*1 HEALTH AFFAIRS POLICY DIRECTOR OF OF CONNECT- PLANNING, UNIVERSITY HEALTH CENTER v. FREEDOM ICUT COMMISSION OF INFORMATION (SC 18286) Vertefeuille, McLachlan, Norcott, Palmer, Js. Zarella and officially 25, Argued August March 24 released *2 whom, on attorney, with Brown, principal Tracie C. principal attorney, Perpetua, Victor brief, were appellant for the counsel, Murphy, general Colleen (defendant). attorney general, Comerford, D. assistant
Jane attorney Blumenthal, brief, was Richard whom, on the appellee (plaintiff). for the general,
Opinion appeal in this dispositive issue McLACHLAN,J. The plaintiff, held whether certain records is the Univer- policy planning for of health affairs director exempt from Center,1 are sity of Connecticut Health (act), of information act under the freedom disclosure pursuant to General seq., Statutes 1-200 et § General pro- protects peer which (d), 19a-17b § Statutes into evidence discoveiy and introduction ceedings from defendant, the freedom of informa- in a civil action.2 The judg- from the appeals (commission), tion commission court; appeal plaintiffs sustaining ment of the trial appeal, proceedings underlying points this both the At various University policy planning and of Connecticut of health affairs director convenience, plaintiff. we refer to as the For Health Center were identified opinion. plaintiff as the in this both part: proceed (d) provides in relevant “The § Statutes General conducting peer review shall not be ings of a medical review committee any subject evidence in civil action for or to or introduction into provider arising against matters which are out of the a health care person committee, who was in and no evaluation and review such permitted required meeting at of such committee shall attendance testily . . . .” action as to the content of such such civil appeal,
from the final decision of the commission.3 On the commission that the trial court improperly claims requested exempt records were concluded pursuant disclosure 19a-17b. commission also improperly claims that the trial court concluded that requested exempt four of the records were from disclo- pursuant sure 60.13 of title 45 of the Code of (a) Federal Because we conclude that 19a- Regulations.4 inapplicable and, 17b is to commission proceedings, we therefore, inapplicable, that 45 C.F.R. 60.13 also reverse the of the trial court. judgment
The final decision of the commission sets forth the *3 procedure. complain- relevant facts and The following patient a ant, Russo, Zamstein, Louis J. former of Jacob a physician, requested writing records to pertaining plaintiffs the decision not to renew Zamstein’s clinical response, plaintiff produced In the minutes privileges. of of clinical affairs meetings four the subcommittee University of the of Connecticut Health Center board directors, produce but declined to the remainder requested records, plaintiff which the claimed comprised the file created the clinical credentialing affairs subcommittee and the credentials committee. a complainant complaint then filed with the com- pursuant mission disclosure of the records to seeking act. a the commis- Following hearing matter, on 3 appealed judgment The commission from the of the trial court to the Appellate Court, appeal pursuant and we transferred the to this court (c) § § General Statutes 51-199 and Practice Book 65-1. provides: (a) Regulations title 45 the Code of Federal Section 60.13 reported “Limitations on disclosure. Information to the Prac [National Data Bank considered confidential and shall not be disclosed is titioner] Department Services, except specified outside the of Health and Human 60.10, in § § and§ 60.11 60.14. Persons and entities which receive information directly Data Bank either or from another [National Practitioner] solely provided. party respect was must use it for which it prevent Nothing paragraph shall the disclosure of information this applicable party law which is authorized under to make such dis [s]tate closure.” public agency is a plaintiff that concluded
