The dispositive issue in this appeal is whether the trial court improperly interpreted General Statutes § 52-184c to require the exclusion of the testimony of an expert witness proffered by the plaintiff trustee in bankruptcy, Michael J. Daly.
On appeal, the plaintiff claims that the trial court improperly: (1) determined that the plaintiff was not entitled under General Statutes § 20-7c to obtain Michelle DiLieto's pathology slides; (2) instructed the jury that the plaintiff had judicially admitted certain facts alleged in both the initial complaint and a subsequent amended complaint; (3) excluded the testimony of the plaintiff's expert witness because the proffered witness was not a "health care provider" licensed in Connecticut; and (4) precluded DiLieto from testifying as to what course of treatment she might have chosen had she been informed that her condition was possibly benign. We conclude that the trial court's exclusion of the testimony of the plaintiff's expert witness was improper, and, accordingly, we reverse the judgment of the trial court and order a new trial against Yale.
The jury reasonably could have found the following facts. In February, 1995, DiLieto sought medical attention because of intense and prolonged bleeding during her menstrual period. DiLieto consulted the defendant
After the D & C was performed, a sample of DiLieto's uterine tissue was sent to Anderson, a pathologist, at Waterbury Hospital. Anderson examined the tissue grossly and microscopically, and consulted with his colleagues. He diagnosed the specimen as a "florid endometrial stromal proliferation consistent with a low grade endometrial stromal sarcoma."
After Casper received the diagnosis over the telephone from another pathologist in Anderson's group, Casper contacted DiLieto and asked that she come to his office to discuss the diagnosis with him in person. Casper, who characterized Anderson's diagnosis as being a definitive finding of malignancy, explained to DiLieto that the pathologist report indicated that she had a stromal sarcoma, a rare uterine malignancy. Casper
Casper consulted with Peter E. Schwartz, a professor of obstetrics and gynecology at Yale, who asked Yale's pathologists to review DiLieto's slides. Yale professors Maria Luisa Carcangiu and Vinita Parkash, both of whom were pathologists, reviewed the slides and agreed that they evidenced endometrial stromal proliferation consistent with endometrial sarcoma. Parkash subsequently presented DiLieto's case to the Yale tumor board, which met once a week and was made up of attending physicians from the divisions of gynecologic oncology, gynecologic pathology and radiation oncology. The tumor board generally attempts to reach a consensus and make recommendations for the appropriate treatment in each case presented to the board.
The tumor board agreed with Anderson's assessment and the independent assessments of Parkash and Carcangiu, but added a third possible condition to the differential diagnosis.
Schwartz subsequently advised Casper of the pathologists' findings and recommended a hysterectomy, a bilateral salpingo-oophorectomy and a pelvic lymph node dissection
Casper then had Schwartz and Babak Edraki, a surgeon, summoned to the operating room to perform the lymph node sampling, which involved the removal of two of DiLieto's lymph nodes. Parkash later examined the excised nodes along with the hysterectomy sample and concluded that the lesion was likely benign.
DiLieto then brought this action against Casper and County Obstetrics, against Yale as the employer of Parkash, Edraki, and Schwartz, and against Anderson. See footnote 2 of this opinion. DiLieto claimed, inter alia, that: Anderson had diagnosed her condition improperly and negligently had failed to inform Casper that her condition was possibly benign; Casper and County Obstetrics negligently failed to diagnose her condition, failed to communicate adequately with Yale, and negligently allowed the lymph node surgery to continue despite the lack of evidence of malignancy; and Parkash, Schwartz and Edraki had diagnosed her condition inaccurately and that their failure to communicate with each other and DiLieto led to the unnecessary performance of the lymph node dissection. The jury returned a verdict for Anderson and Yale, finding that neither had violated the applicable standard of care. The jury was unable to reach a verdict regarding Casper and County Obstetrics. The plaintiff moved for a new trial against all of the defendants and Casper moved for judgment in his favor. The trial court denied both motions and rendered judgment for Anderson and Yale
The plaintiff first claims that the trial court improperly interpreted General Statutes § 52-184c
The following additional facts and procedural history are relevant to the resolution of this claim. The plaintiff disclosed eleven experts in addition to DiLieto's treating physicians. Shepherd, one of these experts, was a London-based gynecological oncologist who had been trained, in part, in the United States. Prior to trial, the defendants moved to exclude Shepherd's expert testimony, contending that he did not meet the criteria required under § 52-184c. The trial court granted the motion to exclude on the basis that § 52-184c incorporates the definition of "health care provider" set forth in § 52-184b (a), which provides that a health care provider means a person "licensed by this state to provide health care or professional services...." Shepherd therefore did not testify at trial.
