Malcolm Chalmers et al. v. Jeremiah Ormond et al. (2012)

MEMORANDUM OF DECISION

This discovery dispute involves the applicability of numerous medical/professional privileges created by federal regulation (42 CFR, Part 2) and by Connecticut General Statutes § 52–146c,d,e,f.   Plaintiffs seek to recover from the defendants for injury which Malcolm claims to have suffered as a result of an assault which defendants committed on him on January 30, 2009.

The defendant, Jeremiah Ormond, seek to discover Malcolm's psychiatric, psychological, educational and child protection history for a period of three years prior to the incident sued upon as well as for the period subsequent to the incident.

In paragraph 16 of their revised complaint the plaintiffs allege that the defendants caused Malcolm permanent injuries consisting of “head injuries/concussion, grand mal seizures secondary to head trauma with cognitive and psychological sequelae,” all of which caused him “pain and suffering, both mental and physical.”

The defendant argues that these allegations place directly in issue Malcolm's psychiatric/psychological and educational history and consequently he is entitled to discover Malcolm's history in these areas both before and after the incident.   The plaintiffs have presented the court with numerous psychological, psychiatric and educational records as well as records from the Connecticut Department of Children and Families accompanied by a privilege log for in camera review.   The court has examined these documents and notes that they also contain material relating to substance abuse.

It is well established in Connecticut that one who claims the protection of a discovery privilege bears the burden of proving that he is entitled to the privilege.  Babcock v. Bridgeport Hospital, 251 Conn. 790, 829 (1999), and this court's determination on the issue rests within its sound discretion.   Metropolitan Life Insurance Co. v. Aetna Casualty and Surety Co., 249 Conn. 36, 51 (1999).

Adjudication of this dispute breaks down into a multi-part exercise.   First, the court must decide whether the above mentioned allegations are broad enough to embrace psychological/psychiatric diagnosis and treatment records as well as educational records which include grade transcripts, attendance records, achievement/aptitude test results and individual education programs (IEPs).   If the answer to that question is affirmative then the court must determine whether any of the records fall within the ambit of 42 CFR, Part 2 of the Code of Federal Regulations which restricts disclosure of patient records relating to substance abuse, and if so, whether the plaintiff intends to offer “evidence pertaining to the content of the confidential communications.”   (42 CFR, Sec. 2.63)(a)(3).   Finally, based upon affirmative answers to the above questions, the court must determine under Connecticut law whether it is “more important to the interests of justice that the communications be disclosed than that the relationship between the person and the [treator] be protected.   See Sec. 52–146c(c)(2), 52–146d and 52–146f.¹

As stated above, the plaintiffs have made allegations that as a result of the altercation Malcolm has suffered “grand mal seizures with cognitive and psychological sequelae.”   Steadman's Medical Distrionary, 24th Ed.1984 at 605 defines a grand mal seizure as epilepsy.   Epilepsy is defined at P. 475 as follows:  “a chronic disorder characterized by paroxysmal attacks of brain dysfunction due to excessive neuronal discharge, and usually associated with some alteration of consciousness.   The attacks may remain confined to elementary or complex impairment of behavior or may progress to a generalized convulsion.”  (Emphasis added.)

Based on this definition Malcolm's behavior patterns both before and after the incident have direct relevance to the causal nexus of the injuries and thus proximate cause.

The allegation of cognitive sequelae includes a broad spectrum of medical conditions.   Bearing in mind that the term “sequelae” in this case refers to conditions following the injury, and the term “cognitive” has to do “perception, memory, judgment,” Webster's New World Dictionary 2d.   Coll. Ed. at 276, the plaintiff has opened up his entire psychiatric, psychological and educational history both before and after the incident.

