Commissioner of Public Health v. Colandrea

 COMMISSIONER OF PUBLIC HEALTH
v. ANTHONY P. COLANDREA
(AC 38906)
DiPentima, C. J., and Alvord and Lavery, Js.
Syllabus
The defendant, a dentist licensed by the Department of Public Health,
appealed to this court from the judgment of the trial court granting the
petition filed by the plaintiff, the Commissioner of Public Health, to
enforce a subpoena duces tecum seeking the production of certain
patient records from the defendant. V Co., which had contracted with
a health insurer to audit various health care providers, made numerous
attempts to obtain patient records from the defendant, who refused to
comply. Thereafter, V Co. filed a complaint that was referred to the
department, which opened an investigation into allegations of fraudulent
billing practices by the defendant. As part of its investigation, the depart-
ment, pursuant to its statutory (§ 19a-14 [a] [10]) authority, issued a
subpoena duces tecum directing the defendant to produce complete
copies of all records for thirty-one patients, and, after the defendant
failed to comply, the plaintiff sought to enforce the subpoena. At a
hearing before the trial court, the defendant argued that the statute
(§ 52-146o) prohibiting licensed health care providers from disclosing
patient communications and information without the patient’s consent
precluded him from disclosing the subpoenaed records in the absence
of such consent. The defendant also argued that the plaintiff failed to
meet the requirements of § 52-146o (b) (3), which allows disclosure to
the department of patient communications or information in connection
with an investigation or a complaint, if such communications or informa-
tion relate to the complaint or investigation. On appeal from the trial
court’s judgment, the defendant claimed that the plaintiff failed to make
a sufficient factual showing that the subpoenaed records were related
to the complaint or investigation. Held that the trial court properly
granted the petition to enforce the subpoena duces tecum, the plaintiff
having proven that the subpoenaed records met the requirements of § 52-
146o (b) (3); the facts of the present case established a clear connection
between the complaint under investigation and the subpoenaed records,
as there was testimony that the defendant was under investigation by
the department for fraudulent billing practices, which was prompted
by the complaint filed by V Co., the subpoena was issued in connection
with that complaint and investigation pursuant to § 19a-14 (a) (10), the
department subpoenaed only the defendant’s patient records that related
to that investigation, and the defendant’s counsel declined the opportu-
nity to challenge that evidence through cross-examination of a witness
who testified at the hearing on behalf of the department.
Argued May 24—officially released August 1, 2017
Procedural History
Petition for an order to enforce a subpoena duces
tecum, brought to the Superior Court in the judicial
district of Hartford and tried to the court, Robaina, J.;
judgment granting the petition, from which the defen-
dant appealed to this court. Affirmed.
Matthew D. Paradisi, with whom, on the brief, was
Michael J. Reilly, for the appellant (defendant).
Susan Castonguay, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (plaintiff).
Opinion
PER CURIAM. 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 plain-
tiff failed to make a sufficient factual showing that the
subpoenaed records were related to a complaint under
investigation, as required by General Statutes § 52-
146o.2 We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to the defendant’s claim. The defendant is a dentist
licensed by the Department of Public Health (depart-
ment). On August 27, 2014, the department opened an
investigation into allegations of fraudulent billing prac-
tices 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
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 com-
menced 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
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 Decem-
ber 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 defen-
dant filed an objection to the petition for enforcement.
The court held a hearing on January 25, 2016. At
the hearing, the defendant argued that § 52-146o,5 the
physician-patient privilege statute, prohibited him from
disclosing the subpoenaed records absent patient con-
sent. The defendant acknowledged that, pursuant to
§ 52-146o (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 defen-
dant’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 prac-
tice; (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
is standard practice for the department to issue subpoe-
nas to dental professionals to review patient records
for possible fraudulent activity. The defendant’s coun-
sel was given the opportunity to cross-examine Boulw-
are but declined to do so.
The trial court, relying on Edelstein v. Dept. of Public
Health & Addiction Services, 240 Conn. 658, 692 A.2d
803 (1997), overruled the defendant’s objection and
granted the plaintiff’s petition for enforcement. In its
order overruling the defendant’s objection, the court
concluded that ‘‘[t]he evidence submitted by the depart-
ment supports the request for the records which are
the subject of the subpoena.’’ The defendant filed a
motion to reargue and for reconsideration, which the
court denied. This appeal followed.
