Commissioner of Public Health v. Colandrea
Commissioner of Public Health v. Colandrea
Opinion
*256 The defendant, Anthony P. Colandrea, appeals from the judgment of the trial court granting the petition to enforce a subpoena duces tecum filed by the plaintiff, the Commissioner of Public Health, 1 requesting the production of certain patient records from the defendant. The defendant claims that the plaintiff failed to make a sufficient factual showing that the subpoenaed records were related to a complaint under investigation, as required by General Statutes § 52-146 o . 2 We affirm the judgment of the trial court.
The following facts and procedural history are relevant to the defendant's claim. The defendant is a dentist licensed by the Department of Public Health (department). On August 27, 2014, the department opened an investigation into allegations of fraudulent billing practices by the defendant. The investigation was prompted by a referral from Verisk Health Management (Verisk), a company that contracted with United Healthcare, a health insurer, to audit various health care providers. After a review of the defendant's billing to United Healthcare, Verisk made numerous attempts to obtain *257 patient records from the defendant. The defendant refused to comply with Verisk's requests for records, and Verisk filed a complaint with the Office of the Attorney General. The Office of the Attorney General referred the complaint to the department, which commenced the investigation at issue.
As part of its investigation, on November 16, 2015, the department, pursuant to its authority under General Statutes § 19a-14(a)(10), 3 issued a subpoena duces *473 tecum to the defendant, instructing him to produce "[c]omplete copies of all records (including but not limited to all progress notes, x-rays, images, and billing records)" for thirty-one patients. The defendant failed to comply with the department's subpoena. On December 10, 2015, the plaintiff, pursuant to § 19a-14(a)(10), 4 filed a petition for enforcement of the subpoena and an application for an order to show cause. The defendant filed an objection to the petition for enforcement.
The court held a hearing on January 25, 2016. At the hearing, the defendant argued that § 52-146 o , 5 the *258 physician-patient privilege statute, prohibited him from disclosing the subpoenaed records absent patient consent. The defendant acknowledged that, pursuant to § 52-146 o (b)(3), 6 the department may subpoena records without patient consent, but maintained that the plaintiff failed to meet the requirements for this statutory exception because the subpoena contained "no indication as to how [the subpoenaed records] relate to the complaint or investigation." The defendant claimed that, at that time, he did not "even know what the investigation is against him."
In response to the defendant's objection, the plaintiff presented the testimony of Kathleen W. Boulware, a public health services manager in the department's practitioner investigation unit. Boulware testified, in relevant part, that (1) Verisk was hired by United Healthcare to audit its records to determine if there was any fraudulent activity occurring; (2) Verisk had attempted to obtain records directly from the defendant as part of its investigation; (3) after multiple failed attempts to obtain records directly from the defendant, Verisk sent a complaint to the Office of the Attorney General; (4) Verisk provided a list of selected defendant's patients with the complaint; (5) the department began investigating the defendant when it received the complaint from the Office of the Attorney General; (6) the department first attempted to request the records from the defendant by letter, which was standard practice; (7) after failing to obtain the records by letter, the department issued a subpoena for approximately 50 percent of the records identified by Verisk; and (8) it *259 *474 is standard practice for the department to issue subpoenas to dental professionals to review patient records for possible fraudulent activity. The defendant's counsel was given the opportunity to cross-examine Boulware but declined to do so.
The trial court, relying on
Edelstein
v.
Dept. of Public Health & Addiction Services
,
The defendant claims that the plaintiff failed to make a sufficient factual showing that the subpoenaed records were related to a complaint under investigation, as required by § 52-146 o . Specifically, he argues that "[t]he [plaintiff] did not demonstrate and the trial court did not find that the records sought by [the department] in this case are reasonably related to a complaint as required by ... § 52-146 o (b)(3)." He contends that the plaintiff was required to make a showing as to the nature of his investigation by presenting evidence as to what "the suspected 'fraudulent activity' actually was" and "how the records [he] was seeking would shed any light on the unspecified 'fraudulent activity.' " We disagree.
We begin by setting forth the standard of review and legal principles that guide our analysis. Where a party asserts that the facts found were insufficient to support the trial court's legal conclusion, the issue presents a mixed question of law and fact to which we apply plenary review.
Centrix Management Co., LLC
v.