sion requested (A); 1-200 (1) meaning § within the meaning of Gen- within the are records records 1-212 the clinical (a);5 1-210 (a) Statutes §§ eral committee are the credentials subcommittee and affairs of 19a- meaning within the § committees medical review concern requested records and the (a) (4); 17b concluded, however, that also review.6 The commission only “civil actions” and applicable 19a-17b (d) dis- seeking before the commission not to Therefore, the commission to the act. pursuant closure an provide does not (d) concluded 1- mandatory pursuant §§ disclosure exemption to rejected also 1-212 The commission (a) (a). requested records— claim that four of the plaintiffs and IC- IC-2006-098-23 through labeled IC-2006-098-20 exempt pursuant from disclosure 2006-098-33—were claim, plaintiffs In (a). rejecting 45 C.F.R. 60.13 of 45 C.F.R. relied on the last sentence the commission in this provides: “Nothing paragraph 60.13 which (a), by party the disclosure of information prevent shall law to applicable which is authorized under [s]tate the act author- Reasoning disclosure.” make such *4 disclosure, make the the commis- plaintiff ized the to provide did not (a) concluded that 45 C.F.R. 60.13 § sion 5 “Except part: (a) provides in relevant as other General Statutes 1-210 statute, provided by records maintained wise federal law or state all kept by any public agency, are on whether or not such records or file by any required by any regulation, shall be records law or rule or every inspect promptly person right (1) have the to such records shall hours, (2) copy during regular office or business such records accordance 1-212, copy (g) (3) of such records with subsection of section or receive with section 1-212. . . .” in accordance provides part: “Any person (a) § 1-212 in relevant General Statutes request, plain applying writing receive, promptly upon or certified shall copy any public of record. . . .” finding requested based its records concern The commission by forty-two produced peer records review on its in camera review of the plaintiff upon the commission’s order. Accordingly, exemption to the act.7 the commission an. complainant plaintiff provide ordered the copies exception requested records, with the determined were records that the commission had three exempt (b) (10) under 1-210 because from disclosure requests legal for advice and those records constituted responses thereto. plaintiff appealed from the decision of the com
The
appeal,
court,
the trial
which sustained the
mission to
exemption
(d)
concluding
constituted an
that 19a-17b
analysis,
act. In its
the trial
to disclosure under the
heavily
public policy
on
reasons under
court relied
namely,
peer
privilege,8
encourage
lying
“to
and criticism
frank,
discussion,
uninhibited
debate
provider”
peers
during
of a health care
by encouraging
proceedings,
candor,
that level of
and,
quality
patient
improve the
care. Commissioner
App. 577, 582,
17 Conn.
Kadish,
Health Services
of
utory mandatory disclosure under the exemption to inappli- (d) The commission contends that § pursuant cable to the act because meaning civil within the act do not constitute actions We with the commission. (d). agree of 19a-17b provides part: in relevant “The (d) Section 19a-17b conducting of a medical review committee intro- subject shall not be or any for or against duction into evidence civil action which provider a health care out of the matters arising committee, are to evaluation and review such person meeting and no who was attendance at a testify permitted required such committee shall be pro- such civil action as to the content of such . . .” In ceedings interpret language . order to this *6 170 peer
mean that
the
review
bars disclosure
privilege
pursuant
act,
we would have to conclude that
legislature
phrase
subject
the
intended the
“shall not be
discovery
any
...
in
action,”
civil
to include in its
to disclosure ...
in any
meaning
subject
“shall not be
action
the commission." This
presents
two
before
closely
questions:
related
in
legislature,
whether
enacting
(d),
19a-17b
intended for the term “discov-
ery”
pursuant
to include disclosure
to the act, and
phrase
intended for the
“in
civil
action”
