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Byrne v. Avery Center For Obstetrics & Gynecology, P.C.

Supreme Court of Connecticut

January 16, 2018

EMILY BYRNE
v.
AVERY CENTER FOR OBSTETRICSAND GYNECOLOGY, P.C.

          Argued May 1, 2017

          Bruce L. Elstein, for the appellant (plaintiff).

          James F. Biondo, for the appellee (defendant).

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Robinson and D'Auria, Js. [*]

          OPINION

          EVELEIGH, J.

         The plaintiff, Emily Byrne, [1] appeals from the judgment of the trial court rendered in favor of the defendant, Avery Center for Obstetrics and Gynecology, P.C., on two counts of the operative complaint alleging, respectively, negligence and negligent infliction of emotional distress.[2] On appeal, the plaintiff asserts that the trial court incorrectly granted summary judgment in favor of the defendant on these counts because it incorrectly concluded that the defendant, as a health care provider, owed the plaintiff no common-law duty of confidentiality. We agree with the plaintiff and, accordingly, reverse the judgment of the trial court.

         This case returns to us for a second time. The facts and procedural history are set forth in this court's prior decision. See Byrne v. Avery Center for Obstetrics & Gynecology, P.C., 314 Conn. 433, 436-44, 102 A.3d 32 (2014). ‘‘Before July 12, 2005, the defendant provided the plaintiff [with] gynecological and obstetrical care and treatment. The defendant provided its patients, including the plaintiff, with notice of its privacy policy regarding protected health information and agreed, based on this policy and on law, that it would not disclose the plaintiff's health information without her authorization.

         ‘‘In May, 2004, the plaintiff began a personal relationship with Andro Mendoza, which lasted until September, 2004.[3] . . . In October, 2004, she instructed the defendant not to release her medical records to Mendoza. In March, 2005, she moved from Connecticut to Vermont where she presently lives. On May 31, 2005, Mendoza filed paternity actions against the plaintiff in Connecticut and Vermont.'' (Footnote in original; internal quotation marks omitted.) Id., 437. Thereafter, the defendant received a subpoena instructing the custodian of its records to appear before the issuing attorney on July 8, 2005, at the New Haven Regional Children's Probate Court and to produce ‘‘all medical records'' pertaining to the plaintiff. ‘‘The defendant did not alert the plaintiff of the subpoena, file a motion to quash it or appear in court. Rather, the defendant mailed a copy of the plaintiff's medical file to the court around July 12, 2005. In September, 2005, [Mendoza] informed [the] plaintiff by telephone that he reviewed [the] plaintiff's medical [record] in the court file. On September 15, 2005, the plaintiff filed a motion to seal her medical file, which was granted. The plaintiff alleges that she suffered harassment and extortion threats from Mendoza since he viewed her medical records.[4] . . .

         ‘‘The plaintiff subsequently brought this action against the defendant. Specifically, the operative complaint in the present case alleges that the defendant: (1) breached its contract with her when it violated its privacy policy by disclosing her protected health information without authorization; (2) acted negligently by failing to use proper and reasonable care in protecting her medical file, including disclosing it without authorization in violation of General Statutes § 52-146o[5] and the [federal] regulations implementing [the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1320d et seq.], (3) made a negligent misrepresentation, upon which the plaintiff relied to her detriment, that her medical file and the privacy of her health information would be protected in accordance with the law; and (4) engaged in conduct constituting negligent infliction of emotional distress. After discovery, the parties filed cross motions for summary judgment.'' (Footnotes altered; internal quotation marks omitted.) Byrne v. Avery Center for Obstetrics & Gynecology, P.C., supra, 314 Conn. 437-39.

