Robert Schibi v. Patrick Pollak et al. (2013)

RULING ON DEFENDANTS' MOTION TO COMPEL PRODUCTION (# 131)

I

FACTUAL BACKGROUND

The plaintiff, Robert Schibi, initiated this action by complaint filed on January 8, 2013.   The plaintiff alleges that he was the defendant's ¹ patient from September 24, 2009, through January 6, 2010.   He claims that the defendant was negligent in his care and treatment of the plaintiff, and that due to the defendant's negligence and/or carelessness, the plaintiff “has been impaired in his ability to pursue and enjoy life's activities.”

The defendant initially sought to compel the production of “complete medical records regarding the plaintiff's medical treatment both subsequent and prior to the issues that are the subject of the plaintiff's complaint.”   The court denied that motion on July 22, 2013.   Thereafter, on August 26, 2013, the defendant moved to compel the production of the plaintiff's mental health records.   This matter came before the court and was first heard on October 7, 2013.   Thereafter, on November 7, 2013, and again on November 18, 2013, the plaintiff produced certain mental health records to the court for in camera review.²  The court completed its review of those records, and heard from the parties at short calendar on December 9, 2013.   The motion to compel is granted, subject to the limitations set forth herein.

II

DISCUSSION

Practice Book §§ 13–2 and 13–9 permit a party to request the production of documents.   If the requested documents are not produced, a party may move for an order of compliance, and the court may “make such order as the ends of justice require.”  Practice Book § 13–14.

The defendant argues that the plaintiff, in the course of his deposition, testified that he has a history of mental health issues, that those issues are a component of his claim of disability, that the injuries he suffered at the hands of the defendant contributed to his depression and mental health issues, and that he discussed his dental issues with his therapist.

The defendant recognizes that communications with a treating social worker are normally confidential.  General Statutes § 52–146q(b).  However, the defendant relies on an exception to that section, General Statutes § 52–146q(c)(4), which provides in relevant part that “[c]ommunications and records may be disclosed in a civil proceeding in which the person introduces his mental condition as an element of his claim ․ For any disclosure under this subdivision, the court shall find that it is more important to the interests of justice that the communications and records be disclosed than that the relationship between the person and the social worker be protected.”   The defendant argues that the plaintiff's allegations that the defendant's conduct has “impaired [the plaintiff's] ability to pursue and enjoy life's activities,” serve to bring this issue within the exception to the general rule of confidentiality with regard to mental health records.

Specifically, the defendant argues that the complaint and the plaintiff's deposition both allege that the plaintiff's pre-existing mental health conditions have been affected by the defendant's conduct.³  The defendant also claims that the plaintiff, by answering the questions about his mental health history at the deposition, has already abandoned his right to keep his mental health records private.   Last, the defendant argues that any conversations that the plaintiff had with his social worker regarding his treatment by the defendant “are highly probative of material issues.”

In addition to seeking the plaintiff's mental health records, the defendant seeks the plaintiff's social security records.   He argues that there is no statutory privilege applicable to the production of those records.

The plaintiff objects to the motion to compel, arguing that there is no claim in this case that the defendant's negligence exacerbated the plaintiff's mental conditions.   He contends that alleging an “inability to perform normal activities” does not open up the plaintiff's entire medical history.

The defendant relies principally upon the decision reached in Flokos v. Pilot Corp. of America, Superior Court, judicial district of Milford, Docket No. CV–96–053428–S (July 22, 1997, Corradino, J.), in which the plaintiff testified at her deposition that “because of the injury she received, she became depressed and sought psychiatric counseling and treatment.   As a result of this depression she could not enjoy various life activities—skiing and gardening.”   The court noted that “it would appear that the condition contributed to and might still inhibit the plaintiff's ability to engage in and enjoy life's activities.”  Id. Based on the plaintiff's deposition testimony and representations made at the hearing on the motion to compel, Judge Corradino concluded that the plaintiff intended “to rely on the depression she claims resulted from the accident to support and enhance her claim for impairment of life's activities.   The purpose of this would be to increase her claim for money damages.”  Id. The court concluded that the foregoing situation warranted a limited disclosure of the plaintiff's patient records to the defendant.  Id. However, the court also indicated that it would not order disclosure if the plaintiff were to withdraw her claim for loss of enjoyment of life's activities.  Id.