Valencia
,
Section 52-146 o (a) prohibits physicians from disclosing patient records without patient consent. Subsection (b) provides four exceptions to that rule. As relevant here, the statute does not require consent for the release of medical records "to the Commissioner of Public Health for records of a patient of a physician, surgeon or health care provider in connection with an investigation of a complaint, if such records are related to the complaint ...." General Statutes § 52-146 o (b)(3).
Our Supreme Court's decision in
Edelstein
v.
Dept. of Public Health & Addiction Services
, supra,
As in Edelstein , the plaintiff in the present case has proven that the subpoenaed records fell within the exception of § 52-146 o (b)(3). 8 The facts of this case establish a clear connection between the complaint under investigation and the subpoenaed records. The subpoena was written on department letterhead, specifically, that of the practitioner licensing and investigations section of the healthcare quality and safety branch of the department. The subpoena stated that it was being issued pursuant to § 19a-14(a)(10), a statute that explicitly gives the department the authority to issue subpoenas in connection with investigations. See footnote 3 of this opinion. Boulware testified that the defendant was under investigation for fraudulent billing practices, an investigation prompted by a referral from the Office of the Attorney General of a complaint by *262 Verisk, and that the department subpoenaed only the defendant's patient records that related to that investigation. At the hearing, the trial court offered the defendant's counsel an opportunity to challenge this evidence through cross-examination of Boulware, and the defendant declined to do so. Accordingly, from the evidence presented, we are not persuaded by the defendant's claim that the plaintiff "failed completely to enunciate any relationship" between the subpoenaed records and the complaint. On the basis of this evidence, we conclude that the plaintiff satisfied the requirements of § 52-146 o (b)(3). 9
The judgment is affirmed.
The Commissioner of Public Health acts on behalf of the Department of Public Health, and references in this opinion to the department include the commissioner.
The defendant also claims that "the trial court ignored the statutory language, legislative history, and controlling precedent that require the [the plaintiff] to establish that records it is seeking pursuant to ... General Statutes § 52-146 o (b) are reasonably related to a complaint under investigation." We have reviewed this claim and conclude that both issues, as presented by the defendant, conflate into a single issue relevant to this appeal: whether there was a sufficient factual showing that the records sought were related to a complaint under investigation, as required by the statute.
General Statutes § 19a-14(a) provides in relevant part: "The department shall ... (10) Conduct any necessary review, inspection or investigation regarding qualifications of applicants for licenses or certificates, possible violations of statutes or regulations, and disciplinary matters. In connection with any investigation, the Commissioner of Public Health or the commissioner's authorized agent may administer oaths, issue subpoenas, compel testimony and order the production of books, records and documents. ..."
General Statutes § 19a-14(a)(10) provides in relevant part: "If any person refuses to appear, to testify or to produce any book, record or document when so ordered, a judge of the Superior Court may make such order as may be appropriate to aid in the enforcement of this section ...."
General Statutes § 52-146 o (a) provides in relevant part: "Except as provided ... 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 § 52-146 o (b) provides in relevant part: "Consent of the patient or the patient's authorized representative shall not be required for the disclosure of such communication or information ... (3) to the Commissioner of Public Health for records of a patient of a physician, surgeon or health care provider in connection with an investigation of a complaint, if such records are related to the complaint ...."
The defendant also relies on
Lieb
v.
Dept. of Health Services
,
The defendant argues that "the trial court did not find that the records sought by [the department] in this case are reasonably related to a complaint as required by ... § 52-146
o
(b)(3)." We disagree. Although the court did not employ the exception's precise phrase, "related to the complaint," it concluded that "[t]he evidence submitted by the department supports the request for the records which are the subject of the subpoena." Implicit in that ruling is a finding that the plaintiff had satisfied the requirements of § 52-146
o
(b)(3). See
Rene Dry Wall Co., Inc
. v.
Strawberry Hill Associates
,
The defendant argues that
Edelstein
requires that the plaintiff "make a showing [of] the nature of [his] investigation," which includes an articulation of the specific allegations against the defendant that are being investigated. We disagree.
Edelstein
did not enunciate such a specificity requirement. Our Supreme Court concluded, in relevant part, that § 52-146
o
(b)(3)"must be accepted as a declaration of the legislature's original intent that the department may obtain access to medical records containing otherwise privileged communications when such access is sought in connection with the investigation of a complaint against a physician, and when the records are related to that complaint."
Edelstein
v.
Dept. of Public Health & Addiction Services
, supra,
Reference
- Full Case Name
- COMMISSIONER OF PUBLIC HEALTH v. Anthony P. COLANDREA
- Cited By
- 4 cases
- Status
- Published