         ‘‘With respect to the plaintiff's negligence based claims in counts two and four of the complaint, the trial court agreed with the defendant's contention that ‘HIPAA preempts ‘‘any action dealing with confidentiality/privacy of medical information, ' '' which prompted the court to treat the summary judgment motion as one seeking dismissal for lack of subject matter jurisdiction. In its memorandum of decision, the trial court first considered the plaintiff's negligence claims founded on the violations of the regulations implementing HIPAA. The court first observed the ‘well settled' proposition that HIPAA does not create a private right of action, requiring claims of violations instead to be raised through . . . administrative channels. The trial court then relied on Fisher v. Yale University, Superior Court, judicial district of New Haven, Complex Litigation Docket, Docket No. X10-CV-04-4003207-S (April 3, 2006), and Meade v. Orthopedic Associates of Windham County, Superior Court, judicial district of Windham, Docket No. CV-06-4005043-S (December 27, 2007), and rejected the plaintiff's claim that she had not utilized HIPAA as the basis of her cause of action, but rather, relied on it as ‘ ‘‘evidence of the appropriate standard of care'' for claims brought under state law, namely, negligence.' Emphasizing that the courts cannot supply a private right of action that the legislature intentionally had omitted, the trial court noted that the ‘plaintiff has labeled her claims as negligence claims, but this does not change their essential nature. They are HIPAA claims.' The trial court further determined that the plaintiff's statutory negligence claims founded on a violation of § 52-146o were similarly preempted because the state statute had been superseded by HIPAA, and thus the plaintiff's state statutory claim ‘amount[ed] to a claim for a HIPAA violation, a claim for which there is no private right of action.'

         ‘‘The trial court concluded similarly with respect to the plaintiff's common-law negligence claims, observing that, under the regulatory definitions implementing HIPAA's preemption provision[6] . . . to ‘the extent that common-law negligence permits a private right of action for claims that amount to HIPAA violations, it is a contrary provision of law and subject to HIPAA's preemption rule. Because it is not more stringent, according to the definition of 45 C.F.R. § 160.202, the preemption exception does not apply.' For the same reasons, the trial court dismissed count four of the complaint, claiming negligent infliction of emotional distress.

         ‘‘With respect to the remainder of the pending motions, the trial court first denied, on the basis of its previous preemption determinations, the plaintiff's motion for summary judgment, which had claimed that the defendant's conduct in responding to the subpoena violated the HIPAA regulations, specifically 45 C.F.R. § 164.512 (e), as a matter of law. The trial court denied, however, the defendant's motion for summary judgment with respect to the remaining counts of the complaint, namely, count one alleging breach of contract and count three alleging negligent misrepresentation, determining that genuine issues of material fact existed with respect to contract formation through the defendant's privacy policy, and whether the plaintiff had received and relied upon that policy. Thus, the trial court denied the defendant's motion for summary judgment as to counts one and three of the complaint, and dismissed counts two and four of the complaint for lack of subject matter jurisdiction.'' (Citations omitted; footnotes added and omitted.) Byrne v. Avery Center for Obstetrics & Gynecology, P.C., supra, 314 Conn. 439-44.

         Thereafter, pursuant to Practice Book § 61-4, the plaintiff obtained permission to file an appeal from the judgment of the trial court dismissing counts two and four of the complaint to the Appellate Court. The appeal was subsequently transferred to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. On appeal to this court, the plaintiff asserted that the trial court improperly concluded that her state law claims for negligence and negligent infliction of emotional distress were preempted by HIPAA. Id., 436. In examining the plaintiff's claim, this court explained: ‘‘We note at the outset that whether Connecticut's common law provides a remedy for a health care provider's breach of its duty of confidentiality, including in the context of responding to a subpoena, is not an issue presented in this appeal. Thus, assuming, without deciding, that Connecticut's common law recognizes a negligence cause of action arising from health care providers' breaches of patient privacy in the context of complying with subpoenas, we agree with the plaintiff and conclude that such an action is not preempted by HIPAA and, further, that the HIPAA regulations may well inform the applicable standard of care in certain circumstances.'' (Footnote omitted.) Id., 446-47.

         This court concluded that, ‘‘to the extent that Connecticut's common law provides a remedy for a health care provider's breach of its duty of confidentiality in the course of complying with a subpoena, HIPAA does not preempt the plaintiff's state common-law causes of action for negligence or negligent infliction of emotional distress against the health care providers in this case and, further, that regulations of the Department of Health and Human Services (department) implementing HIPAA may inform the applicable standard of care in certain circumstances.'' Id., 436. Accordingly, this court reversed the judgment of the trial court and remanded the case to that court for further proceedings. Id., 463.