"The process of statutory interpretation involves a reasoned search for the intention of the legislature. Frillici v. Westport, [231 Conn. 418, 431, 650 A.2d 557 (1994)]. In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.... Bender v. Bender, [258 Conn. 733, 741, 785 A.2d 197 (2001)]. Thus, this process requires us to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds of ambiguity. Thus, we do not follow the plain meaning rule.
"In performing this task, we begin with a searching examination of the language of the statute, because that is the most important factor to be considered. In doing
"This does not mean, however, that we will not, in a given case, follow what may be regarded as the plain meaning of the language, namely, the meaning that, when the language is considered without reference to any extratextual sources of its meaning, appears to be the meaning and that appears to preclude any other likely meaning. In such a case, the more strongly the bare text supports such a meaning, the more persuasive the extratextual sources of meaning will have to be in order to yield a different meaning." (Emphasis in original; internal quotation marks omitted.) State v. Courchesne, 262 Conn. 537, 577-78, 816 A.2d 562 (2003).
We begin our analysis with an examination of the language of the statute. Section 52-184c addresses the standard of care and the qualifications of testifying experts in medical malpractice actions.
"[S]ubsection (d) of § 52-184c prescribes qualifications for expert witnesses in negligence actions against health care providers. Under that subsection, there are two ways for an expert to qualify to testify in an action against a specialist. The proposed expert may testify against a specialist if he or she is a similar health care provider pursuant to subsection ... (c). ... General Statutes § 52-184c (d). Alternatively, if the expert does not satisfy the requirements of subsection (c), he still may testify if he, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine.... General Statutes § 52-184c (d)." (Emphasis in original; internal quotation marks omitted.) Grondin v. Curi, supra, 262 Conn. 650-51.
Section 52-184c (a) provides that in actions claiming injury or death as a result of "the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving ... a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers." (Emphasis added.) The term "health care provider" as used in the initial sentence of § 52-184c (a) thus refers to the defendant health care provider, the party against whom the claim of
Section 52-184c (b) establishes the standard of care for defendant health care providers who are not specialists by defining the identity of a "similar health care provider" when the defendant is not a specialist. It is important to note that § 52-184c (b) specifically provides that a "similar health care provider" must be licensed by the appropriate licensing agency "of this state or another state. ..." (Emphasis added.) Section 52-184c (c) establishes the standard of care for defendant health care providers who are specialists by defining the identity of a "similar health care provider" with reference to a defendant who is not a specialist. Section 52-184c (d), which sets forth the requirements for who may testify as an expert in medical malpractice actions, provides that an expert may testify if he or she is a similar health care provider as defined in subsections (b) or (c), or possesses certain other qualifications that are set forth in § 52-184c (d) (2).
Our examination of the language of § 52-184c reveals that the statute consistently addresses two different types of health care providers. The first is the "defendant health care provider," that is, a health care provider against whom the plaintiff makes a claim of professional negligence. The second type is the "similar health care provider." A similar health care provider is identified as both the professional with reference to whom the applicable standard of care is established, as set forth in § 52-184c (a), (b) and (c), and as the expert who may testify as a witness, as set forth in § 52-184c (d). The definition of health care provider found in § 52-184b is incorporated into § 52-184c only in subsection (a) with reference to a defendant health care provider. There is no explicit incorporation of the definition in § 52-184b with reference to a similar health care provider anywhere
This interpretation is bolstered by the express provision in § 52-184c (b) that a similar health care provider may be licensed in "another state." The incorporation of the definition of health care provider found in § 52-184b, which requires Connecticut licensing, into the term "similar health care providers" throughout § 52-184c would create an explicit inconsistency with § 52-184c (b), which specifically permits similar health care providers as defined in that subsection to be licensed in other states. We therefore conclude that the definition of health care provider in § 52-184b applies in § 52-184c only with reference to a defendant health care provider and not with reference to a similar health care provider.
Our conclusion is consistent with our interpretation of § 52-184c in a recent case. In Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 9, 698 A.2d 795 (1997),
The interpretation of § 52-184c urged by the defendants, which we reject, would effect a radical change in the trial of medical malpractice cases in this state because it would preclude expert testimony by any medical expert who is not licensed in Connecticut.
