The Connecticut Supreme Court held in its opinion filed on January 11, 2018, “We conclude that a duty of confidentiality arises from the physician-patient relationship and that unauthorized disclosure of confidential information obtained in the course of that relationship gives rise to a cause of action sounding in tort against the health care provider, unless the disclosure is otherwise allowed by law.”

The Underlying Facts

The plaintiff began a personal relationship with a man in May 2004, which lasted until September, 2004.

In October 2004, the plaintiff instructed the defendant health care provider (her OB/GYN clinic) not to release her Medical Records to the man.

In March 2005, the plaintiff moved from Connecticut to Vermont, where she presently lives.

On May 31, 2005, the man filed paternity actions against the plaintiff in Connecticut and Vermont. Subsequently, the defendant received a subpoena instructing the custodian of its records to appear before the issuing attorney on July 8, 2005 at the New Haven Regional Children’s probate Court and to produce all Medical records pertaining to the plaintiff. The defendant did not alert the plaintiff of the subpoena, file a motion to quash it or appear in court. Rather, the defendant mailed a copy of the plaintiff’s medical file to the court around July 12, 2005.

In September 2005, the man informed the plaintiff by telephone that he reviewed the plaintiff’s medical records in the court file. On September 15, 2005, the plaintiff filed a motion to seal her medical file, which was granted. The plaintiff alleges that she suffered harassment and extortion threats from the man since he viewed her medical records.

The plaintiff sought to recover damages from the defendant health care provider for negligence and negligent infliction of emotional distress in connection with the defendant’s allegedly improper release of certain confidential medical records in responding to a subpoena issued in the course of a separate paternity action filed against the plaintiff. The defendant filed a motion for summary judgment arguing that it was entitled to judgment on the plaintiff’s negligence claims because Connecticut’s common law did not recognize a cause of action against health care providers for breach of the duty of confidentiality in the course of responding to a subpoena. The trial concluded that Connecticut had not yet recognized a common-law privilege for communications between physicians and their patients, and, accordingly, granted summary judgment in favor of the defendant on the plaintiff’s negligence claims. The plaintiff appealed.

The Connecticut Supreme Court held, in light of applicable principles of public policy, case law from other jurisdictions, relevant provisions of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), 42 U.S.C. § 1320d et seq., and the statute (§ 52-146o) recognizing an evidentiary privilege arising from the physician-patient relationship, a duty of confidentiality arises from the physician-patient relationship and that unauthorized disclosure of confidential information obtained in the course of that relationship for the purpose of treatment gives rise to a cause of action sounding in tort against the health care provider, unless the disclosure is otherwise allowed by law.

The Connecticut Supreme Court held that because there was a genuine issue of material fact as to whether the defendant violated that duty of confidentiality by the manner in which it disclosed the plaintiff’s medical records in response to the subpoena, the trial court improperly granted summary judgment for the defendant on the plaintiff’s negligence claims, and the defendant could not prevail on its claim that summary judgment should nevertheless be granted in this case because the plaintiff’s medical records were disclosed in response to a subpoena and § 52-146o does not require a patient’s consent for such a disclosure, as the mere existence of a subpoena does not preclude recovery for breach of confidentiality, the fact that a disclosure is in response to a subpoena does not necessarily ensure compliance with § 52-146o, and the defendant apparently complied neither with the face of the subpoena nor with the federal regulation (45 C.F.R. § 164.512 [e]) governing responses to such subpoenas.

Source Byrne v. Avery Center for Obstetrics and Gynecology, P.C., SC 19873.

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