Commissioner of Health Services v. Kadish

Borden, J.

The sole question of this appeal is whether the record of a medical peer review proceeding is statutorily immune from production in an investigation of a health care professional by the department of health services. The plaintiff commissioner appeals from the judgment of the trial court granting a motion to quash a subpoena duces tecum served on the defendant, the chairperson of the Tolland County Dental Society peer review committee.¹ The trial court held that the record of the committee’s proceedings are shielded from production by General Statutes § 38-19a (d). We find error.

The record discloses the following facts. The plaintiff, under authority of investigatory powers granted the department of health services,² was investigating a licensed dentist, Arthur Fitzgerald, for possible violations of his license to practice, arising out of his treatment of a particular patient. The committee had conducted a peer review of Fitzgerald’s treatment of that patient. Pursuant to his authority under General Statutes § 19a-14 (a) (10), the plaintiff issued a subpoena duces tecum to the defendant in his capacity as chairperson of the committee, seeking the records of the committee’s review of that treatment. The defendant failed to appear and produce the records, and the plaintiff petitioned the trial court for enforcement. The defendant then moved to quash the subpoena, and the court granted the defendant’s motion to quash. This appeal followed.

The plaintiff’s argument, which we find dispositive, is that the trial court erred in holding that General Statutes § 38-19a (d) ³ prevents the plaintiff from discovery of the committee’s records of its peer review of Fitzgerald. The defendant argues, and the trial court agreed, ⁴ that the peer review proceedings are immune from discovery by virtue of General Statutes § 38-19a (d). We disagree.

General Statutes § 38-19a (d) provides that peer review proceedings conducted by a medical review committee are not “subject to discovery or introduction into evidence in any civil action for or against a health care provider . . . .” (Emphasis added.) Whether a statutory proceeding is a civil action depends on the purpose for which the legislature created the proceeding and the most efficacious way to carry out that purpose. Fishman v. Middlesex Mutual Assurance Co., 4 Conn. App. 339, 344, 494 A.2d 606, cert. denied, 197 Conn. 806, 499 A.2d 57 (1985). Even those statutory proceedings that have been held to be civil actions in other contexts; see, e.g., Carbone v. Zoning Board of Appeals, 126 Conn. 602, 604-607, 13 A.2d 462 (1940); were proceedings in court and not, as here, purely administrative investigatory proceedings. See also Practice Book § 256 (administrative appeals to Superior Court are civil actions for purposes of rules of practice, but not for purposes of certain statutes). We agree with the well reasoned decision of the Superior Court, in another case, that an investigation by the commissioner of health services is not a “civil action” within the meaning of General Statutes § 38-19a (d). See Commissioner v. William W. Backus Hospital, 40 Conn. Sup. 188, 190, 485 A.2d 937 (1984) (M. Hennessey, J.).

We are unpersuaded by the dissent’s reliance on Morse v. Gerrity, 520 F. Sup. 470 (D.C. Conn. 1981), because that was a medical malpractice action — -clearly a “civil action” — in which the issue was whether the statutory privilege covered peer review proceedings unrelated to the subject matter of the case before the court. Id., 471. It did not address the issue of whether an administrative investigatory proceeding is a “civil action” within the meaning of the statute.

Indeed, the dissent’s policy argument proves too much, because General Statutes § 38-19a (d) does not create an absolute privilege; the statute itself carves out limits and exceptions where peer review proceedings are disclosable. The statutory privilege is limited to “any civil action for or against a health care provider . . . .” (Emphasis added.) General Statutes § 38-19a (d). Thus, even in the context of a civil action between other parties, peer review proceedings, if otherwise relevant, are not shielded; and peer review proceedings are not shielded “in any health provider proceedings concerning the termination or restriction of staff privileges . . . .” General Statutes § 38-19a (d) (3). Furthermore, we fail to see how, as the dissent suggests, the meaning of “civil action” as used in the statute differs when it is applied to a dentist, as opposed to a physician.

Finally, the dissent’s reliance on the purported exercise of discretion by the trial court simply mischaracterizes how the case was tried and decided in the trial court. See footnote 4, supra. The trial court did not nor was it asked to exercise any such discretion.

There is error, the judgment is set aside and the case is remanded with direction to render judgment denying the motion to quash and ordering enforcement of the subpoena duces tecum.

In this opinion Stoughton, J., concurred.

1 Although the parties have not questioned our jurisdiction to hear this appeal, we address sua sponte whether the judgment appealed from is a final judgment. See Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 225, 429 A.2d 478 (1980). We conclude that it is.

Ordinarily, discovery orders and the like are not final judgments for purposes of appeal. Id., 226; Holyoke Mutual Ins. Co. in Salem v. Papa, 13 Conn. App. 808, 534 A.2d 917 (1987). That rule clearly applies in civil actions where the discovery order is directed to one of the parties, because the aggrieved party may present the ruling of the court for review on appeal at the termination of the case. See Chrysler Credit Corporation v. Fairfield Chrysler-Plymouth, Inc., supra, 228.

In this case, however, the only proceeding before the trial court involved the propriety of the investigative subpoena. That proceeding will not result in a later judgment from which the defendant can then appeal. Thus, this appeal falls within the first prong of the test of finality of judgment stated in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983): “(1) where the order or action terminates a separate and distinct proceeding.” The court’s order quashing the plaintiffs subpoena terminated the separate and distinct judicial proceeding that was instigated solely to test the propriety of the administrative subpoena.

2 General Statutes § 19a-14 (a) provides in relevant part: “The department of health services shall have the following powers and duties with

regard to the boards and commissions listed in subsection (b) which are within the department of health services. The department shall: . . .

“(10) Conduct any necessary review, inspection or investigation regarding qualification of applicants for licenses or certificates, possible violations of statutes or regulations, and disciplinary matters. In connection with any investigation, the commissioner of health services or said commissioner’s authorized agent may administer oaths, issue subpoenas, compel testimony and order the production of books, records and documents. 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 . . . .”

3 General Statutes § 38-19a (d) provides: “The proceedings of a medical review committee conducting a peer review shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider arising out of the matters which are subject to evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to the content of such proceedings; provided the provisions of this subsection shall not preclude (1) in any civil action, the use of any writing which was recorded independently of such proceedings; (2) in any civil action, the testimony of any person concerning the facts which formed the basis for the institution of such proceedings of which he had personal knowledge acquired independently of such proceedings; (3) in any health care provider proceedings concerning the termination or restriction of staff privileges, other than peer review, the use of data discussed or developed during peer review proceedings; or (4) in any civil action, disclosure of the fact that staff privileges were terminated or restricted, including the specific restrictions imposed, if any.”

4 The defendant also argues that we need not reach the issue of whether General Statutes § 38-19a (d) shields the committee’s records from the plaintiff’s subpoena, because the trial court did not decide that issue but merely exercised its discretion to decline to enforce the subpoena pursuant to General Statutes § 19-14 (a) (10). This argument mischaracterizes the theory on which the case was tried and decided by the trial court. The trial court stated the claim of the defendant as follows: “The defendant claims the Peer Review Committee is protected by immunity according to Conn. Gen. Stats. § 38-19a.” The court stated the issue before it as “whether the proceeding in the hands of the Tolland County Peer Review Committee is protected from the demands of the Commissioner by immunity.” We decide this case on the theory on which it was tried and decided in the trial court. Neumann v. Zoning Board of Appeals, 14 Conn. App. 55, 62, 539 A.2d 614 (1988).