In Grondin v. Curi, supra, 262 Conn. 637, we addressed the legislative history of § 52-184c. "We note that, although the legislative history is silent about the legislature's intent as to [the process of qualifying experts in medical malpractice cases] ... [§] 52-184c was enacted by Public Acts 1986, No. 86-338, § 11, which is popularly known as Tort Reform I. It was not intended to alter dramatically the scope of what constitutes the standard of care in a medical malpractice case or who qualifies to testify about that standard. According to Senator Richard Johnston, then chairman of the judiciary committee when the legislature enacted Public Act 86-338, § 52-184c `codif[ies] the standard of care as it has been developed through common law and [Connecticut] case law. ...' 29 S. Proc., Pt. 10, 1986 Sess., pp. 3479-80 (explaining statutory phrase `in light of all relevant surrounding circumstances'). In explaining the bill, Representative William Wollenberg stated that `what they are trying to set out here is that the witnesses shall be of similar training in similar specialties and so on so that you have ... witnesses who have ... similar qualifications of that person who is accused.' 29 H.R. Proc., Pt. 16, 1986 Sess., pp. 5739-40. Our review of the sparse legislative history leads us to conclude that the legislature did not intend § 52-184c to impose drastic changes on the existing standards of care or the process of qualifying experts in medical malpractice cases." (Emphasis added.) Grondin v. Curi, supra, 652-53.
The postenactment report of the law revision commission provides further support for our conclusion that in enacting § 52-184c, the legislature did not intend significant changes in qualifying expert medical witnesses to testify. "In large part, [§ 52-184c] restates and
Because of our conclusion that § 52-184c incorporates the definition of health care provider from § 52-184b only with reference to defendant health care providers and not with reference to similar health care providers, we further conclude that the trial court improperly precluded the testimony of Shepherd because he is not a licensed physician in Connecticut. This conclusion, however, does not end our inquiry. We next must determine whether the exclusion of Shepherd's testimony was harmless.
"It is axiomatic that not every error is harmful." Rossi v. Stanback, 230 Conn. 175, 180, 644 A.2d 352 (1994).
The plaintiff asserts that the trial court's preclusion of Shepherd's testimony prevented the plaintiff from establishing the prevailing standard of care. Specifically, the plaintiff contends that Shepherd's testimony would have established that the defendants should have attempted to confirm the diagnosis of a malignancy through the use of various diagnostic imaging methods before subjecting DiLieto to a total hysterectomy. In response, the defendants assert that Shepherd's testimony would have been cumulative of testimony given by two of the plaintiff's experts, Arthur D. Cromartie, an obstetrician-gynecologist, and Duane E. Townsend, a gynecological oncologist. We agree with the plaintiff and determine that the trial court's exclusion of Shepherd's testimony would likely have affected the outcome of the trial and therefore was harmful.
At trial, the plaintiff maintained that DiLieto's unusual uterine bleeding was caused by a highly cellular leiomyoma. The plaintiff intended to call Shepherd to testify that the prevailing standard of care required more thorough investigation of DiLieto's condition by the defendants, specifically, through the use of noninvasive imaging techniques, prior to performing a hysterectomy. Shepherd, a gynecologist and oncologist, had familiarity with the use of magnetic resonance imaging (MRI), color Doppler imaging, transvaginal ultrasound and hysteroscopy, and would have testified that these
Shepherd's testimony concerning the use of imaging was not cumulative of the testimony of Cromartie and Townsend. Our review of the record reveals, as the defendants concede in their brief, that neither Cromartie nor Townsend professed to have a clear understanding of the effectiveness of imaging studies and neither offered detailed information about what might have been revealed through the use of MRI, color Doppler or transvaginal ultrasound. Shepherd, on the other hand, was prepared to testify in detail about the findings that would have resulted from transvaginal ultrasound, MRI and color Doppler scanning. We further note that both Townsend and Cromartie focused on Casper's role in the diagnosis of DiLieto's condition, while Shepherd was prepared to discuss the failings of both Casper and the Yale physicians. We therefore conclude that the trial court's improper preclusion of Shepherd's testimony likely affected the result of the trial, and, accordingly, was not harmless.
We address the plaintiff's remaining claims because they are likely to arise again at the new trial. The plaintiff next claims that the trial court improperly denied his request, as DiLieto's bankruptcy trustee, for access to DiLieto's tissue slides and test results pursuant to General Statutes § 20-7c.
