EMLIA PHAM v. CYRIL PHAM DOCKET NO. HHD-FA20-6134979-S Superior Court of Connecticut, JUDICIAL DISTRICT OF HARTFORD. AT HARTFORD January 27, 2023 Klau, Daniel J., Judge RULING ON MOTION TO QUASH (#178) AND OBJECTION (#193) UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. *1 The plaintiff (Wife) commenced this dissolution action in November 2020. The parties have two children, ages fourteen and eleven. Custody issues are in dispute. The defendant (Husband) has served a subpoena on St. Francis Hospital seeking the Wife's treatment records.[1] Before the court are: (1) the Wife's motion to quash the subpoena and for a protective order, and (2) the Husband's objection. The Wife contends that the records are privileged from disclosure under General Statutes § 52-146o. The statute limits the disclosure by a physician or hospital of “(1) any communication made to him or her by, or any information obtained by him or her from, a patient or the conservator or guardian of a patient with respect to any actual or supposed physical or mental disease or disorder, or (2) any information obtained by personal examination of a patient, unless the patient or that patient's authorized representative explicitly consents to such disclosure.” (Emphasis supplied.) Significantly, the statute also provides that records may be disclosed without a patient's consent pursuant to “any statute or regulation of any state agency or the rules of court.” (Emphasis supplied) General Statutes § 52-146o (b) (1). For the following reasons, the motion to quash is denied and the objection is sustained. I DISCUSSION A The Husband represents that the Wife “experienced significant medical issues starting in 2021, including a lengthy hospital stay shrouded in secrecy.” Defendant's Objection to Plaintiff's Motion to Quash and for Protective Order (dated July 15, 2022). The Husband, through counsel, amplified these statements during a hearing on the motion to quash on November 23, 2022. The Husband argues that disclosure of the hospital records will reveal relevant information about the Wife's mental and physical health, which are factors that a court may consider when crafting child custody orders. General Statutes § 46b-56 (c) (a court may consider “the mental and physical health of all individuals involved” when making or modifying a child custody order). There is no legitimate dispute that the Husband's subpoena is reasonably calculated to lead to the discovery of admissible evidence, which is the legal standard applicable to discovery requests. Practice Book § 13-2. But that is the beginning, not the end, of the relevant legal analysis. The question is whether General Statutes § 52-146o precludes the disclosure of the requested hospital records without the Wife's consent, even if they meet the standard for discovery. The General Assembly enacted § 52-146o in 1990 to “create[ ] a broad physician-patient privilege.” Edelstein v. Dept. of Public Health and Addiction Services, 240 Conn. 658, 662, 692 A.2d 803 (1997). Subsection (a) provides: *2 Except as provided in sections 52-146c to 52-146j, inclusive, sections 52-146p, 52-146q and 52-146s, and subsection (b) of this section, in any civil action or any proceeding preliminary thereto or in any probate, legislative or administrative proceeding, a physician or surgeon, licensed pursuant to section 20-9, or other licensed health care provider, shall not disclose (1) any communication made to him or her by, or any information obtained by him or her from, a patient or the conservator or guardian of a patient with respect to any actual or supposed physical or mental disease or disorder, or (2) any information obtained by personal examination of a patient, unless the patient or that patient's authorized representative explicitly consents to such disclosure. General Statutes § 52-146o (a). There is no dispute that St. Francis hospital is a “licensed health care provider,” nor is there any dispute that the records the Husband has subpoenaed are the types of records to which the statute applies. Because the Wife does not consent to disclosure of the records, the court must consider subsection (b) (1) of the statute: “Consent of the patient or the patient's authorized representative shall not be required for the disclosure of such communication or information (1) pursuant to any statute or regulation of any state agency or the rules of court.” General Statutes § 52-146o (b). The Husband contends that “rules of court” include the discovery rules in Chapter 13 of the Practice Book. The Wife disagrees. She argues that “rules of court” must be narrowly construed. She suggested during oral argument that if a court has concerns about the mental health of a party in a divorce or custody action, the court could order the party to undergo a mental health evaluation. Practice Book § 25-60A. However, she maintains that the court lacks the authority to order the disclosure of a party's medical and hospital records in the context of a custody dispute. The court is not persuaded. B Section 52-146o is part of a series of statutory privileges concerning mental and physical health-related records. In 1961, the General Assembly enacted a statutory privilege for records of communications between patients and psychiatrists. General Statutes §§ 52-146d to 