any reason including but not limited to other legal actions.

The defendant provided the court with a copy of the documents prepared in response to the deposition notice for review.   The plaintiff also provided as part of the filing in this court a privilege log that outlined the documents by categories and objections.   The plaintiff encouraged the court to review the documents in arriving at a decision as to whether the documents which defendant seeks to protect are similar to documents that he has not requested a protective order and thus are not protected by a privilege and also in determining if any of the documents are protected in accordance with the varied arguments of the defendant as noted in the privilege log as well as the memorandum and arguments of counsel.   In particular as to the documents the defendant has waived protection, the plaintiff argues if the 2004 documents are disclosed then the same category of documents dated 2008 cannot be privileged.

This action is based upon allegations of negligence as to the failure to properly care for the plaintiff, Vaughn Dunn, before, during and after a medical procedure at Norwalk Hospital on August 25, 2006.   The plaintiff, Vaughn Dunn was undergoing an injection procedure at the left L1, L2, L3 spinal levels performed by the co-defendant, Dr. Chen. Dr. Zacharakos was the anesthesiologist working with Dr. Chen during the procedure.   Dr. Zacharakos administered a deep anesthetic sedation to the plaintiff.   At the conclusion of the procedure, the plaintiff, Vaughn Dunn, experienced symptoms of numbness to his legs and thereafter suffered paraplegia.   The plaintiff contends that prior to the procedure Dr. Zacharakos failed to recommend additional MRI testing, was required to recommend a neurosurgery or neurology consultation, was required to review and take a full medical history of the patient, and was required to make an independent assessment of the appropriateness of the procedure, all of which he failed to do (Revised Complaint, Second Count, Par. 28a).   The plaintiff also alleges that the defendant administered the sedation although he knew it was a deviation from the standard of care applicable to a patient with this medical history and condition.   He further alleges after the surgery, the defendant failed to perform post-assessments, failed to write post-procedure notations indicating the existence of procedure complications and failed to order steroids in a timely manner and request a neurosurgery consultation in a timely manner.   The plaintiff remains paralyzed as a result of the allegations.

The plaintiff has named as defendants the doctor who performed the spinal procedure as well as the Anesthesiology group that employed Dr. Zacharakos at the time of this procedure and Norwalk Hospital.   The plaintiff contends that the documents requested are relevant not only for his claims against Dr. Zacharakos but also in regard to these other defendants.

The defendant contends that various state and federal statutes provide a privilege that protects the documents from disclosure.   Additionally, the defendant contends that the document requests are too broad, and too extensive or irrelevant as to the time periods and nature of the action for production of the documents.

I. DISCUSSION

Our rule as to discovery is that it should be permitted, “if the information sought appears to be reasonably calculated to lead to the discovery of admissible evidence.”  Connecticut Practice Book § 13-2.   To grant or to deny discovery is within the sound discretion of the trial court.  Sacks v. Sacks, 22 Conn.App. 410, 417, 578 A.2d 649 (1990).   The courts have construed discovery liberally and broadly.  Jacques v. Cassidy, 28 Conn.Sup. 212, 220-21, 257 A.2d 29 (1969).   It is limited to discovery of information or disclosure, production and inspection of papers, books, or documents material to the subject matter involved in the pending action, which are not privileged ․” Connecticut Practice Book § 13-2.   The defendant's motion for a protective order argues a number of different theories including statutory privileges as well as a general argument concerning the breadth and nature of the production requests that accompanied the notice of deposition.   Additionally, the defendant has argued that not only should the court grant the protective order as to the documents but also enter an order that the plaintiff will not inquire as to the subject matter during the course of the deposition of Dr. Zacharakos.   The court has reviewed the memorandum, the oral arguments of counsel and reviewed the proposed documents in thirteen separate Exhibit categories as part of the privilege log provided by the defendant with the agreement of all counsel to permit the court to conduct an in camera review.

II. PROTECTIVE ORDER

Pursuant to Practice Book § 13-5 et seq., the defendant, Dr. Zacharakos, requested that the court enter a protective order addressing the documents requested in conjunction with the deposition notice of the defendant, Dr. Zacharakos.   Connecticut Practice Book establishes a liberal rule in permitting discovery requests as noted above for documents material to the subject matter involved in the pending action.  Connecticut Practice Book § 13-2.   The defendant argues that the production requests are oppressive, annoying and protected by privilege so that the court should enter a protective order to prevent their disclosure.   The court has the inherent authority to moderate the discovery process by imposing protective orders under the appropriate circumstances.  Rosado v. Bridgeport Roman Catholic Diocese Corp., 276 Conn. 168, 221-22 n. 59, 884 A.2d 981 (2005).   The defendant objects to the production of six separate areas in relation to the production requests as noted below.

A. Production number 7 requests copies of all documents pertaining to deponent's applications to the State of Connecticut for a medical licensure.

The defendant has set forth three arguments in relation to the request for medical licensure, that is, the request is broad, it seeks information equally available to the plaintiff and it seeks privileged information pursuant to federal law and state statute particularly § 20-13e and 45 U.S.Code § 60.1 et seq.

B. Production numbers 8 and 9 request information from the State of Connecticut Department of Public Health pertaining to the license and medical status of the defendant including the transcripts and audio recordings of any proceedings involving the defendant.

The defendant contends that the information related to the Department of Public Health hearing and charges are privileged pursuant to General Statute § 20-13e(a) by participating in a voluntary rehabilitation program.   Additionally, the defendant contends that General Stat. § 19a-12a et seq. provides a privilege for the Voluntary Assistance Program which was utilized by him in conjunction with the Department of Health hearing.   Lastly, the defendant contends that any disclosable documents are equally accessible to the plaintiff.

C. Production number 10 requests all documents pertaining to the defendant's application for privileges at Norwalk Hospital.

The defendant contends this request seeks documents protected by the National Practitioner Data Bank, 45 U.S.C. § 60.1 et seq.,2 as well as the statutory protection of §§ 20-13e(a), 19a-12a(h) and 19a-12b and 19a-17b and the Health Care Quality Improvement Act.

D. Production request number 11 requests all documents pertaining to deponent's Norwalk Hospital credentials and hospital privileges from January 2001 to the present time.   The defendant raises some of the same arguments as are made in Request number 10 above.

E. Production request number 12 is a copy of any patient complaints or criticisms of the defendant's care and treatment of patients.