The result in Flokos is not fully supportive of the defendant's argument because, in the present case, the plaintiff acknowledges his pre-existing mental health issues.   Unlike the plaintiff in Flokos, he does not contend that the defendant's conduct caused his depression.

The plaintiff relies on Irizarry v. M.L. Moskowitz & Co., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–08–5007501–S (January 12, 2012, Jennings, J.T.R.).   In Irizzary, the plaintiffs alleged a “loss of capacity for enjoyment of life” and the court noted that, when a plaintiff claims injuries broadly, such as by alleging an “inability to participate in his usual activities,” then the plaintiff “opens the door to further inquiry by the defendant into the plaintiff's past and present medical health/condition to test the veracity of that claim and the allegation that defendant's conduct is a proximate cause of the incapacity or inability to participate in or enjoy life's activities.”  (Internal quotation marks omitted.)  Id.

However, Judge Jennings noted that allowing some inquiry as to whether the plaintiff received some treatment in the past must be subject to some safeguards.  Id. Indeed, before permitting an “invasion of [the plaintiff's] privacy and trespass on sensitive and privileged material” inherent in a defendant's scrutiny of the plaintiff's medical history, a defendant must provide a justification for obtaining such information.  Id.;  see Gjika v. Cummings, Superior Court, judicial district of New Britain, Docket No. CV–10–6005867–S (July 12, 2011, Shortall, J.T.R.) (52 Conn. L. Rptr. 255).   In ruling on such motions to compel, “the court is obligated to take a reasoned and logical approach to the relevant contest between the parties.”  (Internal quotation marks omitted.)  Irizarry v. M.L. Moskowitz & Co., supra;  see Hackley v. Popp, Superior Court, judicial district of New Haven, Docket No. CV 07–5002241–S (November 28, 2008, Rubinow, J.) (46 Conn. L. Rptr. 745).   It is notable that the court in Irizzary ultimately required significant disclosure of the plaintiff's medical records to the defendant.

The plaintiff also relies on Carpenter v. Butler, Superior Court, judicial district of Middlesex, Docket No. CV–02–0099610–S (December 10, 2003, Silbert, J.) (36 Conn. L. Rptr. 178), in which the plaintiff alleged that, as a result of the defendant's negligence, he “was, and will in the future, be unable to carry out his normal activities and has suffered a decrease in the enjoyment of life's pleasures.”   The court concluded that this allegation did not sufficiently implicate the plaintiff's mental condition.  Id. However, Judge Silbert also noted that “[s]hould it be determined, in the course of further discovery in this case, that the plaintiff has actually put his mental health into issue, the court will revisit the defendants' request for access to these records ․” Id.

In the present case, as will be discussed in more detail, the plaintiff's deposition testimony appears to place his mental health in issue, and also appears to claim an exacerbation of an existing mental health condition.   Thus, the contingency that Judge Silbert contemplated in Carpenter exists in this case.

Although the plaintiff argues in his memorandum that he is not claiming that his mental conditions were exacerbated by the defendant's negligence, that argument is not consistent with the plaintiff's testimony at his deposition.   At his deposition, the plaintiff acknowledged having seen a therapist for the past eight years, and he acknowledged that he had addiction, depression, and anxiety issues.   Significantly, the plaintiff testified that the defendant's care and treatment affected his depression.   He testified that “[i]t's just more issues that I have to attend to.   I'm going to have to ․ have my mouth fixed ․ I've got to be in a dentist chair again for nine months ․ [I]t's going to be very painful ․ And the cost, the money, what it's going to cost, that's very overwhelming to me, you know.”   Pl.'s Dep. 101, August 13, 2013.   He also claimed that the defendant's conduct contributed to an increase in his medication.