52-146i. In 1969, the legislature enacted a similar privilege for records of patient-psychologist communications. General Statutes § 52-146c. Significantly, each of these statutes sets forth specific circumstances under which the disclosure of privileged records is permitted without a patient's consent. General Statutes § 52-146c (c) (when consent not required for disclosure of patient-psychologist communications); General Statutes § 52-146f (when consent not required for disclosure of patient-psychiatrist communications). The relevant portions of these statutes are reproduced in the addendum to this opinion. The General Assembly's targeted approach to privileging communications with specific types of mental health care providers meant that other types of records—such as hospital records and records of communications between patients and doctors who were not psychiatrists or psychologists—initially lacked statutory protection. To address this statutory lacunae, the General Assembly enacted § 52-146o to protect patient-physician communications generally. But § 52-146o does not supplant the pre-existing statutory privileges. To the contrary, § 52-146o expressly cross-references those statutes. General Statutes § 52-146o (a) (“Except as provided in sections 52-146c to 52-146j, inclusive, sections 52-146p, 52-146q and 52-146s, and subsection (b) of this section.. ..”) The plain language of § 52-146o compels the court to conclude that when the General Assembly enacted the statute, it intended the terms of the cross-referenced statutes to continue to govern the disclosure of records of communications governed by the cross-referenced statute. Thus, when a party seeks the disclosure of records of communications between a patient and a psychiatrist, § 52-146f governs the specific circumstances under which such records may be disclosed without the patient's consent. Similarly, § 52-146c (c) controls the non-consensual disclosure of records of communications between the patient and psychologist. However, if the records at issue are not within the scope of a cross-referenced statute, § 52-146o (b) alone governs the circumstances under which disclosure is permitted without a patient's consent. C *3 As noted, the sole statutory privilege that the Wife has asserted in support of her motion to quash is § 52-146o. She does not contend, and the court does not assume, that the requested hospital records include records of communications with a hospital psychiatrist or psychologist. Accordingly, the court limits its ruling to deciding whether § 52-146o (b) (1) authorizes the disclosure of the hospital records without the Wife's consent pursuant to the rules of court. The Supreme Court addressed this statutory provision in Byrne v. Avery Center for Obstetrics and Gynecology, P.C., 327 Conn. 540, 175 A.3d 1 (2018) (hereinafter “Byrne”). The defendant in Byrne had released medical records pursuant to a subpoena which did not comply with relevant provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The plaintiff asked the Supreme Court to recognize a new common law tort for breach of the duty of confidentiality in a patient-physician relationship. In doing so, the court discussed § 52-146o (b). “The language of § 52-146o (b) demonstrates that the disclosure must comply with statute and regulations or rules of court. Although we recognize, as other jurisdictions do, that the common-law duty of confidentiality is not absolute, we cannot conclude that any disclosure of medical records in response to a subpoena complies with § 52-146o (b) because a subpoena, without a court order, is not a statute, regulation of a state agency, or rule of court.” (Emphasis supplied.) The italicized text may be read to mean that a court order is an absolutely essential requirement for a disclosure of privileged records under § 52-146o (b) without a party's consent. However, the Supreme Court proceeded to explain that the defect with the defendant's disclosure was that it violated HIPAA. “The regulations promulgated under HIPAA require specific steps prior to making any disclosure of protected health information pursuant to a subpoena. Section 164.512 (e) (1) of title 45 of the Code of Federal Regulations provides in relevant part: ‘A covered entity may disclose protected health information in the course of any judicial or administrative proceeding ... (ii) [i]n response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal....’ The regulation, however, allows for such a disclosure only if the patient has received adequate notice of the request or a qualified protective order has been sought. See 45 C.F.R. § 164.512 (e); see also 45 C.F.R. § 164.512 (e) (1) (iv). The defendant's own admissions establish that it did not comply with this regulation when it responded to the subpoena in the present case.” (Emphasis supplied.) The court understands this discussion in Byrne to mean that § 52-146o permits a disclosure of records protected under the statute if a subpoena complies with all relevant HIPAA regulations—and if the disclosure is otherwise warranted under the rules of discovery. HIPAA regulations permit disclosure without a court order under some circumstances, such as where the time for the party to object to the subpoena by filing a motion to quash has expired, or whether the court has denied a motion to quash. 