The following additional facts are necessary for the resolution of this claim. After learning that Yale had done further "recuts" of DiLieto's original tissue block,
Resolution of this issue requires us to determine whether a trustee in bankruptcy who has been substituted as the plaintiff in a medical malpractice case may exercise the patient's rights to her pathology slides pursuant to § 20-7c. As with all matters involving statutory interpretation, our review is plenary. State v. Valedon, supra, 261 Conn. 385-86; Connor v. Statewide Grievance Committee, supra, 260 Conn. 439.
We begin our analysis with the text of the statute in question, which provides in relevant part: "Upon a written request of a patient, his attorney or authorized representative ... a provider ... shall furnish to the person making such request a copy of the patient's health record, including but not limited to ... laboratory reports. ..." General Statutes § 20-7c (b). We previously have construed the term "health record" broadly and have concluded that pathology slides are a part of a patient's health record pursuant to § 20-7c. See, e.g., Cornelio v. Stamford Hospital, 246 Conn. 45, 59, 717 A.2d 140 (1998) ("[t]he legislature's intent to preserve reasonable access for a patient to that patient's health records counsels against a narrow construction of `health record'").
Section 20-7c does not define the term "authorized representative." We note that the plain language of § 20-7c (b) indicates that access to a patient's health record is not limited to the patient herself. The record may be provided to the patient's attorney, authorized representative
We previously have determined that the general purpose of § 20-7c was "principally but not exclusively, to provide patients a right to examine and to obtain copies of their health records prior to the initiation of malpractice litigation. See Conn. Joint Standing Committee Hearings, Public Health, Pt. 1, 1983 Sess., p. 170, remarks of Jackie Coleman, assistant executive director of the Connecticut Psychiatric Society; id., pp. 198-99, remarks of Brett Flamm." Cornelio v. Stamford Hospital, supra, 246 Conn. 56. The legislative history of the statute sheds no light, however, on the proper interpretation of the term "authorized representative." We turn, therefore, to the Bankruptcy Code; 11 U.S.C. § 101 et seq.; to determine whether its provisions concerning the scope of the authority exercised by a trustee in bankruptcy assist us in determining whether the trustee is an authorized representative of the debtor — here, DiLieto — for purposes of gaining access to the debtor's health records pursuant to § 20-7c.
We begin with 11 U.S.C. § 323 (a), which provides: "The trustee in a case under this title is the representative of the estate." "Although the trustee is not vested with the title of the debtor under the [Bankruptcy Code], by section 323 (a) the trustee is given full authority to represent the estate and to dispose of the debtor's property that makes up the estate. This language indicates that the trustee is the sole representative of the estate, represents all the creditors of the estate generally and is entitled to administer the property of the estate wherever located." 3 W. Collier, Bankruptcy
Section 704 of the Bankruptcy Code sets forth a trustee's duties, which include in part that "[t]he trustee shall—(1) collect and reduce to money the property of the estate for which such trustee serves, and close such estate as expeditiously as is compatible with the best interests of parties in interest . . . ." 11 U.S.C. § 704. The term "[p]roperty of the estate" is defined in 11 U.S.C. § 541 (a), which provides in relevant part: "The commencement of a case . . . creates an estate. Such estate is comprised of all the following property, wherever located and by whomever held . . . (1) Except as provided in subsections (b) and (c) (2) of this section, all legal or equitable interests of the debtor in property as of the commencement of the case. . . ." "Paragraph (1) [of 11 U.S.C. § 541 (a)] is broad. It includes all kinds of property, including both tangible and intangible property, causes of action, and all other forms of property." 5 W. Collier, supra, ¶ 541.04, p. 541-12.
This review of a trustee's authority under the Bankruptcy Code reveals that he is the representative of the debtor's estate, which consists of all of the debtor's property, including causes of action. The trustee also represents the creditors of the estate. We find no support in the Bankruptcy Code, however, for the premise that the bankruptcy trustee is the debtor's authorized representative or that he acquires personal rights of the debtor such as the right to examine her health records. Furthermore, we note that § 20-7c deals with an individual's health records. Thus, it involves particularly personal and sensitive material. This factor counsels strongly against interpreting "authorized representative" in such a way as to include persons or entities who are not closely associated with the "patient" whose records are sought.
The plaintiff next claims that the trial court improperly instructed the jury that the plaintiff judicially had admitted that the announcement of the frozen section analysis results came before Edraki commenced the pelvic lymph node surgery. We agree.