         On remand, the defendant filed a motion for summary judgment on the counts of the operative complaint alleging negligence and negligent infliction of emotional distress. As grounds for its motion, the defendant claimed that no Connecticut court had ever recognized a common-law cause of action against a health care provider for breach of its duty of confidentiality for its response to a subpoena. The trial court granted the defendant's motion for summary judgment, determining that ‘‘no courts in Connecticut, to date, recognized or adopted a common-law privilege for communications between a patient and physicians. Any recognition of this cause of action is best addressed to our Supreme and Appellate Courts or the legislature. Accordingly the motion for summary judgment is granted as to counts two and four of the plaintiff's operative complaint.'' This appeal followed. See footnote 2 of this opinion.

         We begin with general principles and the standard of review. ‘‘Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary.'' (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016); see also Arras v. Regional School District No. 14, 319 Conn. 245, 255, 125 A.3d 172 (2015).

         In the present appeal, the plaintiff asserts that the trial court incorrectly granted summary judgment in favor of the defendant on the counts of the operative complaint alleging negligence and negligent infliction of emotional distress. Specifically, the plaintiff asserts that Connecticut's common law recognizes a duty of confidentiality arising from the physician-patient rela- tionship and that this duty extends to compliance with a subpoena. The plaintiff further asserts that recognition of such a duty is supported by public policy considerations, as reflected in § 52-146o and HIPAA, and case law from other jurisdictions. In response, the defendant asserts that there is no common-law duty of confidentiality between a health care provider and a patient in the context of responding to a subpoena. The defendant further asserts that such a duty is not supported by public policy considerations or recognized in other jurisdictions. We conclude that recognizing a cause of action for the breach of the duty of confidentiality in the physician-patient relationship by the disclosure of medical information is not barred by § 52-146o or HIPAA and that public policy, as viewed in a majority of other jurisdictions that have addressed the issue, supports that recognition.

         The dispositive issue in this appeal is whether a patient has a civil remedy against a physician if that physician, without the patient's consent, discloses confidential information obtained in the course of the physician-patient relationship. Although we have not had the opportunity to address this question before, this court has recognized that ‘‘[t]he principle of confidentiality lies at the heart of the physician-patient relationship . . . .'' Jarmie v. Troncale, 306 Conn. 578, 607, 50 A.3d 802 (2012). ‘‘Physician-patient confidentiality is described as a ‘privilege.' . . . When that confidentiality is diminished to any degree, it necessarily affects the ability of the parties to communicate, which in turn affects the ability of the physician to render proper medical care and advice.'' Id., 608-609. ‘‘[T]he purpose of the privilege is to give the patient an incentive to make full disclosure to a physician in order to obtain effective treatment free from the embarrassment and invasion of privacy which could result from a doctor's testimony.'' State v. White, 169 Conn. 223, 234-35, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975), citing C. McCormick, Evidence (2d Ed. 1972) § 98, p. 213. Additionally, the Appellate Court has recognized the fiduciary nature of the physician-patient relationship, which is based on trust and confidence that develops as medical service is provided. Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, 69 Conn.App. 151, 163, 795 A.2d 572 (2002) (‘‘There is a marked resemblance between the continuous treatment of a patient's condition by a physician and the continuous representation of a client by an attorney. . . . In both situations, the relationship between the parties is demarcated by the fiduciary relationship of trust and confidence, which continues to develop as the service is provided.'' [Citations omitted.]).