General Statute § 52-146o(b) is relied upon by the defendant as prohibiting the disclosure of such communication without the authorization of the patient or his authorized representative.   The same confidentiality arguments as to the other requests are also part of the defendant's argument through counsel.   The defendant argues that if there were complaints made regarding the defendant's care and treatment of patients this statute would prevent such production.   The defendant also offers the response that he is unaware of any complaints/criticisms.

F. Production request number 14 seeks any written notifications of privilege termination or restriction issued by the Norwalk Hospital to the defendant.

The defendant contends that a number of statutory privileges apply to protect the documents from disclosure such as §§ 20-13e(a), 19a-12a(h), 19a-12b, and 19a-17b and 42 U.S.C. § 11137(b).

G. Production request number 15 seeks copies of all documents pertaining to deponent's application(s) to Norwalk Anesthesiology and Anesthesia Associates of Southern Connecticut.

The defendant contends that General Stat. § 3l-128f protects these files from disclosure as part of the confidential personnel file.

H. Production number 16 seeks any written notifications of privilege termination or restriction issued by the Anesthesia Associates of Southern Connecticut to the defendant.

The defendant contends that the peer review statute protects disclosure of such documents as well as the protection afforded to a personnel file pursuant to § 31-128f and the Health Care Quality Improvement Act, 42 U.S.Code § 11137(a).

I. Production numbers 17 and 18 seek documents related to applications to anesthesiology groups and hospitals since leaving Norwalk Hospital.

The defendant contends that these applications after the incident are irrelevant to the issues in this matter.   The defendant contends that such a request is contrary to the protections afforded by 45 U.S.Code § 60.1 et seq., 42 U.S.Code § 11137(a) and C.G.S. §§ 19a-17b and C.G.S. § 31-128f.

The court has reviewed each of the memoranda, heard the arguments of counsel in conjunction with the examination of each document provided in the privilege log to determine as to each document if the motion for protective order should be granted or denied.

III. DISCUSSION OF THE STATUTORY AUTHORITY

The defendant, Dr. Zacharakos, has cited several state and federal statutes as support for his argument that the documents requested are protected from disclosure.

A. Connecticut Statutory Authority

General Stat. § 20-13e ³ provides for confidentiality of the record including any program which may have been a part of the Department of Public Health's consideration.   A portion of the statute that provides for confidentiality was amended in 2007 to permit a consideration of rehabilitation and confidentiality.   It provides that if the department determines that the physician is an appropriate candidate for participation in a rehabilitation program in accordance with the provisions of Sections 19a-12a and 19a-12b then the records shall remain confidential upon successful completion of the program in accordance with the terms and conditions agreed upon by the physician and the department.  C.G.S. § 20-13e(a).

The defendant contends the testing and review that he took part in as a response to the hearings before the Department of Public Health and thereafter the monitoring of his work is protected as physician assistance in accordance with C.G.S. § 20-13(e)(a).   The defendant contends that although these events occurred before the statute was amended to include a confidentiality provision, he should be protected based upon the spirit and intent of the law (which the defendant also equates with peer review) and because of the agreement of the parties involved in the state review and analysis.   The plaintiff argues that even if the court recognizes a protection for the voluntary program and review, there is no basis for protection because the statute is limited to chemical dependency problems and behavioral disorders which are admittedly not the problem in the instant matter.   The statute does not provide limiting definitions and although this issue is not decisive in this matter, the court cannot determine that there are clear limits to chemical dependency and behavioral disorders.   However, based upon the facts provided in the instant case there is sufficient information to determine that sleep difficulty is not a focus of the protections of the statute.

The interesting issue in regard to the documents that the defendant contends are protected by this statute is that the documents have been made public to some degree as a part of a normal inquiry pursuant to the Freedom of Information requests by at least this defendant.   The defendant, although arguing the privilege, has not requested of the Department of Public Health that the documents or proceedings be sealed.   Additionally, at argument all parties conceded that the hearing was open to the public and the defendant has received transcripts of each of the hearing dates.   Anyone could request the information from the department and receive all of the materials.⁴  The production of the documents upon request of the defendant by the Department of Public Health leads the court to find that the claim by the plaintiff that the documents do not fall within this exception is supported by the defendant's and the department's prior actions in the release of the documents.   This finding is also supported by the actions combined with the language of the statute that permits pre June 11, 2007 petitions and rehabilitation to have the documents treated as confidential, if there are terms and conditions set to do so.⁵  The Consent Order and agreement of Dr. Zacharakos fails to include a provision of confidentiality for the records.   The only hint is the authorization of medical records for purposes of the hearing by the defendant which implies a confidentiality for the medical records.   This is not to say that other privileges or protections would not be available to the defendant as a consequence of other statutory protections such as medical records pursuant to HIPAA or peer review.⁶  Additionally, a review as to the method which the defendant utilized to address the sleep concerns does not consist of rehabilitation as intended by the statute.   The defendant simply changed his life style to get adequate sleep to help him function.   He was not addicted to drugs or alcohol that required an intervention to address a habit.   The documents as provided by the defendant in the privilege log Exhibits 10, 11, 12, and 13 and portions of other exhibits contain the documents relevant to this inquiry.

In conjunction with this argument, the defendant contends that disclosure is protected because the defendant took part in a professional assistance program.  General Statute § 19a-12b.   This statute was enacted in 2007, three years after the incident and two years after the involvement and decision of the Department of Public Health.   The facts of the instant dispute do not include any basis for this court to find that until this litigation and discovery the defendant had any reliance that there would be an application of confidentiality to the charges, the proceedings, the exhibits or the findings.   Not only does the statute post-date the incidents but there is no evidence that the protection was sought or discussed by any party.   The statute does provide language regarding a program prior to June 11, 2001 that is based upon completion of a rehabilitation program that has “terms and conditions agreed upon by the physician and the department.”   However, the unilateral agreement to be tested and/or to take corrective steps including monitoring prior to the statutory amendment is not confidential because as stated above it was not demonstrated to be a program for rehabilitation that would satisfy the rehabilitation criteria that is the impetus to the confidentiality.   The fact that the steps taken by Dr. Zacharakos were part of his efforts to address the complaint and that thereafter Dr. Zacharakos made no effort to keep the matter confidential is relevant for purposes of determining if he has any statutory protection even if applied retroactively.   But the statute specifically allows for the confidentiality “in accordance with the terms and conditions agreed upon by the physician and the department” if the physician successfully completes a rehabilitation program.   The defendant has not satisfied the criteria of the statute which would permit the application of privilege to maintain confidentiality.