include
actions before the commission. Both of these
ques-
are
statutory
tions of
construction and therefore are
review. Barton v. Bristol,
plenary
84, 97,
291 Conn.
In contrast, the concept of “disclosure” is related to policy overarching legislative which “[t]he [act]” open favors “the conduct of government public and free access to records.” government (Internal quotation marks Perkins v. omitted.) Freedom of Information apply indepen- . . . does not to those [T]he documents that were dently acquired.” quotation (Internal omitted.) Id., recorded or marks 822. words, privilege applies In other “to the substantive discourse that takes place meetings during at the actual which ‘matters which are committee,’ evaluation and review such are discussed and deliber- ated.” Id. practice discovery “any pro The rules of allow for civil action . . . appeal, appeal judicial authority bate or . . . administrative where the finds reasonably probable required it that evidence outside the record will be § . . . .” Practice Book 13-2. Some of the available tools of include interrogatories; production 13-6; requests; § see Practice Book see Practice 13-9; depositions; 13-26; subpoenas. Book see Practice Book See (subpoenas). General Statutes 52-143 158,
Commission,
166,
(1993).
228 Conn.
upon
act does not confer
We have
that “the
recognized
government
an absolute
to all
informa-
right
Commission,
tion.” Wilson Freedom of Information
Instead,
328,
“introduction
is,
“civil action.” That
phrase
of the
understanding
the
scope
the
defines
(d)
“subject
being
exempting
any
into evidence in
civil
introduction
or
the use of
already
noted,
have
. . . As we
action
evidence,”
into
“discovery” and “introduction
the terms
the
signify
the term “civil action”
together
within the
apply
that the privilege
intended
legislature
in a civil matter.
of a court action
context
by our case law
supported
both
interpretation
This
statutory
of civil action in
definition
interpreting the
statutory
Statutes,
by
52 of the General
title
defining
employed
language
both to civil actions
other
to extend
scope
privileges
agencies.
before
administrative
in 19a-
is no definition of “civil action”
there
Although
Statutes,
of the General
it is defined in title 52
17b,
Specifically, General Stat-
civil actions.
governs
which
shall
part
in relevant
provides
utes 52-91
“[t]here
on the
pleading
action. The first
be one form of civil
complaint
shall be known as the
part
plaintiff
of the
constituting
of the facts
and shall contain a statement
separate page
and,
of action
on
the cause
be a
relief,
for the
which shall
complaint, a demand
remedy
sought.”
or remedies
Addition-
statement of the
procedures
52-45a sets forth the
General Statutes
ally,
“Civil
of a civil action:
the commencement
governing
process consisting
legal
actions shall be commenced
attachment,
describing
writ of
of a
summons
returnable,
it is
the return
the court to which
parties,
appearance
of an
place
filing
date and
for
day, the
by the Office of the Chief
required
information
accompanied by
The writ shall be
Court Administrator.
may
The writ
run into
complaint.
plaintiffs
by a commissioner
and shall be
judicial
signed
district
or clerk of the court
judge
Court or a
Superior
*10
and 52-
In
52-91
applying §§
which it is returnable.”
consti-
statutory proceeding
45a to determine whether
whether the
action, we have considered
tutes a civil
as
by
complaint,
of a
filing
action was commenced
by
process
of
as
it was commenced
service
well whether
Education
by rules of
Board
pleading.
or controlled
544, 558, 888
Center, 276 Conn.
v. Tavares Pediatric
proceeding
Island administrative
(2006) (Rhode
A.2d 65
Waterbury Waterbury
not civil
see also
action);
407-408,
Moreover, concluded necessarily ing before an administrative is a agency question civil action. of whether such a Although under no proceeding could circumstances constitute today—and civil expressly action is not before us we do not decide that issue—we note that administrative appeals, which are heard in first instance Superior Court, only are deemed to be civil actions under some circumstances. See Practice Book 14-6 appeals (administrative purposes civil actions for practice, purposes rules of but not for of certain enu- merated statutes);11 see also Commissioner Health provides: purposes rules, Practice Book 14-6 “For of these administra appeals actions, tive are civil actions. Whenever these rules refer to civil actions, causes, cases, civil causes or shall reference include administra appeals except (a) appeals superior judgments tive that: court only appeals provided by in administrative shall be certification as General amended, chapter rules; (b) Statutes 51-197b 72 of these appeal purposes an administrative shall not be deemed an action for 52-591, §§ General Statutes 52-592 or 52-593.” *11 App. (inves- 580-81 Kadish, supra, Conn.
