Couture v. Holt ( 2017 )

Couture v. Holt, No. 282-3-17 Cncv (Mello, J., Oct. 27, 2017).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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VERMONT SUPERIOR COURT
CHITTENDEN UNIT
CIVIL DIVISION
│
DARREN COUTURE, │
Plaintiff │
│
v. │ Docket No. 282-3-17 Cncv
│
DR. JOHN HOLT, │
Defendant │
│
RULING ON DEFENDANT’S MOTION TO DISMISS
Plaintiff Darren Couture brings this medical malpractice action against Dr. John
Holt, a forensic psychologist who rendered an opinion for Couture in connection with a
parole revocation proceeding. Couture claims that Holt improperly: (1) offered an opinion
despite having no personal contact with Couture, and (2) provided an overview of
Couture’s case to the Department of Corrections in the process of formulating his opinion
without permission from Couture or his counsel at the time. Couture claims that Holt’s
actions resulted in increased incarceration time. Holt moves to dismiss on the grounds
that Couture failed to submit a certificate of merit as required by 12 V.S.A. § 1042, and
that Couture has further failed to allege proximate causation. Couture is pro se. Kaveh S.
Shahi, Esq. represents Holt.
Facts
On March 20, 2014, Couture was returned to prison after spending a period of time
in the community on parole when a parole officer alleged that he had committed a
violation of “threatening behavior.” At an April 1, 2014 parole hearing, it was determined
that the evidence presented to the board was sufficient to revoke his parole status in the
community.
Couture’s attorney at the time, Emily Trudeau, requested Dr. Holt to perform a
psychological assessment. The understanding was that they would use his assessment
only if favorable to Couture. However, at no time did Couture meet with Holt. Instead,
Couture met with Holt’s colleague, Dr. Marini. Holt wrote a letter dated May 1, 2014 to
Attorney Trudeau:
In response to your request regarding Mr. Couture’s
treatment needs, it is my opinion that he would benefit from
domestic violence counseling and Dialectical Behavior
Therapy (DBT). I provided an overview of this case to Kim
Bushey, Program Director for the Department of Corrections
(DOC). She informed me that at this time the DOC is not
providing DBT within the prison system. In addition,
domestic violence programming is currently limited, as the
delivery system is in transition.
Holt Letter to Trudeau (attached to Compl.). Trudeau informed Couture that Holt’s
assessment was not favorable. Trudeau worked out the best deal she could with the parole
board by dismissing the charges in exchange for a non-association violation. However,
the DOC decided not to release Couture until another assessment, and despite a favorable
second assessment, it “[d]ecided to stick with Dr. Holt’s unprofessional opinion.” Compl.
at 5.
Couture alleges it was unprofessional conduct for Dr. Holt to “[g]ive an opinion
concerning an assessment that he never took part in,” id. at 2, and similarly that it is
“unprofessional, unethical for Dr. Holt to offer and give an opinion based off another
[doctor’s] assessment that was never completed in the first place.” Id. at 3. He further
alleges that Dr. Holt violated his “right to privacy” by contacting the DOC program
director without authorization to do so. Id.
Discussion
A plaintiff in a medical malpractice action must file a “certificate of merit”
simultaneously with the complaint in accordance with the statutory requirement. The
statute in question provides:
No civil action shall be filed to recover damages resulting from
personal injury or wrongful death occurring on or after
February 1, 2013, in which it is alleged that such injury or
death resulted from the negligence of a health care provider,
unless the attorney or party filing the action files a certificate
of merit simultaneously with the filing of the complaint. In the
certificate of merit, the attorney or plaintiff shall certify that
he or she has consulted with a health care provider qualified
pursuant to the requirements of Rule 702 of the Vermont
Rules of Evidence and any other applicable standard, and
that, based on the information reasonably available at the
time the opinion is rendered, the health care provider has:
(1) described the applicable standard of care;
(2) indicated that based on reasonably available evidence,
there is a reasonable likelihood that the plaintiff will be
able to show that the defendant failed to meet that
standard of care; and
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(3) indicated that there is a reasonable likelihood that the
plaintiff will be able to show that the defendant’s failure to
meet the standard of care caused the plaintiff’s injury.