         The importance of confidentiality in the physician-patient relationship has been recognized by courts in numerous jurisdictions throughout the country. Courts have repeatedly used the common law to recognize ‘‘a patient's valid interest in preserving the confidentiality of medical facts relayed to a physician.'' Bratt v. International Business Machines Corp., 392 Mass. 508, 522, 467 N.E.2d 126 (1984). ‘‘A patient should be entitled to freely disclose his symptoms and condition to his doctor in order to receive proper treatment without fear that those facts may become public property. Only thus can the purpose of the relationship be fulfilled.'' Hague v. Williams, 37 N.J. 328, 336, 181 A.2d 345 (1962). ‘‘The benefits which inure to the relationship of physician-patient from the denial to a physician of any right to promiscuously disclose such information are self-evident. On the other hand, it is impossible to conceive of any countervailing benefits which would arise by according a physician the right to gossip about a patient's health.'' Id., 335-36. ‘‘Notwithstanding the concern that application of the patient-physician privilege may bar the admissibility of probative testimony, there is a clear recognition that, in general, a physician does have a professional obligation to maintain the confidentiality of his patient's communications. . . . This obligation to preserve confidentiality is recognized as part of the Hippocratic Oath.'' (Citation omitted.) Stempler v. Speidell, 100 N.J. 368, 375, 495 A.2d 857 (1985).

         Indeed, this court has explained that ‘‘[t]he principle of confidentiality lies at the heart of the physician-patient relationship and has been recognized by our legislature. [Section] 52-146o was enacted in 1990; see Public Acts 1990, No. 90-177; to address the need ‘to protect the confidentiality of communications in order to foster the free exchange of information from patient to physician . . . .' '' Jarmie v. Troncale, supra, 306 Conn. 607-608, quoting Edelstein v. Dept. of Public Health & Addiction Services, 240 Conn. 658, 666, 692 A.2d 803 (1997).

         Section 52-146o (a) provides: ‘‘Except as provided in sections 52-146c to 52-146j, inclusive, sections 52-146p, 52-146q and 52-146s, and subsection (b) of this section, 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.''

         Subsection (b) of § 52-146o further provides as follows: ‘‘Consent of the patient or the patient's authorized representative shall not be required for the disclosure of such communication or information (1) pursuant to any statute or regulation of any state agency or the rules of court, (2) by a physician, surgeon or other licensed health care provider against whom a claim has been made, or there is a reasonable belief will be made, in such action or proceeding, to the physician's, surgeon's or other licensed health care provider's attorney or professional liability insurer or such insurer's agent for use in the defense of such action or proceeding, (3) to the Commissioner 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, or (4) if child abuse, abuse of an elderly individual, abuse of an individual who is physically disabled or incompetent or abuse of an individual with intellectual disability is known or in good faith suspected.''

         At the outset, we recognize that, although § 52-146o creates an evidentiary privilege arising from the physician-patient relationship, it does not explicitly provide a cause of action or any other remedy for improper disclosure of the confidential communications obtained in the course of that relationship. Contrary to HIPAA, which ‘‘expressly provides a method for enforcing its prohibition upon use or disclosure of [an] individual's health information-the punitive imposition of fines and imprisonment for violations''; (internal quotation marks omitted) Byrne v. Avery Center for Obstetrics & Gynecology, P.C., supra, 314 Conn. 452; § 52-146o does not provide for any penalty for its violation.[7]

         ‘‘An exhaustive search of Connecticut case law reveals no hard and fast test that courts apply when determining whether to recognize new causes of action. We do have the inherent authority, pursuant to the state constitution, to create new causes of action. . . . Moreover, it is beyond dispute that we have the power to recognize new tort causes of action, whether derived from a statutory provision or rooted in the common law.'' (Citation omitted.) ATC Partnership v. Coats North America Consolidated, Inc., 284 Conn. 537, 552- 53, 935 A.2d 115 (2007). ‘‘When we acknowledge new causes of action, we also look to see if the judicial sanctions available are so ineffective as to warrant the recognition of a new cause of action. . . . To determine whether existing remedies are sufficient to compensate those who seek the recognition of a new cause of action, we first analyze the scope and applicability of the current remedies under the facts alleged by the plaintiff. . . . Finally, we are mindful of growing judicial receptivity to the new cause of action, but we remain acutely aware of relevant statutes and do not ignore the statement of public policy that such statutes represent.'' (Citations omitted.) Id., 553.