Services purely services was of health by commissioner tigation proceed- proceeding, not investigatory administrative of purposes action for and thus not civil court, ing 38-19a]). § at General Statutes codified [then before an proceeding then, underlying Certainly, court—may be than a agency—rather administrative legisla- evidence of such only action if the deemed a civil lacking is That evidence strong. tive intent present case. act are not commenced
Proceedings pursuant by appeal a notice of process, filing but by service pro which (1), 1-206 (b) to General Statutes pursuant person right denied the part “[a]ny vides relevant may . . 1-210 . copy records under inspect [§] of Information Com to the Freedom appeal therefrom with said commis by appeal a notice of mission, filing often appeals to the commission Although sion. . . .” adopted complaints, regulations are referred to as “ ” appeal “an ‘[c]omplainf by the commission define stat general under to the commission [§ 1-206] 1-21j-1 (4). Agencies (b) Conn. State Regs., utes.” then receipt appeal, of the notice of commission, upon registered certified or upon parties, all “shall serve other copy together of such notice mail, a Statutes such commission.” General notice or order of the commis Moreover, actions before 1-206 (b) (1). Certainly, by the rules of pleading. are not governed sion governed commission are before the proceedings Agen Conn. State procedure. Regs., See formal rules formality how alone, Procedural seq. et cies § 1-21J-1 proceeding an administrative does not convert ever, branch into a by an of the executive agency conducted Any superficial in a court of law. action conducted civil pro procedural governing rules similarities between and court actions the commission before ceedings obvious difference cannot overcome the a civil case within two distinct place take that the two separate government. branches statutes confirms that privilege to other Reference phrase to use the “civil did not intend the commission. include before action” to list civil actions Virtually all of the statutes *12 separate contexts as proceedings and administrative example An illustrative privilege applies. in which General very chapter in same as 19a-17b. appears § pro- the information provides Statutes 19a-25 § pur- health “for the department cured any morbidity mortality or pose of reducing be condition, shall be confidential and shall cause or solely purposes of medical or scientific used for the specifies research . . . .” Section 19a-25 “[s]uch . . . shall not be admissible as evidence information any any kind in court or any any in action before shall it be tribunal, board, agency person, or nor other in any way, disclosed in whole exhibited or its contents part, by any representative or in officer or any facility, [department [p]ublic or of such [h]eaith by any person project in such a research participating except may necessary by any person, or other as project for the the research furthering added.) which it relates.” (Emphasis evinced a clear intent in 19a-25 that the information § any any
at issue is not to be disclosed “in action of in kind,” specifies agencies and actions court and before separate applies. in which the See contexts General Statutes 52-146b made (communications also § any “in not disclosable absent waiver civil clergymen preliminary thereto, or criminal case or or any in or administrative Gen- legislative proceeding”); eral Statutes 52-146c between (b) (communications waiver “in patient privileged absent psychologist in commit- actions, juvenile, probate, civil and criminal pre- ment and arbitration proceedings, liminary or and in proceedings, to such actions General legislative proceedings”); administrative Statutes 52-146k communications (b) (confidential between battered women’s counselor or sexual assault “in counselor and victim not disclosable absent waiver any any proceeding legisla- civil or criminal case or or General proceeding”); tive or administrative Statutes judicial between branch 52-146n(b) (communications employee employee program assistance counselor any “in not disclosable absent waiver civil or criminal any administra- proceeding legislative case or or or General Statutes 52-146o proceeding”); (a) (physi- tive may patient cian not disclose surgeon by personal communications or information obtained any “in patient, consent, examination of absent civil preliminary any action or thereto or in proceeding or administrative It probate, legislative proceeding”). practice, legislature’s is difficult to reconcile *13 privileges, specifying separately case of all of these that the extends both the context of civil privilege propo- actions and administrative with the proceedings, sition that “civil action” as used in 19a-17b encom- § passes court actions and before the proceedings both commission.12 specific the legislature