45 C.F.R. § 164.512 (e). The court need not resolve this ambiguity in Byrne, however, because it intends to issue a court order authorizing disclosure. In sum, nothing in Byrne, or in the plain language of § 52-146o (b) (1), indicates that “rules of court” is limited the way the Wife asserts. Whereas the statutory privileges applicable to records of communications with psychiatrists and psychologists set forth specific, limited grounds for disclosure without a party's consent, § 52-146o (b) (1) authorizes the disclosure pursuant to the rules of court. Those rules include the discovery rules in Chapter 13 of the Practice Book. *4 The Wife also relies on two cases to support her argument that § 52-146o bars the disclosure of her hospital records without her consent. The first is Cabrera v. Cabrera, 23 Conn. App. 330, 580 A.2d 1227 (1990); the second is Fleischmann v. Fleischman, 2015 WL 3798151, No. FA144072698 (Hartford Judicial District, May 28, 2015). Those decisions, however, addressed the disclosure of records of communications between a party and a psychiatrist or psychologist, which records are privileged under § 52-146c and§ 52-146d. The decisions offer no legal guidance as to the meaning of “rules of court” in § 52-146o (b) (1). II CONCLUSION The Husband has presented a good faith basis for requesting the records of the Wife's treatment at St. Francis hospital for the period January 1, 2021 to the present. The subpoena does not constitute a “fishing expedition.” The records requested are reasonably calculated to lead to the discovery of admissible evidence. WHEREFORE, the Plaintiff's motion to quash and for a protective order (#178) is DENIED. The Defendant's Objection (#193) is SUSTAINED. The court's prior order (#178.01) is VACATED. The Defendant shall prepare and submit for the court's signature a form of a qualified protective order consistent with HIPAA, 45 C.F.R. § 164.512 (e). SO ORDERED. ADDENDUM 1. General Statutes § 52-146c (c) provides: “Consent of the person shall not be required for the disclosure of such person's communications [with a psychologist]: (1) If a judge finds that any person after having been informed that the communications would not be privileged, has made the communications to a psychologist in the course of a psychological examination ordered by the court, provided the communications shall be admissible only on issues involving the person's psychological condition; (2) If, in a civil proceeding, a person introduces his psychological condition as an element of his claim or defense or, after a person's death, his condition is introduced by a party claiming or defending through or as a beneficiary of the person, and the judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between the person and psychologist be protected; (3) If the psychologist believes in good faith that there is risk of imminent personal injury to the person or to other individuals or risk of imminent injury to the property of other individuals; (4) If child abuse, abuse of an elderly individual or abuse of an individual who is disabled or incompetent is known or in good faith suspected; (5) If a psychologist makes a claim for collection of fees for services rendered, the name and address of the person and the amount of the fees may be disclosed to individuals or agencies involved in such collection, provided notification that such disclosure will be made is sent, in writing, to the person not less than thirty days prior to such disclosure. In cases where a dispute arises over the fees or claims or where additional information is needed to substantiate the claim, the disclosure of further information shall be limited to the following: (A) That the person was in fact receiving psychological services, (B) the dates of such services, and (C) a general description of the types of services; or (6) If the communications are disclosed to a member of the immediate family or legal representative of the victim of a homicide committed by the person where such person has, on or after July 1, 1989, been found not guilty of such offense by reason of mental disease or defect pursuant to section 53a-13, provided such family member or legal representative requests the disclosure of such communications not later than six years after such finding, and provided further, such communications shall only be available during the pendency of, and for use in, a civil action relating to such person found not guilty pursuant to section 53a-13.” *5 2. General Statutes § 52-146f provides: “Consent of the patient shall not be required for the disclosure or transmission of communications or records of the patient in the following situations as specifically limited: (1) Communications or records may be disclosed to other persons engaged in the diagnosis or treatment of the patient or may be transmitted to another mental health facility to which the patient is admitted for diagnosis or treatment if the psychiatric mental health provider in possession of the communications or records determines that the disclosure or transmission is needed to accomplish the objectives of diagnosis or treatment. The patient shall be informed that the communications or records will be so disclosed or transmitted. For purposes of this