         We begin by examining the currently available judicial sanctions. In Byrne v. Avery Center for Obstetrics & Gynecology, P.C., supra, 314 Conn. 433, this court undertook a thorough analysis of the criminal and civil sanctions provided by HIPAA. ‘‘It is by now well settled that the statutory structure of HIPAA . . . precludes implication of a private right of action. [Section] 1320d-6 [of title 42 of the United States Code] expressly provides a method for enforcing its prohibition upon use or disclosure of individual's health information-the punitive imposition of fines and imprisonment for violations.'' (Footnote omitted; internal quotation marks omitted.) Id., 451-52. In that case, we further explained that ‘‘one commenter during the rulemaking process had raised the issue of whether a private right of action is a greater penalty, since the proposed federal rule has no comparable remedy.'' Id., 453. ‘‘[HIPAA] provides for only two types of penalties: fines and imprisonment. Both types of penalties could be imposed in addition to the same type of penalty imposed by a state law, and should not interfere with the imposition of other types of penalties that may be available under state law. Thus, we think it is unlikely that there would be a conflict between state and federal law in this respect . . . .'' Id., 453 n.19, quoting Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. 82, 462, 82, 582 (December 28, 2000).

         As explained previously in this opinion, when acknowledging new causes of action, ‘‘we are mindful of growing judicial receptivity to the new cause of action, but we remain acutely aware of relevant statutes and do not ignore the statement of public policy that such statutes represent.'' ATC Partnership v. Coats North America Consolidated, Inc., supra, 284 Conn. 553. Therefore, we next turn to federal law and law from other jurisdictions regarding the duty of health care providers to maintain the confidentiality of medical records.

         Federal law regarding the privacy of medical information is codified in HIPAA. As we explained in Byrne, ‘‘[r]ecognizing the importance of protecting the privacy of health information in the midst of the rapid evolution of health information systems, Congress passed HIPAA in August 1996. . . . Within the Administrative Simplification section, Congress included another provision . . . outlining a two-step process to address the need to afford certain protections to the privacy of health information maintained under HIPAA. First, [Congress] directed [the department] to submit . . . within twelve months of HIPAA's enactment detailed recommendations on standards with respect to the privacy of individually identifiable health information. . . . Second, if Congress did not enact further legislation pursuant to these recommendations within thirty-six months of the enactment of HIPAA, [the department] was to promulgate final regulations containing such standards. . . . Because Congress ultimately failed to pass any additional legislation, the department's final regulations implementing HIPAA, known collectively as the Privacy Rule, were promulgated in February 2001, with compliance phased in over the next few years.'' (Citations omitted; internal quotation marks omitted.) Byrne v. Avery Center for Obstetrics & Gynecology, P.C., supra, 314 Conn. 448-49; see also South Carolina Medical Assn. v. Thompson, 327 F.3d 346, 348 (4th Cir.), cert. denied, 540 U.S. 981, 124 S.Ct. 464, 157 L.Ed.2d 371 (2003).

         In Byrne v. Avery Center for Obstetrics & Gynecology, P.C., supra, 314 Conn. 458-59, this court ‘‘conclude[d] that, if Connecticut's common law recognizes claims arising from a health care provider's alleged breach of its duty of confidentiality in the course of complying with a subpoena, HIPAA and its implementing regulations do not preempt such claims. We further conclude that, to the extent it has become the common practice for Connecticut health care providers to follow the procedures required under HIPAA in rendering services to their patients, HIPAA and its implementing regulations may be utilized to inform the standard of care applicable to such claims arising from allegations of negligence in the disclosure of patients' medical records pursuant to a subpoena.'' Therefore, this court has previously concluded that recognition of a private cause of action for breach of the duty of confidentiality of medical records is not preempted by, or inconsistent with, HIPAA.