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 § 52-146o. 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 . . . § 52-146o (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 ple-
nary review. Centrix Management Co., LLC v. Valen-
cia, 132 Conn. App. 582, 586, 33 A.3d 802 (2011). Under
the plenary standard of review, we must decide whether
the court’s conclusions are legally and logically correct
and supported by the facts in the record. Id., 586–87;
Winchester v. McCue, 91 Conn. App. 721, 726, 882 A.2d
143, cert. denied, 276 Conn. 922, 888 A.2d 91 (2005).
Section 52-146o (a) prohibits physicians from disclos-
ing 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 investiga-
tion of a complaint, if such records are related to the
complaint . . . .’’ General Statutes § 52-146o (b) (3).
Our Supreme Court’s decision in Edelstein v. Dept.
of Public Health & Addiction Services, supra, 240 Conn.
658, informs our analysis of the issues raised on appeal.7
In Edelstein, the Department of Public Health and
Addiction Services received a complaint from a health
insurer regarding a physician who allegedly had submit-
ted several false claims for reimbursement to the health
insurer and wrongfully caused the insurer to reimburse
the physician for services that the insurance policy did
not cover. Id., 660. The department began an investiga-
tion into the physician’s billing practices and, in connec-
tion with that investigation, issued a subpoena duces
tecum for patient medical records. Id. The physician
filed an application to quash the department’s subpoena
on the ground that the records were privileged under
§ 52-146o. Id., 661. The trial court ultimately denied the
application to quash on the ground that the records
were not privileged under that section. Id. Our Supreme
Court agreed with the physician that § 52-146o covered
the patient records, but affirmed the trial court’s denial
of the application to quash. It reasoned that ‘‘the excep-
tion contained in § 52-146o (b) (3) applies to the medical
records sought in the present case and requires that
the [physician] disclose these records to the depart-
ment.’’ Id., 670.
As in Edelstein, the plaintiff in the present case has
proven that the subpoenaed records fell within the
exception of § 52-146o (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, specif-
ically, that of the practitioner licensing and investiga-
tions 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 foot-
note 3 of this opinion. Boulware testified that the defen-
dant was under investigation for fraudulent billing
practices, an investigation prompted by a referral from
the Office of the Attorney General of a complaint by
Verisk, and that the department subpoenaed only the
defendant’s patient records that related to that investi-
gation. At the hearing, the trial court offered the defen-
dant’s counsel an opportunity to challenge this evidence
through cross-examination of Boulware, and the defen-
dant 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 con-
clude that the plaintiff satisfied the requirements of
§ 52-146o (b) (3).9
The judgment is affirmed.
1
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.
2
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 § 52-146o (b) are reasonably related to a complaint under investiga-
tion.’’ We have reviewed this claim and conclude that both issues, as pre-
sented 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.
3
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 commis-
sioner’s authorized agent may administer oaths, issue subpoenas, compel
testimony and order the production of books, records and documents. . . .’’
4
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 . . . .’’
5
General Statutes § 52-146o (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.’’
6
General Statutes § 52-146o (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 Com-
missioner 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 . . . .’’
7
The defendant also relies on Lieb v. Dept. of Health Services, 14 Conn.
App. 552, 553, 542 A.2d 741 (1988), a case decided eight years prior to the
enactment of § 52-146o (b) (3), that addressed the issue of whether the
department’s statutory subpoena power overrides the statutory psychiatrist-
patient privilege found in General Statutes § 52-146e (a). The defendant’s
reliance on this case is misplaced.
8
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 . . . § 52-146o (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
§ 52-146o (b) (3). See Rene Dry Wall Co., Inc. v. Strawberry Hill Associates,
182 Conn. 568, 575, 438 A.2d 774 (1980) (‘‘[a]lthough there was no explicit
finding that the defendant’s expenditures were reasonable [as required by
the statute at issue], such a conclusion is implicit in the trier’s findings, and
is supported by testimony’’); Computer Reporting Service, LLC v. Lovejoy &
Associates, LLC, 167 Conn. App. 36, 45–46, 145 A.3d 266 (2016) (concluding
that finding of mutual assent was implicit within court’s express finding
that contract existed).
9
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 § 52-146o (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, 240 Conn. 670. Although the court did note that the records
must be related to the complaint under investigation, it did not go as far
as to require the specificity suggested by the defendant.