When the has not enumerated privilege applies, contexts in which a it has other ways scope preclude defined the of the privilege example, legislature disclosure under the act. For the has extended certain both to civil actions and privileges administrative the proceedings defining privilege very that the information stating broad terms proceedings Interpreting “civil action” to include before the commission necessarily proceed privilege the to other administrative would not extend agencies, ings before other administrative or before other tribu boards, primary arguments undercutting one of the in favor of nals or thus broadly—namely, interpreting interpretation “civil action” so that the broad is, public policy underlying peer privilege, review would effect any public proceedings. prevention review disclosure Statutes General See, e.g., generally. is “confidential” by judicial investigations (governing 51-51l family or commissioner compensation judge, council of “[a]ny investiga providing and support magistrate, cause probable or not there whether determine tion to has 51-51i Statutes under §] that conduct [General called any individual be confidential occurred shall information providing purpose of for the by the council investigation of such knowledge his not disclose shall on of the council decision party prior to a third respondent unless the exists, cause probable whether disclosure investigation that such requests confidentiality cov statement of a blanket Such open”). approach legisla Yet another and all venues. ers incorporate tois in other contexts ture has taken attorney- such as the act, in the expressly privilege 1-210 (b) Statutes See, General privilege. e.g., client dis require shall be construed (“nothing [act] closure of . . . [10] . . . communications privileged relationship”). attorney-client by the scope similarly broadened not, did have, could but applicabil its by expanding privilege by provid actions, civil either beyond the context of ity confidentiality, protection general a blanket ing the act. into incorporating by expressly conclude, foregoing, on the basis of We plainly in 19a-17b (d) action” as used term “civil before not include does unambiguously 1-2z. Section See General Statutes the commission. *14 medical of a prevents (d) review peer process in the engaged review committee into discovery or introduction subject being from disclosure does not bar the action, in a civil but evidence Therefore, to the act. pursuant of such information public is a plaintiff undisputed it is because require mandatory disclosure agency (a) 1-210 §§ see General Statutes act; ment of the records are requested and that 1-212 (a); 180 properly
records under the act, the commission
ordered
requested
exception
disclosure of the
records, with the
applicable exemption.13
of those that fell under an
lightly.
We do not reach this conclusion
We, like
significant public policy
dissent,
are mindful of the
purpose underlying
peer
privilege, namely,
review
promote public
safety by encouraging
health and
positions
they might
“committee members to take
they
they
thought
going
not otherwise
if
take
were
subpoenaed
malpractice
in the middle of a
case.”
(Internal quotation
omitted.)
Bridge-
marks
Babcock v.
port Hospital,
(1999).
790,825,
Conn.
privilege grounded
“physicians
is
on the belief that
openly
perfor-
. . . would not feel free to
discuss the
practicing
hospital,
mance of other doctors
in the
with-
out assurance that their discussions in committee
privileged
(Internal
would be confidential and
. . . .”
quotation
omitted.)
preventing
marks
Thus,
Id.
a mal-
practice litigant
acquiring,
peer
from
in a civil action,
through discovery
review records
and use of those
by introducing
records
them into evidence furthers this
purpose by protecting participants
peer
in the
process
being
testify regarding
hauled into court to
proceedings.14
review records or
requested
Because we conclude that disclosure of the
records was
required
act,
(a)
under the
we further conclude
that 45 C.F.R. 60.13
does
plaintiff
bar
not
disclosure of the four records that the
asserts were obtained
provision specifically provides: “Nothing
from the data bank. That
in this
paragraph
prevent
party
shall
the disclosure of information
which is
applicable
authorized under
law to make such disclosure.”
