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Commissioner of Public Health v. Colandrea

Court of Appeals of Connecticut

August 1, 2017

COMMISSIONER OF PUBLIC HEALTH
v.
ANTHONY P. COLANDREA

          Argued Date: May 24, 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 defendant 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 general, for the appellee (plaintiff).

          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 aninvestigation into allegations of fraudulent billing practices by the defendant. As part of its investigation, the department, 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 information 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 opportunity to challenge that evidence through cross-examination of a witness who testified at the hearing on behalf of the department.

          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 plaintiff 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 relevant to the defendant's claim. The defendant is a dentist licensed by the Department of Public Health (department). On August 27, 2014, the department opened an investigation into allegations of fraudulent billing practices 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 commenced 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 December 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 defendant 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 consent. 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 ...


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