PAUL RADZIK ET AL.
CONNECTICUT CHILDREN'S MEDICAL CENTER ET AL
Argued December 11, 2014
Action to recover damages for, inter alia, the wrongful death of the plaintiffs' decedent as a result of the defendants' alleged failure to obtain informed consent in connection with the administration of a certain medication, brought to the Superior Court in the judicial district of Hartford, where the case was transferred to the Complex Litigation Docket; thereafter, the court, Miller, J., issued a discovery order relating to the forensic examination of certain personal computers that had been used by the defendant Francisco A. Sylvester, and the defendants appealed to the Appellate Court, DiPentima, C. J., and Sheldon and Bishop, Js., which dismissed the defendants' appeal, and the defendants, on the granting of certification, appealed to this court.
The plaintiff, individually and as the administrator of the estate of his son, J, sought to recover damages from the defendants for J's wrongful death. The trial court issued a ruling on various motions filed by the plaintiff to compel electronic discovery of certain information on three home and work computers used by the defendant physician, S, concerning S's knowledge of a particular medication he had prescribed for J. The court's ruling permitted the plaintiff to image the hard drives of the three computers and provided that the contents would then be forensically examined. In order to protect the privacy of nonparty patients and S's family, the court ordered that anyone involved in the imaging or investigation would have to sign a protective order and that a discovery master would be appointed to oversee the independent forensic consultant who would complete the forensic investigation. The defendants appealed from the trial court's order to the Appellate Court, which concluded that the order did not constitute a final judgment whereby the defendants' rights were irretrievably lost because the order was not directed at nonparties, did not constitute a separate and distinct proceeding, and did not provide for the dissemination of the forensic imaging. Accordingly, the Appellate Court dismissed the appeal, and the defendants, on the granting of certification, appealed to this court, claiming that the order constituted a final judgment because once the private information of nonparty patients was disclosed to the discovery master, patient confidentiality would be lost. Held that the Appellate Court properly determined that the trial court's discovery order did not constitute a final judgment; in light of the additional protections added to the discovery order by the trial court in response to this court's order for clarification which would allow the defendants the opportunity to redact patient identifying information, this court was not persuaded that the privacy interests of patients were likely to be irreparably harmed, and, therefore, the discovery order neither terminated a separate and distinct proceeding or so concluded the rights of the parties that further proceedings could not affect them.
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).
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.
[317 Conn. 314] 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, to compel electronic discovery of the hard drives of certain computers used by the defendant Francisco 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 information [317 Conn. 315] on the computers would impair the privacy interests 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 master?" 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 computers 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 Remicade, 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 Children's Medical Center, supra, 145 Conn.App. 670. The plaintiff further alleged in his amended complaint that " when Sylvester prescribed Remicade for Jonathan [317 Conn. 316] Radzik, he was aware that: '[T]he manufacturer of Remicade 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, further, that he had failed to obtain parental permission to prescribe Remicade for Jonathan Radzik." Id.
The plaintiff filed various motions to compel electronic discovery with the goal of determining what Sylvester 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 Sylvester'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 investigation 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 [317 Conn. 317] 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 confidential 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 conditions 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 appropriate in this situation. The court stated that it would allow the defendants that opportunity and outlined procedures that defense counsel should take in ...