The following additional facts are necessary to an understanding and the resolution of this issue. In her original complaint, DiLieto alleged that the results of the frozen section analysis were announced before the
Through deposition testimony, the plaintiff learned of conflicting evidence as to the timing of the announcement of the frozen section analysis and amended the complaint to omit the specific allegation that the surgery occurred after the surgeons had received the frozen section results. The plaintiff amended the complaint to read as follows: "During the course of the above-referenced procedure, no evidence of endometrial stromal sarcoma was observed and a report was communicated to [Casper], indicating that no evidence of endometrial stromal sarcoma was found during an intraoperative frozen section analysis. Despite what was observed during the hysterectomy procedure and despite the absence of evidence of endometrial stromal sarcoma on the frozen section analysis . . . [Edraki] surgically removed pelvic lymph nodes from [DiLieto] . . . ."
The plaintiff maintained at trial and claims on appeal that the amended allegation allowed for Casper and Edraki to have learned the results of the frozen section either before or after beginning the surgery to remove DiLieto's lymph nodes. The trial court, however, construed both versions of this allegation as having the same meaning and determined that the plaintiff judicially had admitted the facts as alleged. The trial court therefore instructed the jury that the plaintiff was bound to a theory of negligence with regard to the lymph node dissection that Edraki knew of DiLieto's lack of
The plaintiff's claim implicates the trial court's construction of the pleadings. "[T]he interpretation of pleadings is always a question of law for the court. . . ." (Internal quotation marks omitted.) Grimes v. Housing Authority, 242 Conn. 236, 249, 698 A.2d 302 (1997). Our review of the trial court's interpretation of the pleadings therefore is plenary.
We note that "[t]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically." (Emphasis in original; internal quotation marks omitted.) Id. "[T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 83, 700 A.2d 655 (1997).
In the present case, the plaintiff amended the complaint to allow for a finding of negligence despite conflicting versions of the timing of the announcement of
The plaintiff next claims that the trial court improperly excluded as speculative proposed testimony by DiLieto regarding what she might have done differently had she been told that her condition possibly was benign. More specifically, the plaintiff claims that the trial court misinterpreted Burns v. Hanson, 249 Conn. 809, 734 A.2d 964 (1999), as requiring the preclusion of DiLieto's testimony, which was relevant to causation. In response, the defendants assert, inter alia, that the trial court properly excluded DiLieto's testimony because she lacked prior experience with the hysterectomy procedure, a requirement that the defendants found in their reading of Burns. We agree with the plaintiff.
The following undisputed facts guide the resolution of this claim. Before trial, the plaintiff indicated that
We begin our analysis of this issue by setting forth the governing standard of review. "On appeal, we must accord the trial court's evidentiary rulings great deference.. . . Indeed, we will make every reasonable presumption in favor of upholding [those] ruling[s] . . . [upsetting them only] for a manifest abuse of discretion." (Citation omitted; internal quotation marks omitted.) State v. Whitford, 260 Conn. 610, 636, 799 A.2d 1034 (2002).
"It is axiomatic that [e]vidence is admissible only to prove material facts, that is to say, those facts directly in issue or those probative of matters in issue; evidence offered to prove other facts is immaterial." (Internal quotation marks omitted.) Salmon v. Dept. of Public Health & Addiction Services, 259 Conn. 288, 316, 788 A.2d 1199 (2002). We note, however, that "evidence is admissible if it has a tendency to support a fact relevant to the issues if only in a slight degree." (Internal quotation marks omitted.) Burns v. Hanson, supra, 249 Conn. 825.
In Burns, we addressed the admissibility of arguably speculative testimony in a medical malpractice case. The plaintiff, a woman suffering from severe multiple
We reversed the ruling of the trial court, concluding that "the plaintiff's testimony as to what she would have done had the defendant advised her that she was pregnant was not speculative but, rather, was based on her personal knowledge. The plaintiff was not coming to the issue afresh on the witness stand. She had personal experience with deciding to terminate a pregnancy, having undergone an abortion many years earlier when she was an unmarried teenager. In accordance with medical advice concerning her progressive multiple sclerosis, the plaintiff and her husband had made the conscious decision not to have another child. The plaintiff's life experiences made her an appropriate witness to inform the jury about her choices. While her answer, had she been permitted to give one, might have been self-serving, it would not have been speculative. As we [previously have] explained . . . [w]hether the jury would have credited such testimony is not the issue before us; the question, rather, is whether the testimony was reasonably likely to have assisted the jury . . . ." (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 826.
