Radzick v. Connecticut Children's Medical Center ( 2015 )

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PAUL RADZIK ET AL. v. CONNECTICUT CHILDREN’S
MEDICAL CENTER ET AL.
(SC 19267)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.*
Argued December 11, 2014—officially released June 30, 2015
Michael G. Rigg, with whom were Lorinda S. Coon
and, on the brief, Donna R. Zito and William J. Scully,
for the appellants (defendants).
Ruben Honik, pro hac vice, with whom were Leslie
Gold McPadden and, on the brief, Kevin Fay, pro hac
vice, for the appellees (plaintiffs).
Opinion
PER CURIAM. The dispositive issue in this certified
appeal is whether the trial court’s order granting the
motion of the plaintiff, Paul Radzik, individually and as
the administrator of the estate of his son, Jonathan
Radzik,1 to compel electronic discovery of the hard
drives of certain computers used by the defendant Fran-
cisco A. Sylvester constitutes a final judgment. The
defendants, Connecticut Children’s Medical Center
(hospital), Sylvester, and CCMC Faculty Practice Plan,
Inc., contending that the disclosure of certain informa-
tion on the computers would impair the privacy inter-
ests of nonparty patients, appealed to the Appellate
Court, which dismissed the appeal for lack of a final
judgment. Radzik v. Connecticut Children’s Medical
Center, 145 Conn. App. 668, 680, 682, 77 A.3d 823 (2013).
We subsequently granted the defendants’ petition for
certification to appeal, limited to the following issue:
‘‘Did the Appellate Court properly hold that the privacy
rights of nonparties were unaffected by the trial court’s
order requiring the disclosure of potentially protected
health information to a court-appointed discovery mas-
ter?’’ Radzik v. Connecticut Children’s Medical Center,
311 Conn. 901, 83 A.3d 603 (2014). The defendants claim
that: (1) the trial court’s discovery order constitutes a
final judgment and, therefore, is reviewable by this
court; and (2) the trial court abused its discretion in
issuing an order allowing the plaintiff to image the hard
drives of Sylvester’s home computer and office comput-
ers at the hospital and at Saint Francis Hospital and
Medical Center. We conclude that the discovery order
does not constitute a final judgment and, accordingly,
we affirm the judgment of the Appellate Court.
The plaintiff alleged in his amended complaint that
‘‘Sylvester, a board certified specialist in pediatrics who
as a servant, agent or employee of [the hospital] and
CCMC Faculty Practice Plan, Inc., treated Jonathan
Radzik, a minor, for Crohn’s disease. In the course of
such treatment, Sylvester prescribed the drug Remi-
cade, which is administered by intravenous infusion.
Jonathan Radzik underwent infusions of Remicade at
[the hospital] and under the care and supervision of
Sylvester from April, 2003 to October, 2005. In January,
2007, Jonathan Radzik died as a result of Hepatosplenic
T-Cell Lymphoma . . . .’’ Radzik v. Connecticut Chil-
dren’s Medical Center, supra, 145 Conn. App. 670. The
plaintiff further alleged in his amended complaint that
‘‘when Sylvester prescribed Remicade for Jonathan
Radzik, he was aware that: ‘[T]he manufacturer of Remi-
cade had circulated warnings to the medical community
that the use of Remicade had been known to cause fatal
T-cell lymphomas in patients who were also receiving
azathioprine . . . [and that] the type of lymphoma
most commonly associated with Remicade treatment
was an aggressive and typically fatal variant’ and, fur-
ther, that he had failed to obtain parental permission
to prescribe Remicade for Jonathan Radzik.’’ Id.
The plaintiff filed various motions to compel elec-
tronic discovery with the goal of determining what Syl-
vester knew about Remicade and when he knew it. Id.,
671–74. On July 19, 2012, the court issued a ruling that
the plaintiff would be permitted to image the hard drives
of the three computers used by Sylvester and that the
contents would then be forensically examined. Id., 674–
75. In order to protect the privacy of patients and Sylves-
ter’s family, the court ordered that anyone involved in
the imaging or investigation of the hard drives would
have to sign a protective order drafted by the parties.
Id., 675. The court further ordered that an independent
forensic consultant would complete the forensic inves-
tigation and that a discovery master would be appointed
to oversee the forensic consultant and to report the
results of the investigation to the court. Id.
The defendants appealed from the trial court’s order
to the Appellate Court and that court concluded that
the order did not constitute a final judgment because
it was not directed at nonparties, because the ‘‘issues
at hand involve[d] a discovery dispute between parties
in ongoing litigation and [did] not constitute a separate
and distinct proceeding,’’; id., 680; and ‘‘the order [did]
not provide for dissemination or publication of the
forensic imaging [and, therefore], the rights of the
defendants [were] not irretrievably lost . . . .’’ Id., 682.