General Statute § 19a-17b provides protection from disclosure for documents related to peer review.   This statute 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.”   The statute specifically provides as to the proceedings that:  “The 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 ․” However, the statute also contains the following exceptions permitting (1) in any civil action, the use of any writing which was recorded independently of such proceedings;  (2) in any civil action, the testimony of any person concerning the facts which formed the basis for the institution of such proceedings of which he had personal knowledge acquired independently of such proceedings;  (3) in any health care provider proceedings concerning the termination or restriction of staff privileges, other than peer review, the use of data discussed or developed during peer review proceedings;  or (4) in any civil action, disclosure of the fact that staff privileges were terminated.” ⁷  Both parties argue that Babcock v. Bridgeport Hospital, 251 Conn. 790, 742 A.2d 322 (1999), supports their position regarding the peer review records.   The defendant interprets the Babcock language very broadly to protect any document that may be related to a review of performance.   Whereas, the plaintiff contends that Babcock restricts such privilege only to instances where a medical review committee is engaged in the peer review.   Babcock, supra, 251 Conn. 827-29.   In other words, the plaintiff contends that when the documentation is simply a part of the ongoing requirement to report and placed in the record for the hospital follow-up review, then these documents do not come within the privilege documents of the statute.   In Neumann v. Johnson, Superior Court, Docket Number X04 CV000120565S (August 29, 2001, Koletsky, J.), 2001 WL 1159565 (Conn.Super.), the court was able to distinguish documents that fall within peer review as opposed to a collection of documents which serve no other purpose than to be an acquisition of data.   In order to satisfy the intent and the definition of a document submitted for peer review, the document must be a part of a decision making review.   The court in Holley v. Norwalk Hospital, Superior Court, complex litigation docket at New Haven, X10 NNH CV 044017092 (January 19, 2006, Munro, J.), found that “[T]he privilege is absolute, unless one of the specified exceptions are met.”   The court established a very narrow application of the exceptions and therefore any document created principally for the purpose of the peer review would fall within the privilege.   In the instant action, the defendant has provided the court with a CD and privilege log that contains many documents which he contends falls within this privilege.   In relation to the documents that defendant contends are protected there are a number of documents that contain information of a general nature that appear to be part of the process for consideration of admitting to the hospital for privileges.   However, the court in Babcock was very specific and narrow in its findings regarding documents that are protected.   The court stated:  “simply because a hospital committee is a medical review committee does not suggest that all of its activities are considered peer review proceedings.   The scope of § 19a-17b is specifically defined, not by the nature of the committee, but by whether the committee was engaged in “peer review” ․” [T]he privilege applies only to those documents that reflect the ‘proceedings' of a peer review, or that were created primarily for the purpose of being utilized during the course of peer review.   In addition, the privilege does not apply to those documents that were independently ‘recorded’ or ‘acquired.’  Babcock, supra, 251 Conn. 822.   The court acknowledged that its interpretation does not interfere substantially with a medical malpractice plaintiff's access to information, given that evidence of a practitioner's negligence is immune from discovery only to the extent that it is disclosed solely during the course of peer review.”   Babcock, supra, 251 Conn. 826.   The statute defines a “medical review committee” as any committee of a state or local professional society or a committee of any health care institution established pursuant to written by-law, and any utilization review committee established pursuant to Public Law 89-97, and a professional standards review organization or a state-wide professional standards review council, established pursuant to Public Law 92-603, engaging in peer review, to gather and review information in relation to the care and treatment of patients for the purposes of (A) evaluating and improving the quality of health care rendered;  (B) reducing morbidity or mortality;  or (C) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care.   It shall also mean any hospital board or committee reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto.”   The court in UConn Health Care v. FOIC, Superior Court, judicial district of New Britain at New Britain, Docket Number CV 074013408S (March 13, 2008, Owens, J.T.R.) (2008 Ct.Super 4224) found that a credentials committee established pursuant to written by-laws is a medical review committee engaged in peer review.

The defendant contends this protection extends to the production request numbers 7, 10, 11, 14, 15, 16, 17, and 18.   A review of the documents provided by the defendant for in camera review by the court does not extend the privilege to a number of documents because they were not being discussed in accordance with the statute for the principal purpose of evaluating and improving the quality of health care rendered or enforcing guidelines but the documents were for the purpose of evaluating the claims of negligence and the supervision consistent with actions related to the Public Health Department hearing.   For instance, the licenses or insurances that were submitted as Exhibit 2 contain information that is not a real part of the discussion for the quality of health care.   They are documents which in some instances are readily available from other sources such as licensing departments within the state.   Additionally, the insurance coverage while a concern to the hospital as a means of protection is not a document serving the purpose of determining the ability of Dr. Zacharakos to provide medical services or his quality of care.   These documents are clearly included in the file or records as a depository and not for use in evaluating the defendant for peer review or for purpose of improving the quality of health care.   In Ghent v. Glassman, Superior Court, judicial district of Danbury at Danbury, Docket Number CV 0303458848, (January 6, 2005, Downey, J.) (2005 Ct.Sup. 196), the court found that documents that contain professional schooling and licensure data and professional degrees, privileges authorizations, reappointment forms, continuing education, insurance coverage documents, curriculum vitae with a listing of publications and correspondence regarding medical record suspensions (temporary and internal to the hospital), fines and a resignation letter were releasable and not subject to a peer review privilege.   The purpose of protecting the peer review documents is to foster an environment of medical candor.   The legislature has determined that in order to continue the relationship, the element of confidentiality is essential.   Given this theory, the documents such as those placed in the files to check credentials for the Board of Trustees or from various department heads who related concerns or satisfaction with the work of the defendant were reviewed in camera and should not be disclosed pursuant to this statute.   However, others as noted above serve no real review purpose and thus would not be protected as noted by the court in Schedule A.