In the present case, the trial court interpreted our ruling in Burns as requiring that an individual have personal experience with a particular procedure before being able to testify as to whether he or she would have
The trial court, having first determined that DiLieto's proposed testimony was unduly speculative, did not address Yale's objection regarding the relevance of such testimony. We, therefore, address the question of whether DiLieto's proposed testimony was relevant to a material issue. We determine that although her testimony would not have been dispositive, DiLieto's proposed testimony was indeed relevant to the issue of causation. Hearing what course of treatment DiLieto would have pursued had she known that her condition was possibly benign would have been helpful to the jury in evaluating the plaintiff's claim that a failure to communicate the differential diagnosis to DiLieto led, in part, to the performance of unnecessary surgery.
We next address the applicability of the plaintiff's claims to Anderson, the pathologist who performed the initial examination and diagnosis of the tissue from the D & C performed on DiLieto. The plaintiff claims that any determination of harmful impropriety with regard to any issue raised in this appeal would entitle the plaintiff to a new trial against all of the remaining defendants, including Anderson. In response, Anderson asserts that only the last of the plaintiff's claims — that the trial court improperly precluded DiLieto's testimony
At the conclusion of the evidence and after the charge to the jury, the trial court submitted interrogatories for the jury to answer. The first interrogatory, in separate subparts, asked the jury whether each of the defendants was professionally negligent. The jury responded that Anderson was not negligent, and returned a verdict in his favor.
We concluded in part IV of this opinion that the trial court improperly precluded DiLieto's testimony as to what she would have done had she known that her condition possibly might have been benign. We further concluded that her testimony was relevant to the issue of causation. Because the jury found that Anderson was not negligent, the jury never reached the issue of causation with regard to Anderson's alleged negligence. The preclusion of DiLieto's testimony about causation therefore had no bearing with regard to Anderson, and was not harmful with regard to the claim against him.
The judgment of the trial court is reversed only with respect to Yale and the case is remanded for a new trial against that defendant; the judgment of the trial court is affirmed in all other respects.
In this opinion BORDEN and PALMER, Js., concurred.
ZARELLA, J., with whom SULLIVAN, C.J., joins, concurring in part and dissenting in part.
I concur in the
In part II of its opinion, the majority concludes that a trustee in bankruptcy who has been substituted as a plaintiff for a bankruptcy debtor in a medical malpractice action may not have access to pathology slides of the debtor's tissue and any accompanying pathology reports pursuant to General Statutes § 20-7c. More specifically, the majority concludes that a bankruptcy trustee is not the debtor's "authorized representative" for purposes of § 20-7c and, consequently, cannot have access to the debtor's medical records, which, in the present case, include slides of the debtor's uterine tissue and reports generated in connection with the analysis of that tissue. I disagree with the majority's conclusion based on the language of § 20-7c, relevant state law and bankruptcy law.
The majority concludes that the plaintiff trustee, Michael J. Daly, is not the "authorized representative" of the named plaintiff debtor, Michelle DiLieto, for purposes of § 20-7c and, therefore, is not entitled to access, inter alia, slides of DiLieto's tissue pursuant to that statute. General Statutes § 20-7c provides in relevant part: "(b) Upon a written request of a patient, his attorney or authorized representative, or pursuant to a written authorization, a provider . . . shall furnish to the person making such request a copy of the patient's health record . . . ."
The majority notes that § 20-7c does not define the term "authorized representative," and that the legislative history sheds no light on the proper interpretation of that term.