On appeal to this court, the defendants claim that the
order constitutes a final judgment because ‘‘once the
private information of nonparty patients is disclosed to
the discovery master, patient confidentiality is lost.’’
During oral argument before this court, the plaintiff
represented that the trial court’s order provided the
defendants with the ‘‘absolute right’’ to redact confiden-
tial information from the records that would be viewed
in the course of the forensic investigation prior to their
disclosure to anyone in the case, including the discovery
master. On February 11, 2015, pursuant to Practice
Book § 60-2, this court issued an order remanding the
case to the trial court to clarify whether its order did
provide the defendants with that right. This court’s
order further provided that if the trial court concluded
that it had not issued such order, but deemed the condi-
tions appropriate to do so in this case, the trial court
could issue that order.
On March 4, 2015, the trial court responded to this
court’s February 11, 2015 order. The trial court noted
that its ruling had not provided the defendants with an
absolute right to redact confidential information, but
acknowledged that such a protection would be appro-
priate in this situation. The court stated that it would
allow the defendants that opportunity and outlined pro-
cedures that defense counsel should take in redacting
all patient identifying information from the documents
prior to providing them to the discovery master.
‘‘A determination regarding . . . subject matter
jurisdiction is a question of law . . . [and, therefore]
our review is plenary.’’ (Internal quotation marks omit-
ted.) Niro v. Niro, 314 Conn. 62, 67, 100 A.3d 801 (2014).
‘‘The general rule is that orders relating to discovery
do not constitute a final judgment and are not appeal-
able both because their initial determination does not
so conclude the rights of the appealing party that further
proceedings cannot affect those rights . . . and
because . . . their import is fully apprehended only
after trial is concluded.’’ (Citations omitted.) State v.
Grotton, 180 Conn. 290, 292, 429 A.2d 871 (1980). ‘‘[W]e
have stated that, although [t]he subject matter jurisdic-
tion of our appellate courts is limited by statute to
appeals from final judgments . . . [t]he legislature may
. . . deem otherwise interlocutory actions of the trial
courts to be final judgments, as it has done by statute
in limited circumstances. . . . Alternatively, the courts
may deem interlocutory orders or rulings to have the
attributes of a final judgment if they fit within either
of the two prongs of the test set forth in State v. Curcio,
[191 Conn. 27, 31, 463 A.2d 566 (1983)]. . . . Under
Curcio, the landmark case in the refinement of final
judgment jurisprudence . . . interlocutory orders are
immediately appealable if the order or ruling (1) termi-
nates a separate and distinct proceeding or (2) so con-
cludes the rights of the parties that further proceedings
cannot affect them.’’ (Internal quotation marks omit-
ted.) Niro v. Niro, supra, 67–68. ‘‘Unless an order can
satisfy one of these two prongs, the lack of a final
judgment is a jurisdictional defect that [necessitates]
. . . dismissal of the appeal.’’ (Internal quotation marks
omitted.) BNY Western Trust v. Roman, 295 Conn. 194,
202, 990 A.2d 853 (2010).
In the present case, the trial court issued its discovery
order and the defendants filed an interlocutory appeal.
Discovery orders generally do not satisfy either Curcio
exception, absent extraordinary circumstances. See,
e.g., Woodbury Knoll, LLC v. Shipman & Goodwin,
LLP, 305 Conn. 750, 757–58, 48 A.3d 16 (2012); Abreu
v. Leone, 291 Conn. 332, 344, 968 A.2d 385 (2009).
Although the defendants contend that the first prong
of Curcio is satisfied because the privacy interests of
patients would be irreparably harmed by the computer
searches, in light of the additional protections added
to the discovery order in the trial court’s March 4, 2015
response to this court’s order, we are not persuaded
that any such harm is likely to occur. The discovery
order in the present case neither terminates a separate
and distinct proceeding nor so concludes the rights
of the parties such that additional proceedings cannot
affect them. State v. Curcio, supra, 191 Conn. 31. We
conclude, therefore, that the trial court’s order does
not constitute a final judgment.
The judgment of the Appellate Court is affirmed.
* Justice Zarella was a member of the panel when this case was argued
before this court. Subsequently, Justice Zarella was disqualified from the
case and did not participate in the consideration or decision of this case.
1
For convenience, we refer to Paul Radzik in both his capacities as
the plaintiff.