12 V.S.A. § 1042(a). The statute goes on to state that “[t]he failure to file the certificate of
merit as required by this section shall be grounds for dismissal of the action without
prejudice, except in the rare instances in which a court determines that expert testimony
is not required to establish a case for medical malpractice.” Id. § 1042(e). A recent
Supreme Court decision clarified that dismissal of a medical malpractice action is
required where the certificate of merit was “wholly omitted” when the complaint was filed.
McClellan v. Haddock, 2017 VT 13, ¶¶ 16, 25 (Mar. 3, 2017).
Couture filed a document titled “Certificate of Merit” with his complaint. In that
document, Couture does not certify that he consulted with a health care provider. Instead,
he argues that the court should apply an exception to the requirement in this case, for two
reasons: (1) despite good faith attempts to comply with 12 V.S.A. § 1042, he has been
unable to do so because of his incarceration; and (2) this is one of the “rare instances in
which a court determines that expert testimony is not required to establish a case for
medical malpractice.” Id. § 1042(e).
The court rejects Couture’s first basis for an exception. There is no “good faith
attempt” exception to the certificate of merit requirement. Has the legislature intended
for such an exception, it could easily have so provided in the statute. It did not do so.
Couture’s status as an inmate and his good faith attempts to consult with an expert do not
exempt him from the statutory requirement.
Couture’s second grounds for an exception is, of course, explicitly included in the
statute. But that exception clearly does not apply with respect to Couture’s first factual
basis for his complaint, that Dr. Holt offered an opinion despite having no personal
contact with Couture. The court cannot say that expert testimony is unnecessary to
establish that this was a breach of the duty of care. Without expert testimony from a
forensic psychologist, a lay person cannot conclude that offering an opinion based on
consultations with colleagues who have personally examined the patient is wrong.
Nothing suggests that this practice is improper. While Couture was allegedly told by Dr.
Marini that Dr. Holt would also meet with him at least once, which did not happen, that
does not establish a breach of a medical standard of care. Moreover, the “Evaluation
Services Consent Form” signed by Couture on April 11, 2014 states: “I understand that Dr.
Holt will consult with his colleagues at Vermont Forensic Assessment, PLLC in writing
this formal report.” (attached to Compl.). The certificate of merit is also required for the
element of causation. Here, Couture would need to show that a personal meeting between
him and Dr. Holt would have changed Dr. Holt’s opinion. That, also, is a matter that a lay
person cannot decide without the aid of expert testimony.
Couture’s second claim is that Dr. Holt without permission provided an overview
of Couture’s case to the Department of Corrections, when he was authorized to
communicate only with Couture’s counsel. The certificate of merit requirement does not
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apply to this claim because it is not truly a claim for medical malpractice.1 It is more
accurately construed as a claim for either invasion of privacy, or breach of the
psychotherapist-patient confidential relationship (also referred to as “breach of
confidence”). See Annotation, Physician’s Tort Liability for Unauthorized Disclosure of
Confidential Information About Patient, 48 A.L.R.4th 668 (originally published in 1986)
(observing that courts have recognized either invasion of privacy or breach of confidence
claims for this factual scenario); Annotation, Cause of Action Against Physician or Other
Health Care Practitioner for Wrongful Disclosure of Confidential Patient Information, 24
Causes of Action 503 (originally published in 1991) (Oct. 2017 update) (elements of claim
that health care practitioner breached fiduciary duty of confidentiality include: (1) that
defendant owed plaintiff a duty of confidentiality, (2) that defendant breached that duty
by disclosing confidential patient information about plaintiff, and (3) that plaintiff
sustained injury as a result of the disclosure); Alan B. Vickery, Breach of Confidence: An
Emerging Tort, 82 Colum. L. Rev. 1426 (1982) (concluding that the basis for imposing
liability for the tort of “breach of confidence” should be “disclosure of information
revealed in the course of a nonpersonal relationship of a sort customarily understood to
carry an obligation of confidentiality”).
While it appears that Vermont has yet not expressly recognized such a breach of
confidentiality claim, numerous other states have. See, e.g., Humphers v. First Interstate
Bank of Oregon, 298 Or. 706, 717–22 (1985) (recognizing breach of confidentiality cause
of action brought by mother against physician who delivered her baby given up for
adoption shortly after birth, and who had subsequently revealed mother’s identity to
daughter); MacDonald v. Clinger, 446 N.Y.S.2d 801, 804–05 (N.Y. App. Div. 1982) (cause
of action by patient against psychiatrist for disclosing confidential information to
patient’s wife); see also Sorensen v. Barbuto, 2008 UT 8, ¶ 17, 177 P.3d 614 (distinguishing
physician’s duty of confidentiality from physician-patient testimonial privilege and
recognizing a “healthcare fiduciary duty of confidentiality”) (cited in passing in Kuligoski
v. Brattleboro Retreat, 2016 VT 54A, ¶ 60 n.11).