The defendant also contends that the some of the same information is subject to the protection of General Stat. § 31-128f regarding personnel files.⁸  The decision as to whether the information in a personnel file should be disclosed rests in the discretion of the court.  Rosado v. Bridgeport Roman Catholic Diocese, et al., Superior Court, judicial district of Fairfield at Bridgeport, CV 93 0300272 (December 8, 1994 Levin, J.) (1994 Ct.Sup. 12422).   The decision should be in a manner to subserve and not impede or affect the ends of substantial justice, citing State v. Januszuweski, 182 Conn. 142, 172 (1980), See Donaldson v. Sheffield, Superior Court, judicial district of New Haven, CV 99-04330741 (July 30, 2002, Robinson, J.).

In the case of Holley v. Norwalk Hospital, Superior Court, judicial district of New Haven, X10 NNH CV 04-40 17029S (January 19, 2006, Munro, J.), the court ruled that where there were counts regarding supervision, discipline and employment of the defendant doctor the personnel file would be relevant to the plaintiff's cause of action and thus the court ordered disclosure unless the document was deemed privileged by other statutes or rationale.   Therefore, the files of Anesthesia Associates of Southern Connecticut and Norwalk Hospital noted in Exhibits 1, 6 and 7 should be disclosed in accordance with the in camera review analysis as noted in Schedule A.

The defendant argues that applications of Dr. Zacharakos after the August 25, 2006 claim have no relevance to the instant action.⁹  In this regard as to the application itself the court agrees with the defendant.   However, the court does not agree that the subject matter of additional or changed work, licensing and certifications is not appropriate for questions at depositions.   Therefore, to the extent that the plaintiff seeks the employment or certifications of the defendant after the incident that is the subject of this action the court will not grant a protective order.

The supervision log of the anesthesiology group for Dr. Zacharakos is not at issue.   The defendant concedes that for purposes of the claim of improper supervision these documents are disclosable.   This concession by the defendant waives the peer review statutory exception.

General Stat. § 52-146o(b) cited by the defendant in his reply memorandum is not applicable to the request for complaints or criticism.   First of all, the defendant assumes that the only person who may complain is a patient but this assumption is misplaced.   The 2004 incident to which the defendant has various objections to disclosing as noted above was, according to counsel initiated, not by a patient, but by other professionals because as counsel indicated the patients were under the sedation and did not know what was happening.   Therefore, the premise of the defendant that such complaints cannot be disclosed is incorrect.   Secondly, even assuming that a patient or their representative has filed a complaint or a criticism, the statute speaks to the treatment or evaluation of the patient being protected but does not address a complaint by a patient which would not be included within the protected subject matter.   Therefore, the defendant must respond to the production request and if there is a complaint or criticism, any written communication should be provided to the plaintiff.

B. Federal Statutory Authority

The plaintiff contends that a number of the documents requested are protected by the National Practitioner Databank.   Pursuant to the Health Care Quality Improvement Act of 1986 (the “Act”) which is codified in 42 U.S.C.A. § 11101 et seq.   The basic scheme of the statute is to protect physicians involved in peer review proceedings from threat of private money damage liability under federal laws including treble damage liability under federal antitrust law, unreasonably discouraging participation in effective professional peer review.  (Congressional findings, § 11101).   Under § 11133 subsection (a).

Each health care entity which-(A) takes a professional review action that adversely affects the clinical privileges for a period of longer than 30 days [or] (B) accepts the surrender of the clinical privileges of a physician-(i) while the physician is under an investigation by the entity relating to possible incompetence or improper professional conduct, or (ii) in return for not conducting such an investigation or proceeding ․ shall report to the Board of Medical Examiners ․ [defined in § 1115] as the State Board of Medical Examiners, or comparable body] (A) the name of the physician or practitioner involved, (B) a description of the acts or omissions or other reasons for the action, or, if known, for the surrender, and (C) such other information as the Secretary [of the United States Dept. of Health and Human Services] deems appropriate.

The state Board of Medical Examiners, then, is required under § 11133 Subsection (b) to report to the Secretary “the information reported to it under subsection (a).”   Under § 11137(b)(1), information reported under this part “is considered and shall not be disclosed (other than to the physician or practitioner involved) except with respect to professional review activity ․” But there is a significant proviso to the federal rule of confidentiality in § 11137(b)(1)(a):  “Nothing in this subsection shall prevent the disclosure of such information by a party which is otherwise authorized, under applicable State law, to make such disclosure.”   The Act is not a complete bar to disclosure.

The reports to be made to the Secretary of the Department of Health and Human Services can, under § 11134, be made to “an appropriate private or public agency designated by the Secretary.”   That designation has been made and the public agency to receive such reports is now by regulation the National Practitioner Data Bank. 45 C.F.R. § 60.1 et seq.   The hospital cites the regulations regarding this Act as providing the privilege.   This Act creates a national repository of information about the competency of physicians and provides hospitals with access to that information during hiring or reviewing processes.   Hospitals may request and receive information on file with the National Practitioner Data Bank (“NPDB”) concerning a physician who has clinical privileges at the hospital. § 60.11(1).   Hospitals are required by § 11135 of the Act and by 45 C.F.R. § 60.10(a) to request information on file at the NPDB regarding medical staff with privileges:  (1) at the time a physician ․ applies for a position on its medical staff (courtesy or otherwise), or has clinical privileges at the hospital;  and (2) every 2 years concerning any physician ․ who is on its medical staff (courtesy or otherwise), or has clinical privileges at the hospital.

This regulation indicates that the information or documents kept in the databank are confidential and not available to any person except the hospitals for the purpose of determining the background of doctors.¹⁰  The information sent to the National Databank is not information that would normally be disseminated to others unless it is information from another source incorporating some of the same background.