subsection, persons in professional training are to be considered as engaged in the diagnosis or treatment of the patients. (2) Communications or records may be disclosed when the psychiatric mental health provider determines that there is substantial risk of imminent physical injury by the patient to himself or others or when a psychiatric mental health provider, in the course of diagnosis or treatment of the patient, finds it necessary to disclose the communications or records for the purpose of placing the patient in a mental health facility, by certification, commitment or otherwise, provided the provisions of sections 52-146d to 52-146j, inclusive, shall continue in effect after the patient is in the facility. (3) Except as provided in section 17b-225, the name, address and fees for psychiatric services to a patient may be disclosed to individuals or agencies involved in the collection of fees for such services. In cases where a dispute arises over the fees or claims or where additional information is needed to substantiate the fee or claim, the disclosure of further information shall be limited to the following: (A) That the person was in fact a patient; (B) the diagnosis; (C) the dates and duration of treatment; and (D) a general description of the treatment, which shall include evidence that a treatment plan exists and has been carried out and evidence to substantiate the necessity for admission and length of stay in a health care institution or facility. If further information is required, the party seeking the information shall proceed in the same manner provided for hospital patients in section 4-105. (4) Communications made to or records made by a psychiatric mental health provider in the course of a psychiatric examination ordered by a court or made in connection with the application for the appointment of a conservator by the Probate Court for good cause shown may be disclosed at judicial or administrative proceedings in which the patient is a party, or in which the question of his incompetence because of mental illness is an issue, or in appropriate pretrial proceedings, provided the court finds that the patient has been informed before making the communications that any communications will not be confidential and provided the communications shall be admissible only on issues involving the patient's mental condition. (5) Communications or records may be disclosed in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense, or, after the patient's death, when his condition is introduced by a party claiming or defending through or as a beneficiary of the patient and the court or judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between patient and psychiatric mental health provider be protected. (6) Communications or records may be disclosed to (A) the Commissioner of Public Health in connection with any inspection, investigation or examination of an institution, as defined in subsection (a) of section 19a-490, authorized under section 19a-498, or (B) the Commissioner of Mental Health and Addiction Services in connection with any inspection, investigation or examination authorized under subsection (f) of section 17a-451. (7) Communications or records may be disclosed to a member of the immediate family or legal representative of the victim of a homicide committed by the patient where such patient has, on or after July 1, 1989, been found not guilty of such offense by reason of mental disease or defect pursuant to section 53a-13, provided such family member or legal representative requests the disclosure of such communications or records not later than six years after such finding, and provided further, such communications shall only be available during the pendency of, and for use in, a civil action relating to such person found not guilty pursuant to section 53a-13. (8) If a provider of behavioral health services that contracts with the Department of Mental Health and Addiction Services requests payment, the name and address of the person, a general description of the types of services provided, and the amount requested shall be disclosed to the department, provided notification that such disclosure will be made is sent, in writing, to the person at the earliest opportunity prior to such disclosure. In cases where a dispute arises over the fees or claims, or where additional information is needed to substantiate the claim, the disclosure of further information shall be limited to additional information necessary to clarify only the following: (A) That the person in fact received the behavioral health services in question, (B) the dates of such services, and (C) a general description of the types of services. Information the department receives pursuant to this subdivision shall be disclosed only to federal or state auditors and only as necessary for the purposes of auditing. Footnotes [1] More particularly, the subpoena was served on the Keeper of Records for Trinity Health of New England, Saint Francis Hospital, Mt. Sinai Rehabilitation Hospital. The subpoena requests the production of “all medical and/or hospital records for Emilia Pham ... including, but not limited to all records concerning the admission, treatment, medical condition, and post-hospitalization of Emilia Pham” for the period January 1, 2021 to the present.