         Indeed, this court further explained that ‘‘[t]he availability of such private rights of action in state courts, to the extent that they exist as a matter of state law, do not preclude, conflict with, or complicate health care providers' compliance with HIPAA. On the contrary, negligence claims in state courts support at least one of HIPAA's goals by establishing another disincentive to wrongfully disclose a patient's health care record.'' (Internal quotation marks omitted.) Id., 459; see also Yath v. Fairview Clinics, N.P., 767 N.W.2d 34, 49-50 (Minn.App. 2009) (concluding that state statutory cause of action for improper disclosure of medical records was not preempted by HIPAA because, ‘‘[a]lthough the penalties under the two laws differ, compliance with [the Minnesota statute] does not exclude compliance with HIPAA, '' and ‘‘[r]ather than creating an ‘obstacle' to HIPAA, [the Minnesota statute] supports at least one of HIPAA's goals by establishing another disincentive to wrongfully disclose a patient's health care record''). Therefore, we conclude that the federal law regarding privacy and confidentiality of medical records supports our recognition of a common-law cause of action for breach of the duty of confidentiality of medical records by a health care provider.

         Although the question of whether to recognize a common-law cause of action for breach of the duty of confidentiality of medical records by a health care provider is one of first impression in this court, many other jurisdictions have addressed this question.[8] A review of case law from other jurisdictions that have addressed this issue demonstrates that a majority of jurisdictions have recognized a common-law cause of action for breach of the confidentiality of medical records by health care providers. ‘‘Although the common law did not bestow a privilege on the doctor-patient relationship and no cause of action existed for divulgence of any confidences, the clear modern consensus of the case law has imposed a legal duty of confidentiality or a fiduciary duty under the common law's continuing power and competence to answer novel questions of law arising under ever changing conditions of the society.'' (Footnotes omitted; internal quotation marks omitted.) D. Elder, Privacy Torts (2017) § 5:2; see also annot., 48 A.L.R. 4th 668, § 2 (a) (1986) (‘‘Although at common law neither the patient nor the physician has the privilege that a communication of one to the other not be disclosed to a third party, courts have generally upheld or recognized the right of a patient to recover damages from a physician for unauthorized disclosure concerning the patient on the ground that such disclosure constitutes an actionable invasion of the patient's privacy . . . . Another basis of a physician's liability for unauthorized disclosure of confidential information about a patient is breach of the physician-patient confidential relationship. Although a few jurisdictions have refused to recognize this cause of action . . . it generally has been held or recognized that a patient may have such a cause of action against the physician . . . .'' [Footnotes omitted.]).

         A review of cases from other jurisdictions reveals that courts have recognized causes of action for breach of confidentiality of medical records by health care providers on a variety of bases. The most common basis for recognizing such a cause of action is that health care providers enjoy a special fiduciary relationship with their patients and that recognition of the privilege is necessary to ensure that this bond remains.

         For instance, the Court of Appeals of New York explained that ‘‘in New York, the special relationship akin to a fiduciary bond, which exists between the physician and patient, is reflected in [N.Y. C.P.L.R. 4504 (McKinney 2007)]. The basis of the evidentiary privilege is that patients will be forthcoming and encouraged to provide complete data to assist a medical provider in diagnosis and treatment . . . . An additional motivation for the existence of the privilege is the avoidance of a Hobson's choice for physicians: choosing between honoring their professional obligation with respect to their patients' confidences or their legal duty to testify truthfully. By law and by oath, a physician warrants that any confidential medical information obtained through the relationship will not be released without the patient's permission. The physician-patient relationship thus operates and flourishes in an atmosphere of transcendent trust and confidence and is infused with fiduciary obligations . . . .'' (Citation omitted.) Aufrichtig v. Lowell, 85 N.Y.2d 540, 546, 650 N.E.2d 401, 626 N.Y.S.2d 743 (1995).

         Similarly, the Massachusetts Supreme Judicial Court addressed whether a patient has a nonstatutory, civil remedy against a physician for the disclosure of confidential medical information without the patient's consent in Alberts v.Devine, 395 Mass. 59, 479 N.E.2d 113, cert. denied sub nom. Carroll v.Alberts, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985). In that case, the court recognized that ‘‘[f]ew cases consider the out-of-court physician-patient privilege. That is undoubtedly due to the fact that the confidentiality of the relationship is a cardinal rule of the medical profession, faithfully adhered to in most instances, and thus has come to be justifiably relied upon by patients seeking advice and treatment. . . . Of the courts that have considered the question, most have held that a patient can ...


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