Counsel for the plaintiff agrees that information received and kept by this Databank is not information readily available to others.   However, they argue that because the action involves a claim for negligent supervision, the plaintiffs have a right to know if the hospital made a query to the databank when determining if privileges would be granted and, if so, an inquiry each two years thereafter.   In fact, the plaintiff cites to the regulations that permit an attorney or individual representing himself of herself who has filed a medical malpractice action may obtain this information regarding the obligation of the hospital.  45 CFR 60.11a subsection 5 which provides:  “[A]n attorney, or individual representing himself or herself;  who has filed a medical malpractice action or claim in a State or Federal court or other adjudicative body against a hospital, and who requests information regarding a specific physician ․ Provided, that this information will be disclosed only upon the submission of evidence that the hospital failed to request information from the Data Bank as required by 60.10(a), and may be used solely with respect to litigation resulting from the action or claim against the hospital ․” In interpreting this section of the federal law, the documents are disclosable only after there is some indication that the hospital has not followed the regulations.   However, the claim in the instant motion is that the documents should be provided by the defendant, Dr. Zacharakos, at his deposition and not by the hospital as a result of a claim that it failed to follow the requirements to request the NPDB as noted in § 60.11. This interpretation leads to two reasons why the court would be inclined to grant the protective order pursuant to this argument as to production of these documents from Dr. Zacharakos.   First, the request to produce is made to Dr. Zacharakos and not the hospital.   Dr. Zackarakos does not have the responsibility of inquiring of the Data Bank. This requirement of the hospital would be subject to an appropriate interrogatory or production request to the hospital.   Secondly, the plaintiff in argument cited the section which permits disclosure directly to them from the Databank.   However, the plaintiff has not indicated or demonstrated that the hospital has failed to satisfy the statutory inquiry to allow an exception.   There is only speculation that the hospital did not comply with the requirements of the data bank so as to allow disclosure as required by subsection 5.

The defendant has also argued that any materials that are acquired by Norwalk Hospital from the National Practitioner Data Bank are prohibited from release and that the Health Care Quality Improvement Act (“HCQIA”) prohibits the release of Dr. Zacharakos credentialing and privilege file to the extent it was obtained by Norwalk Hospital or used in peer review proceedings by the hospital to review the physician's license.  42 U.S.C §§ 11137(a) and (b).  The federal cases recognize that this section creates a qualified privilege for information actually filed with the National Practitioner Data Bank, subject to the proviso of § 11137(b)(l)(a) which states that:  “Nothing in this subsection shall prevent the disclosure of such information by a party which is otherwise authorized, under applicable State law, to make such disclosure.”   The federal law does not, as plaintiff implies, hold that there is a federal policy precluding discovery of peer review materials.  LeMasters v. The Christ Hospital, 777 F.Sup. 1378 (S.D. Ohio, Western Div.1991), Johnson v. Nyack Hospital, 169 F.R.D. 550 (SDNY 1996).   Therefore, the state law discussion as noted above controls the disclosure of the documents by Dr. Zacharakos.¹¹  The documents of the National Practitioner Data Bank are protected if there is no demonstration that the hospital failed to follow the inquiry requirements or if the documents were provided to the Hospital to be utilized in peer review as it is discussed herein.

The court has reviewed in camera the documents provided by counsel in Exhibits 3, 4, and 6 which included a number of documents related to this argument to determine if they are protected and has separately analyzed each document to reflect the courts order in Schedule A.

C. Department of Public Health records and transcript

The defendant argues that the records of the investigation conducted by the Department of Public Health including the transcript and exhibits, and treatment are not disclosable based C.G.S. § 20-13e as noted above.¹²  In addition, the defendant contends that the documents could be obtained by the plaintiff himself and thus the defendant is not obligated to provide the documents to the plaintiffs.   Lastly, the defendant argues that the records are remote in time and not similar to the present incident.   The defendant does concede that the documents related to the claim of negligent supervision or negligent hiring that may be part of the hearing may be disclosable.   In particular, the defendant concedes that the statement of charges, memorandum of decision and the notice of hearing are all discoverable.   The argument as to the remaining documents on first glance appears inconsistent because of the overlap of the documents.   But the documents related to the supervision, the corrective or rehabilitation efforts and results, and the hospital administration are separate and distinct from the transcripts or hearing material.   The defendant argues on the one hand that these documents are protected by the statute but in oral argument before this court it became clear that the hearing before the panel for the Department of Public Health as well as the charges, decision and other material were readily open to any member of the public.   The plaintiff argued that the documents had been provided without any steps to protect the alleged privilege of the documents or hearings.   Yet now the defendant seeks some protection even though he has never raised the issue of sealing the Public Health records.   The defendant's argument that the hearing transcripts and exhibits are confidential is disingenuous since the defendant also conceded at argument that the right person with the right timing could request the documents and they would be disclosed.

The in camera review by this court of the documents that were part of the hearing including evidence demonstrates that there were submissions that may fall within the criteria of a statutory privilege.   What is more disconcerting to the court is that the defendant appeared before the hearing panel, actually engaged in four days of hearings that were open to the public and never once until this discovery request raised a concern that the documents of the hearing along with the exhibits and findings of the panel should now be protected.   The defendant argues that after this hearing the legislature has provided protections to those who engage in rehabilitative efforts and are successful as part of a hearing process.   The defendant argues that this protection should be extended to Dr. Zacharakos because he participated in a review, analysis and rehabilitation to address his sleep deficiencies.   However, Dr. Zacharakos did not participate in the medical review and monitoring efforts with the understanding that the hearings and findings would not be disclosed.   The defendant has not supported his position to now attempt to invoke a privilege where none existed and where the documents and proceedings were conducted in the public arena.   The defendant has already by his public participation allowed the materials to be disseminated.   The court has discussed the implications of the statute in relation to the hearing and proceedings before the Department of Public Health above.   Although the court does not agree that the protective order should extend to the charges, hearings, and results, it does incorporate other protections afforded to the defendant such as a protection of his medical records and a determination that for purposes of the instant action some of the documents are not relevant.   For instance, The Health Insurance Portability and Accountability Act (“HIPAA”), 42 U.S.C. § 1320d et seq., protects privacy of health related information.  “HIPAA regulation 45 C.F.R. § 164.512(e)(1)(i) ․ authorizes a ‘covered entity’ to disclose private health information without an individual's authorization or consent in the course of any judicial or administration proceeding ․ [i]n response to an order of a court.”   However, this court is not satisfied based upon the argument of counsel and a review of the medical reports and tests that the information that was included in the Public Health Department hearings is relevant to the claims in this matter.   The court gives great deference to the privacy of individuals regarding their health care and choices and does not lightly permit disclosure based upon speculation.   Here, however, the defendant argued and the documents reviewed in camera support the defendant's position that the medical records do not disclose information that have a bearing on the actions in this matter.   So, other than the medical documents, the court does not find that the defendant satisfied his burden of proof that the charges, hearing transcripts, findings and other non-privileged documents should be protected from disclosure.¹³

D. REMOTENESS AND TIMELINESS OF THE DOCUMENTS

The defendant has argued that the time periods related to the request for some document requests is either well before the incident that gives rise to this action or is not relevant because it was after the incident.   In particular, the defendant argues that some of the documents, for instance the complaints about sleeping and the documents that were part of the hearing are too remote in time to be relevant to the present claim based upon an incident that occurred approximately two years later.   This objection is a simple relevancy question and the timing in and of itself is not a basis in this case to grant a motion to protect.   The time between the sleeping incidents, the evaluation and the monitoring of Dr. Zacharakos was approximately one to two years before this incident.   This time period is not so remote as to be protected from disclosure.   Therefore, the defendant's arguments regarding the claims and actions surrounding the Department of Public Health complaint and hearings should not be protected from disclosure based upon this argument.