Whether this material falls under 42 CFR, Part 2 depends upon whether the plaintiffs intend to offer evidence “pertaining to the content” of the materials.   The court finds that since Malcolm's behavior is at issue here (the defendant having denied in his answer that he initiated the altercation), the defendant will necessarily offer evidence that will be relevant to the plaintiff's behavior on that day.   The defendant is entitled to know whether that behavior might have been influenced in any measure by the consumption of drugs or alcohol.   In accordance with 42 CFR, Part 2, Sec. 2.64(d) the court finds that there are no other ways of obtaining the information, that the public interest and need for the disclosure outweigh the potential injury to the patient-physician relationship and any treatment services which Malcolm may have received.   The public interest promoted by the disclosure is the ability of our civil justice system to provide a remedy to the defendant which may absolve him from fault.   It is noted that this test is very similar to the test which the court is required to apply under the Connecticut statutory scheme which will be discussed more fully below.

The psychiatric/psychological records, clearly contain evidence of behaviors both before and after the incident which are relevant to both liability and damages.   In order to evaluate adequately the effect of disclosure upon the patient-treater relationship, it is necessary to assess the nature and breadth of that relationship, See Vitanza v. Upjohn Co., 257 Conn. 365, 391 (2001).   An examination of the proferred records discloses that Malcolm's contact with the treaters consistently was on a clinical basis.   In other words, there is no evidence that the plaintiff had developed an ongoing relationship with any of the clinicians who provided diagnosis and therapy for him.   Such a relationship was attenuated at best.   Thus, the interests of justice dictate that the defendant should not be deprived of his opportunity to attempt to demonstrate a connection between the behaviors concerning which the relationships were made and the liability and injuries alleged in this case.   The court finds that the interests of justice far outweigh the need to protect the plaintiff's relationship with his psychiatrist and psychologist.

The plaintiffs have asserted no privilege with respect to educational records but argue that the defendant's request for production of these records is overreaching.   The court agrees that production should be limited in time to the three years prior to the incident.   On the other hand, because Malcolm seeks compensation for “cognitive sequelae” all educational records subsequent to the incident seem reasonably calculated to lead to the discovery of admissible evidence because only then can the defendant make the necessary before and after comparison.   Educational records have been submitted without a privilege log.   They consist of disciplinary actions and IEP reports within the discoverable three-year period.   It is the court's understanding that grade transcripts, attendance records, test results and special education records have previously been provided to the defendant.   The court believes that all of these records are relevant to Malcolm's claims and will otherwise assist in the prosecution of the defense.  P.B. § 13–12.

Finally, the court has examined the records of the Department of Children's and Families (DCF) as to which the plaintiff asserts the same privileges as above.   In fact, these records are also protected from disclosure by G.S. § 46b–124 and P.B. §§ 32a–7 and 30a–8.   As the plaintiffs have pointed out, these records contain narratives which describe family conditions and dynamics which are not relevant to any of the conditions for which the plaintiffs have sued.   Moreover, these records are, in large part, duplicative of the documents which have already been ordered disclosed.   Accordingly, the court has designated for disclosure only those documents which it believes satisfy P.B. § 13–2 and for which there has been good cause shown.

The result of this analysis is that all documents contained on the privilege log as well as those that were submitted after the filing of the privilege log shall be disclosed except for those documents which the court has marked “no.”   All documents ordered disclosed shall be redacted as indicated by the court's deletions.   While the court has lined through many redactions, the remaining unredacted documents are painfully repetitious.   Therefore, plaintiffs' counsel shall review the remaining documents which have not been redacted and shall redact references to the following:  a) mother's mental and physical condition;  b) father's past history and current status;  c) Malcolm's physical and nutritional conditions.

In accordance with 42 CFR, Part 2, Sec. 2.64(e) disclosure is limited to counsel for the parties, any experts which may be retained by these parties and to the defendants themselves only when their counsel determine in good faith that disclosure of such records is necessary for the defense of the action.   Further disclosure shall not be made without prior approval of the court.

Pursuant to P.B. § 11–20A the court concludes that the sealing of these documents from further disclosure is necessary to preserve Malcolm's interest in maintaining the confidentiality provided by the above referenced statutes and that such interest overrides the public's interest in viewing these materials.

BY THE COURT

A. WILLIAM MOTTOLESE, J.T.R.

FOOTNOTES

FN1. Sec. 52–146c defines “communications” as including all records relating to diagnosis and treatment..  FN1. Sec. 52–146c defines “communications” as including all records relating to diagnosis and treatment.

Mottolese, A. William, J.T.R.