Federal courts have held that "[t]he appointment of a Chapter 7 trustee results in his becoming the sole representative of the [debtor's] estate." Nova Telecom, Inc. v. Long Distance Management Systems, Inc., No. 00-2113, 2000 U.S. Dist. LEXIS 15510, *13 (E.D. Pa. October 25, 2000). "The primary duty of the chapter 7 trustee is to collect and reduce to money property of the estate. . . ." (Internal quotation marks omitted.) In re Bowker, 245 B.R. 192, 195 (Bankr. D.N.J. 2000), quoting 11 U.S.C. § 704 (1) (2000). "[A] bankruptcy estate encompasses a wide variety of assets. See 11 U.S.C. § 541 (a) (1994). It includes . . . all legal or equitable interests of the debtor in property as of the commencement of the case . . . as well as any interest in property that the estate acquires after the commencement of the case . . . [11 U.S.C. § 541 (a) (1) and (7) (1994)]. These provisions have been interpreted broadly, and include an interest in a cause of action." (Citation omitted; internal quotation marks omitted.) Kollar v. Miller, 176 F.3d 175, 178 (3d Cir. 1999); see also H.R. Rep. No. 95-595, p. 175 (1978), reprinted in 1978 U.S.C.C.A.N. 5963, 6136 (under Bankruptcy Reform Act of 1978, codified as amended at 11 U.S.C. § 101 et seq., debtor's estate
One can deduce from the foregoing principles that, by stepping into the shoes of the debtor for the purpose of maintaining a cause of action, the trustee acquires all the necessary rights and powers, including personal rights, related to the cause of action. Indeed, the bankruptcy trustee, by standing in the shoes of the debtor, "has all of the rights the bankrupt [debtor] had"; (emphasis added) In re Urban, 136 F.2d 296, 298 (7th Cir. 1943); and is "vested with the causes of actions pending at the date of filing the bankruptcy . . . and with the [debtor's] personal property . . . ." (Citations omitted.) Skelton v. Clements, 408 F.2d 353, 354 (9th Cir. 1969). Moreover, in order to promote the effectuation of the fundamental purposes of the code, "it is necessary and desirable that the amount of property included in the bankruptcy estate be as inclusive as possible." 5 W. Collier, Bankruptcy (15th Rev. Ed. 2003) ¶ 541.01, p. 541-7. In my view, therefore, the majority's conclusion that the code only provides the trustee with limited rights and powers, which do not include personal rights, such as the right to access medical records in furtherance of the prosecution of a medical malpractice claim,
Furthermore, the majority appears to base its decision on the conclusion that § 20-7c creates a personal right to obtain medical records that is not subject to exercise by the trustee. The majority offers no support for this conclusion, however. The majority states that "§ 20-7c deals with an individual's health records. Thus, it involves particularly personal and sensitive material. This factor counsels strongly against interpreting `authorized representative' in such a way as to include persons or entities [that] are not closely associated with the `patient' whose records are sought."
I do not dispute the fact that information contained in medical records is of a personal and sensitive nature. The majority, however, loses sight of the fact that, under well settled principles of bankruptcy law, a trustee is designated as the debtor's "authorized representative" for purposes of asserting and maintaining the debtor's causes of action. In my view, a "patient" cedes any right he may have in preventing the trustee from gaining access to his medical records by filing for bankruptcy when his estate includes a cause of action for medical malpractice to which those medical records pertain. Under such circumstances, the medical records of the patient/debtor lose, at least to some degree, their status as purely personal records.
In sum, I disagree with the majority's conclusion that the right to access medical records under § 20-7c is so personal to the debtor that it does not transfer to the trustee as a necessary part of trustee's authority to assert and maintain the debtor's cause of action for medical malpractice.
"(b) If the defendant health care provider is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a `similar health care provider' is one who: (1) Is licensed by the appropriate regulatory agency of this state or another state requiring the same or greater qualifications; and (2) is trained and experienced in the same discipline or school of practice and such training and experience shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.
"(c) If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a `similar health care provider' is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a `similar health care provider'.
"(d) Any health care provider may testify as an expert in any action if he: (1) Is a `similar health care provider' pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim."
"(b) Upon a written request of a patient, his attorney or authorized representative, or pursuant to a written authorization, a provider, except as provided in section 4-194, shall furnish to the person making such request a copy of the patient's health record, including but not limited to, bills, x-rays and copies of laboratory reports, contact lens specifications based on examinations and final contact lens fittings given within the preceding three months or such longer period of time as determined by the provider but no longer than six months, records of prescriptions and other technical information used in assessing the patient's health condition. No provider shall charge more than forty-five cents per page, including any research fees, handling fees or related costs, and the cost of first class postage, if applicable, for furnishing a health record pursuant to this subsection, except such provider may charge a patient the amount necessary to cover the cost of materials for furnishing a copy of an x-ray, provided no such charge shall be made for furnishing a health record or part thereof to a patient, his attorney or authorized representative if the record or part thereof is necessary for the purpose of supporting a claim or appeal under any provision of the Social Security Act and the request is accompanied by documentation of the claim or appeal. A provider shall furnish a health record requested pursuant to this section within thirty days of the request. ..."