However, the disclosure of documents dating back to the initial application and involvement with both Norwalk Hospital and Anesthesiology Associates of Southern Connecticut (AASC) may be too remote in time.   The defendant argues that he became associated with these organizations in 1980, some 21 years ago, which is a period of time the court finds to be remote.   The records of the hospital and AASC regarding the initial inquiry and any inquiries thereafter to the National Practitioner Data Bank are not too remote in time.   This inquiry is not properly directed to the defendant and therefore the defendant is not obligated to keep or disclose these records and the objection in this regard will be sustained.

The defendant also argues that the documents of credentialing and peer review after the incident are not disclosable because events after have no relevancy to any of the claims including supervision by the hospital and AASC. In particular, the defendant acknowledged at argument that the defendant is no longer employed by either the hospital or AASC. In order for him to obtain employment or privileges elsewhere he submitted applications and documents to support his application.   Additionally, any hospital or group would be required to make an inquiry to the National Practitioner Data Bank during the hiring process.   This scenario would not include Norwalk Hospital or AASC. It has no relevance to the supervision claim in this action.   As such any claim that the documents for post-applications including any inquiry would not be relevant nor lead to discoverable information for the present action.¹⁴  However, the court has indicated that the plaintiff may inquire as to his licensing, employment and privileges during the defendant's deposition.

E. IN CAMERA REVIEW

The court has conducted an in camera review of the documents that the defendant indicates responds to the production requests.   They are categorized into thirteen separate Exhibits and provided to the court at the hearing and argument on December 7, 2010.   After review of the documents and the law cited by the parties and considering the arguments of counsel the court has determined which documents are protected by the state or federal law as set forth above.

Schedule A attached to this decision sets forth in detail (that is page by page) which documents should be produced.

CONCLUSION

Based upon the above, the motion for protective order is granted in part and denied in part as fully set forth in Schedule A.

As discussed herein the documents that are protected from disclosure are:

1) documents that are part of the peer review in accordance with C.G.S. § 19a-17b.   This includes only those documents created primarily for the purpose of being utilized during the course of peer review;

2) documents from the National Practitioner Data Bank;

3) medical reports and tests or analysis of the medical testing.   This includes all documents as part of Talbot Recovery with the exception of inquiry at the deposition as noted below;

4) applications for employment, licensing or privileges after the defendant left AASC and Norwalk Hospital;

5) documents from the Department of Public Health including charges, hearings, and

decision including exhibits with the exception of medical records;  and

6) complaints prior to five years before and five years after the incident.

As to any documents which are to be disclosed in accordance with this ruling, if the defendant seeks to seal any documents, he shall file the appropriate motion with the court within 10 days of this order.   The court has received the CD by counsel with the privilege log that was to be reviewed in camera.   The court interprets the depositing of the CD with the court in accordance with Connecticut Practice Book § 7-4C and any motion addressing this CD shall also be submitted to the court within 10 days of the order.

Any documents to be disclosed shall also be redacted in accordance with Connecticut Practice Book § 4-7 before disclosure.

As to the request to preclude inquiry at the deposition, the motion is granted in part and denied in part in that:

1) The plaintiff shall not inquire as to the National Practitioner Data Bank or the peer review documents.   However, the plaintiff may inquire as to the process of peer review and not the privileged documents.

2) The plaintiff shall not inquire specifically as to the medical reports or tests but may inquire as to the general nature of tests or reports and findings in relation to the charges before the Department of Public Health.

3) The plaintiff may not inquire specifically as to documents related to employment, licensing and privilege applications but may inquire as to employment after Norwalk Hospital and AASC or licensing or privileges that the defendant has received after leaving Norwalk Hospital and AASC.

4) The plaintiff may inquire as to the Department of Public Health charges, hearing and decision with the exception of specific medical reports and tests.

THE COURT

Brazzel-Massaro, J.

Schedule A

EXHIBIT 1 (pages 1 through 212)

The motion for protective order is granted as to the following pages and they are not subject to disclosure pursuant to § 19a-17b as defined above as peer review by a committee pursuant to Babcock v. Bridgeport Hospital, 251 Conn. 790 (1999), and the rational as set forth by the court above.

Pages 2 through 10 inclusive.

Pages 57 through 59 inclusive regarding letters to the credential committee pursuant to § 19a-17b.

Pages 60 through 208 except pages 148, 149, 150, 151, 152, 186, 187, 188 and 189 medical peer review for various periods of time.   Note pages 167 and 186 excluded because also privileged pursuant to National Practitioner Data Bank (42 U.S.C. § 11137(b)).

Page 212 peer review privilege.

The motion for protective order is denied as to the following pages and they will be disclosed.

Page 1 cover sheet.

Pages 10 through 56 copies of license, registrations and certifications.   This is general information available upon request to state licensing boards and is not the same as documents that made up the peer review.

Pages 148, 149, 150, 151, 152, 186, 187, 188 and 189.

Pages 209 through 211 curriculum vitae of Dr. Zacharakos see State of CT v. F.O.I. Commission, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 07 4015408 (March 13, 2008, Owens, Howard, J.T.R.).

EXHIBIT 2

The motion for protective order will be granted as to Page 6 (medical test).  (Conn.Gen.Stat. § 31-128f).

The motion for protective order is denied and the following will be disclosed.

Pages 1 through 5 do not fall within peer review Neumann v. Johnson, S.Ct. X04 CV 000120565 S (August 29, 2001, Koletsky, J.).

Pages 7 through 42-each of these items may have been submitted as part of the privilege extended to the defendant.   However, the issuance of licenses are material available from all of the other sources and are not considered as documents for peer review in evaluating the quality or ability of work.   These documents are nothing more than an acquisition of data as the court found in Newmann.   Not all documents used by peer review are protected from discovery.   Babcock v. Bridgeport, supra 251, Conn. 820-26.