The court is fully cognizant of the important purpose behind the statutory requirement that certain mental health records be kept confidential.   It is in the interest of the individual in particular, and society in general, that one who suffers from mental health issues seek help from a trained professional.   The disclosure of mental health treatment records is inconsistent with that goal.   On the other hand, the legislature also created an exception to the rule of confidentiality, and that exception applies when a plaintiff “introduces his mental condition as an element of his claim ․” General Statutes § 52–146q(c)(4).

The plaintiff's assertion that he is not alleging an exacerbation of a mental health condition is in direct conflict with his deposition testimony.   There is no way for the defendant to gauge the effect of his conduct on the plaintiff's mental condition without a full understanding of the nature of the plaintiff's health condition, both before and after the alleged negligent actions that occurred between September 24, 2009, and January 6, 2010.

The court concludes that the plaintiff has placed his mental health history at issue.   For the foregoing reasons, the court finds that the interests of justice in the disclosure of the communications and records outweigh the interest in completely protecting the relationship between the plaintiff and the social worker.   Thus, the court will allow limited disclosure of the plaintiff's mental health records to the defendant.   A copy of the records that have been produced to the court, in camera, will be disclosed to two individuals:  the defendant's counsel, who has filed an appearance in this case, and the defendant's mental health expert, if the defendant has retained such an expert.   There will be no further disclosure to any other individual, and the defendant's counsel is ordered to maintain the plaintiff's records in a sealed file.   He will not make any copies of the records, and any mental health expert retained by the defendant will review the records at the defendant's office.   The defendant will not file any of the plaintiff's mental health records with the court, nor will he otherwise make use of the plaintiff's mental health records in open court, without prior permission of the court.

This order will be stayed for thirty days from the date of the order so that the plaintiff, if he so chooses, can file an amended complaint that does not include the allegations, now appearing at paragraph ten of each count, to the effect that the defendant's negligence has impaired the plaintiff's ability to pursue and enjoy life's activities.   If such an amended complaint is filed, then the plaintiff need not disclose any mental health records to the defendant.   If no such amended complaint is filed, then this order will be in full force and effect.

Likewise, the defendant's additional request for an order compelling production of the plaintiff's social security disability file is granted.   However, any and all mental health records contained in that social security disability file are subject to the court's orders regarding the disclosure of any and all of the plaintiff's mental health records, as set forth, supra.

So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. The defendants are Patrick Pollak, DMD and Patrick Pollak, DMD, PC. Count one is addressed to Pollak, individually, and count two is addressed to Patrick Pollak, DMD, PC. The court will hereinafter refer to Pollak as “the defendant.”.  FN1. The defendants are Patrick Pollak, DMD and Patrick Pollak, DMD, PC. Count one is addressed to Pollak, individually, and count two is addressed to Patrick Pollak, DMD, PC. The court will hereinafter refer to Pollak as “the defendant.”

FN2. On December 9, 2013, the court placed those records in an envelope marked “Court Exhibit 1.” At this stage of the proceedings, Court Exhibit 1 is ordered sealed until further order of this court.  Practice Book § 11–20A(c);  General Statutes § 52–146q(b)..  FN2. On December 9, 2013, the court placed those records in an envelope marked “Court Exhibit 1.” At this stage of the proceedings, Court Exhibit 1 is ordered sealed until further order of this court.  Practice Book § 11–20A(c);  General Statutes § 52–146q(b).

FN3. In fact, the plaintiff's complaint does not allege exacerbation of a pre-exisiting mental health condition..  FN3. In fact, the plaintiff's complaint does not allege exacerbation of a pre-exisiting mental health condition.

Danaher, John A., J.