Additionally, some other courts have alternatively construed this type of claim as
one for invasion of privacy. See, e.g., Com. v. Brandwein, 435 Mass. 623, 630, 760 N.E.2d
724, 729 (2002) (“Disclosure of confidential medical information, in violation of that
professional duty, can constitute an actionable tort, or an invasion of privacy . . . .”); Logan
v. D.C., 447 F. Supp. 1328, 1336 (D.D.C. 1978) (applying District of Columbia Law); see
generally Restatement (Second) of Torts § 652D (1977) (“Publicity Given to Private Life”).
So far as this court can discern, the Vermont Supreme Court has not had the opportunity
to do so. But it has recognized the invasion of privacy cause of action on numerous
occasions. See, e.g., Weinstein v. Leonard, 2015 VT 136, ¶ 29, 200 Vt. 615 (to establish
invasion of privacy, plaintiff must prove “intentional [and substantial] interference with
[his] interest in solitude or seclusion, either as to [his] person or as to [his] private affairs
or concerns, of a kind that would be highly offensive to a reasonable [person]” (citing
Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 162 (1992); Restatement (Second) of Torts
1 Even assuming it were properly construed as a medical malpractice claim, a layperson could easily
determine that unnecessarily disclosing confidential patient information without permission breaches a
duty of care, without the aid of an expert witness.
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§ 652B); Pion v. Bean, 2003 VT 79, ¶ 35, 176 Vt. 1; Shahi v. Madden, 2008 VT 25, ¶¶ 23–
24, 183 Vt. 320.
It is not apparent from the complaint or the documents relied on therein why Dr.
Holt gave an “overview” of Couture’s case to DOC. He might have done so in the course of
gathering information, but the “overview” was not necessary to obtain the information he
sought. He could easily have asked if certain domestic abuse programming was available,
without revealing the identity of the particular inmate who he thought needed that
programming. On the face of the complaint and the related documents, Couture appears
to have stated a claim for some cause of action that the Supreme Court is likely to
recognize, whether it be breach of confidentiality or invasion of privacy. As the Court has
noted, the goal in deciding a motion to dismiss is to “strike a fair balance, at the early
stages of litigation, between encouraging valid, but as yet underdeveloped causes of action
and discouraging baseless or legally insufficient ones.” Colby v. Umbrella, Inc., 2008 VT
20, ¶ 13, 184 Vt. 1. Indeed, trial court are especially cautious “‘when the asserted theory of
liability is novel or extreme,’ as such cases ‘should be explored in the light of facts as
developed by the evidence, and, generally, not dismissed before trial because of the mere
novelty of the allegations.’” Alger v. Dep’t of Labor & Indus., 2006 VT 115, ¶ 12, 181 Vt.
309 (quoting Ass’n of Haystack Prop. Owners, Inc. v. Sprague, 145 Vt. 443, 447 (1985)).
Holt further contends that Couture did not adequately allege proximate causation.
He argues that the complaint itself directly forecloses causation because Couture waived
the final parole revocation hearing by agreeing to a settlement. However, the allegation is
that Couture agreed to that settlement thinking that he would be released immediately,
but that he was never released because DOC used Dr. Holt’s improperly disclosed opinion
to keep him incarcerated. This allegation is sufficient to survive the motion to dismiss
stage.
Order
Defendant’s motion to dismiss is granted in part and denied in part. The claim that
Dr. Holt improperly offered an opinion despite having no personal contact with Couture
is dismissed. However, the motion to dismiss is denied with respect to the claim that Dr.
Holt breached a duty of confidentiality by disclosing his opinion about Couture’s
programming needs to DOC without permission.
All discovery shall be completed by February 1, 2018. Any motions for summary
judgment shall be filed by March 1, 2018.
SO ORDERED this 27th day of October, 2017.
_____________________________
Robert A. Mello
Superior Court Judge
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