EXHIBIT 3

In accordance with the discussion as to the Public Health Department Conn. Gen.Stat. §§ 20-13e and 19a-12 the defendant shall disclose the statement of Charges in their entirety.   The motion is denied as to Exhibit 3 in its entirety.

EXHIBIT 4

As noted above (the Memorandum of Decision) (pages 1-6) shall be disclosed in its entirety.   The motion for protective order is denied as to Exhibits 4 in its entirety.

EXHIBIT 5 (pages 1 through 54) (DPH and Physician Assistant Programs)

The motion for protective order is denied as to the following pages which shall be disclosed.

Pages 7 through 8

Pages 9 through 12

Pages 15 through 18

Pages 20 through 22

Pages 26 through 27

Pages 31 through 35

The motion for protective order is granted as to the following pages which shall not be disclosed based upon the arguments of defendant.

Pages 1 through 6 (credentialing, 13, 19, 23, 26, 27)

Pages 28 through 30-medical record

Pages 36 through 41

Pages 42 through 54 (19a-17b and relevance) Pages 24 and 25 shall not be disclosed pending the defendant's supplemental argument as to whether this is privileged as peer review.

EXHIBIT 6 (pages 1 through 137)

The motion for protective order is denied as to the following which are to be disclosed as a result of the court's in camera review and the application of the law as argued by the parties and provided in the privilege log.

Pages 1 through 7-no objection

Pages 11 through 14

Pages 48 through 51

Page 57

Page 59

Page 65

Pages 68 through 70

Pages 71 through 77

Pages 80 through 81

Pages 82 through 85-cv-and termination

Pages 95 through 102 (also see Exhibit 9)

Pages 104 through 107

Pages 112 through 132

The motion for protective order is granted as to the following documents which are protected from disclosure as noted in the Memorandum of Decision and the arguments and statutes in the privilege log.

Pages 8 through 10 and 15 through 18

Pages 19 through 37 (medical reports)

Pages 38 through 40 (personnel file)

Pages 41 through 47

Pages 52 through 56 and 58 (peer review)

Pages 60 through 64

Pages 66 through 67

Pages 78 through 79

Pages 86 through 94 and 103 and 108 (medical reports)

Pages 109 through 111

Pages 133 through 137

EXHIBIT 7 (pages 1 through 34)

No objection to disclosure

EXHIBIT 8 (pages 1 through 77)

The court grants the protective order as to the applications after the incident in accordance with the Memorandum of Decision.

However, the court does not grant the protective order as to the C-V noted on pages 42 through 45.   This will be provided to counsel.

The plaintiff may inquire at the deposition as to the defendant's work history and resignations since 2005 from Norwalk Hospital and Anesthesia Associates of Southern Connecticut as well as positions held since the date of resignation from the two entities.

EXHIBIT 9 (pages 1 through 18)

The defendant's motion for a protective order as to pages 1 through 18 is denied.  (See Memorandum of Decision.)   The defendant shall provide the documents.   The court also denies the request that the court prohibit inquiry as to the content or documents during the course of the deposition.

EXHIBIT 10 (4 parts)

The motion for protective order as to the transcript is denied with the exception that any medical information and portions of the personnel file from reports or tests will be redacted and not disclosed.  (See Memorandum of Decision as well as the order as to Exhibits 11, 12 and 13 below.)

This order does not permit the plaintiff to question at the deposition as to medical reports and the specific findings.   The plaintiff may inquire as to the general nature and the results as they impacted the decision of the state agency.

EXHIBIT 11 (PHD Exhibits)

The following pages of the exhibits are to be disclosed and the protective order is denied as to those exhibits.

Pages 1 through 9

Page 12

Pages 14 through 15

Page 39

Pages 40 through 42

Pages 43 through 44

Pages 53 through 62

Pages 64 through 68

Pages 74 through 77

Page 79

Pages 95 through 98 (policy 2nd copy)

Page 100 (second copy) and page 117 (same document)

Page 108

The court grants the protective order as to the following pages and as to the deposition testimony.   The plaintiff may not question as to medical reports but may inquire as to the general nature of requests as they impacted the decision of the state agency.

Pages 10 through 11

Page 13

Pages 16 through 26 (medical evaluations, et al.)

Pages 27 through 29

Pages 36 through 38

Pages 45 through 52

Page 63

Pages 69 through 73

Page 78

Page 80 through 82

Page 83 through 94

Page 99 (and copy)

Pages 101 through 102 (and 118-same as 102)

Pages 103 through 106

Pages 107 through 116

Pages 119 through 204

EXHIBIT 12 (pages 1 through 62)

The motion for a protective order is denied as to the documents pages 1 through 62 and the documents are to be provided.  (See Memorandum of Decision.)

EXHIBIT 13

The motion for protective order is denied as to the following document pages and the documents are to be provided.

Pages 1 through 44

Pages 62 through 63

Pages 66 through 175

Pages 176 through 182

Pages 183 through 189

Pages 190 through 198

Pages 199 through 211

The motion for protective order is granted as to the following document pages and the document and not subject to disclosure.

Pages 45 through 50

Pages 52 through 61

Pages 64 through 65

FOOTNOTES

FN1. The defendant filed an objection to the production on May 12, 2009, outlining objections to request numbers 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, and 18.  (Exhibit B.).  FN1. The defendant filed an objection to the production on May 12, 2009, outlining objections to request numbers 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, and 18.  (Exhibit B.)

FN2. The defendant also contends that Production request number 7 is protected by the National Data Bank which includes licensing documents..  FN2. The defendant also contends that Production request number 7 is protected by the National Data Bank which includes licensing documents.

FN3. General Stat. § 20-13e provides in part:  “[I]f the department determines that probable cause exists to issue a statement of charges, the entire record of such proceeding shall be public unless the department determines that the physician is an appropriate candidate for participation in a rehabilitation program in accordance with the provisions of Sections 19a-12a and 19a-12b.   The petition and all records of any physician determined to be eligible for participation in a rehabilitation program prior to June 11, 2007, shall remain confidential during the physician's participation and upon successful completion of the rehabilitation program, in accordance with the terms and conditions agreed upon by the physician and the department.”.  FN3. General Stat. § 20-13e provides in part:  “[I]f the department determines that probable cause exists to issue a statement of charges, the entire record of such proceeding shall be public unless the department determines that the physician is an appropriate candidate for participation in a rehabilitation program in accordance with the provisions of Sections 19a-12a and 19a-12b.   The petition and all records of any physician determined to be eligible for participation in a rehabilitation program prior to June 11, 2007, shall remain confidential during the physician's participation and upon successful completion of the rehabilitation program, in accordance with the terms and conditions agreed upon by the physician and the department.”

FN4. The court did question as to whether the medical reports and examinations that were part of the documents submitted in the privilege log would be protected pursuant to the HIPPA laws and while neither counsel could comment it is clear based upon the law discussed below and the concern that these medical records are not relevant to the instant claim that these records should not be disclosed..  FN4. The court did question as to whether the medical reports and examinations that were part of the documents submitted in the privilege log would be protected pursuant to the HIPPA laws and while neither counsel could comment it is clear based upon the law discussed below and the concern that these medical records are not relevant to the instant claim that these records should not be disclosed.

FN5. Even if the court was inclined to apply the statutory protections, the absence of any efforts prior to this motion to protect the documents and in fact utilizing the procedure of requesting the documents themselves convinces the court that the request is a little late, as one attorney stated, the cat is already out of the bag..  FN5. Even if the court was inclined to apply the statutory protections, the absence of any efforts prior to this motion to protect the documents and in fact utilizing the procedure of requesting the documents themselves convinces the court that the request is a little late, as one attorney stated, the cat is already out of the bag.

FN6. The court reviews the protections of HIPPA below but the defendant contends that there are medical examinations such as the evaluation by an internist, neurologist, and ear, nose and throat specialist in evaluating the condition of Dr. Zacharakos that are not disclosable.   The defendant contends that the exhibits in part at the hearing are the medical reports and records of Dr. Zacharakos..  FN6. The court reviews the protections of HIPPA below but the defendant contends that there are medical examinations such as the evaluation by an internist, neurologist, and ear, nose and throat specialist in evaluating the condition of Dr. Zacharakos that are not disclosable.   The defendant contends that the exhibits in part at the hearing are the medical reports and records of Dr. Zacharakos.

FN7. There are documents specifically related to the suspension of privileges within the documents at issue and for which the court denied the protective order..  FN7. There are documents specifically related to the suspension of privileges within the documents at issue and for which the court denied the protective order.

FN8. General Statute § 31-128f provides:  “No individually identifiable information contained in the personnel file or medical records of any employee shall be disclosed by an employer to any person or entity not employed by or affiliated with the employer without the written authorization of such employee except where the information is limited to the verification of dates of employment and the employee's title or position and wage or salary or where the disclosure is made:  (1) To a third party that maintains or prepares employment record or performs other employment-related services for the employer;  (2) pursuant to a lawfully issued administrative summons or judicial order, including a search warrant or subpoena, or in response to a government audit or investigation ․”.  FN8. General Statute § 31-128f provides:  “No individually identifiable information contained in the personnel file or medical records of any employee shall be disclosed by an employer to any person or entity not employed by or affiliated with the employer without the written authorization of such employee except where the information is limited to the verification of dates of employment and the employee's title or position and wage or salary or where the disclosure is made:  (1) To a third party that maintains or prepares employment record or performs other employment-related services for the employer;  (2) pursuant to a lawfully issued administrative summons or judicial order, including a search warrant or subpoena, or in response to a government audit or investigation ․”

FN9. The defendant provided for the court's review any applications that he has submitted after the date of the incident that gives rise to this legal action.   Exhibit 8. The court has reviewed in camera each of the documents the defendant contends are not subject to discovery..  FN9. The defendant provided for the court's review any applications that he has submitted after the date of the incident that gives rise to this legal action.   Exhibit 8. The court has reviewed in camera each of the documents the defendant contends are not subject to discovery.

FN10. Exhibit 1 (Part 2) contains specific information as part of the data bank which this court reviewed in camera and has granted the Protective Order as to specific documents..  FN10. Exhibit 1 (Part 2) contains specific information as part of the data bank which this court reviewed in camera and has granted the Protective Order as to specific documents.

FN11. The argument as to disclosure by the hospital may be viewed differently if the plaintiff provides a sufficient basis to determine that Norwalk Hospital did not comply with the federal law..  FN11. The argument as to disclosure by the hospital may be viewed differently if the plaintiff provides a sufficient basis to determine that Norwalk Hospital did not comply with the federal law.

FN12. The defendant has provided thirteen separate exhibits for an in cameral review.   Exhibits 10 (three parts) are the transcripts of the hearing before the Department of Public Health panel.   Additionally, the defendant has provided the statement of charges and the memorandum of decision, Exhibits 3 and 4..  FN12. The defendant has provided thirteen separate exhibits for an in cameral review.   Exhibits 10 (three parts) are the transcripts of the hearing before the Department of Public Health panel.   Additionally, the defendant has provided the statement of charges and the memorandum of decision, Exhibits 3 and 4.

FN13. See Schedule A as to a specific ruling on what documents are subject to disclosure and which are protected from disclosure..  FN13. See Schedule A as to a specific ruling on what documents are subject to disclosure and which are protected from disclosure.

FN14. During the argument counsel for the defendant indicated that Dr. Zacharakos has applied to Eastern Connecticut Health Network in 2007.   Additionally, a review in camera of the documents supplied by the defendant contain a number of documents that are post applications in Exhibit 8. A review of these documents leads the court to find that they are not likely to lead to discoverable information and the fact that he applied is not subject to disclosure.   However, the court does not preclude the plaintiff from inquiry during the course of the deposition as to the present employment of the defendant and the employment and hospital privileges he has acquired since the date of the incident..  FN14. During the argument counsel for the defendant indicated that Dr. Zacharakos has applied to Eastern Connecticut Health Network in 2007.   Additionally, a review in camera of the documents supplied by the defendant contain a number of documents that are post applications in Exhibit 8. A review of these documents leads the court to find that they are not likely to lead to discoverable information and the fact that he applied is not subject to disclosure.   However, the court does not preclude the plaintiff from inquiry during the course of the deposition as to the present employment of the defendant and the employment and hospital privileges he has acquired since the date of the incident.

Brazzel-Massaro, Barbara, J.