[s]tate
45 C.F.R.
(a);
opinion.
only
§ 60.13
see
footnote
of this
The act not
authorizes the
plaintiff
disclosure;
mandatory.
to make the
it makes such disclosure
Sec
(a), therefore,
inapplicable.
tion 60.13
14 separate provision
protects participants
A
in § 19a-17b
provides:
(c)
from defamation actions. Section 19a-17b
“There
monetary liability
part of,
shall be no
on the
and no cause of action for
damages
any
against,
shall arise
member of a medical review committee
any
proceeding
performed
scope
for
act or
undertaken or
within the
provided
such committee’s functions
that such member has taken action
or made recommendations without malice and in the reasonable belief that
the act or recommendation was warranted.”
*15
the
possibility
the
recognize
We
by allowing
undermined
may be
privilege
review
peer
proceedings.
peer
the act of
under
disclosure
is “out
speak,
cat, so to
contends,
the
plaintiff
As the
Commissioner
permitted.
disclosure
once
bag”
App.
supra, 17 Conn.
Kadish,
v.
Health Services
possible
It is therefore
dissenting).
J.,
(O’Connell,
chilling
the same
may have
the act
under
disclosure
by enacting
to avoid
sought
legislature
effect that the
convert
however, cannot
possibility,
That
19a-17b.
admin-
it make the
“disclosure”; nor can
“discovery”
a civil
present case
at issue
proceeding
istrative
of the term
definition
Indeed, extending
action.
before the commis-
to include
“civil action”
evil than inter-
be a
opinion,
greater
in our
would,
sion
acknowledge
we
though
even
the law as written
preting
served.
being
is not
policy of 19a-17b
public
we have
law,
interpreting
that in
We do not believe
that,
drafting
possible
it. It is
authority to rewrite
certain
foresee that
did not
19a-17b,
subject of
become
proceedings might
the vast
because
request
information
a freedom of
and are
hospitals
agencies
are not
majority of
We
the act.
provisions of
therefore, subject to the
not,
subject to
that are
however,
that records
emphasize,
the act are not
disclosure under
action for or
in a civil
into evidence
or introduction
consti-
if those records
provider,
care
a health
against
that were
and not “documents
review material
tute
”
‘acquired.’ Babcock
‘recorded’ or
independently
Thus,
822.
Hospital,
supra,
Bridgeport
may succeed under
malpractice litigant
although
exempt
of records that are
disclosure
obtaining
act in
prevents the
nevertheless
discovery,
Furthermore, pur-
in a civil action.
use of such records
in atten-
person who was
“no
(d),
suant to §
permitted
shall be
such committee
meeting
dance at a
*16
required
testify
any
or
such civil action as to the
content of such
. . . .’’In
any case, the
task of changing the law lies with the
legislature,
not with
judiciary.
the
“In construing
statute,
cardinal principle of construction is to ascertain the
intent of
legislature.
passed by
If an act
the legisla-
ture is within its constitutional power,
it is not the
attempt
business
the court to
interpreta-
to twist the
tion of the law to conform to the ideas of the judges
as to what the law
to be or to
ought
attempt
to make
the law coincide with their
justice.
ideas of social
The
judicial function should
province
not invade the
legislature.” Tileston v. Ullman,
to the trial court with direction to plain- dismiss the tiffs appeal.
In opinion this PALMER, VERTEFEUILLE ZARE- LLA, Js., concurred.
NORCOTT, J., I dissenting. respectfully disagree with majority’s conclusion that General Statutes 19a- 17b (d) inapplicable in proceedings before the free dom of information commission (commission) and, that certain therefore, records held plaintiff, director policy of health affairs for the Univer planning sity of Center, Connecticut Health are exempt not disclosure under the freedom of information act (act), General Statutes 1-200 seq. my view, majori et In ty’s interpretation narrow of the ambiguous language effectively of 19a-17b (d) reads the “shall not be sub ject discovery” out language of the statute and will have a effect on chilling future review proceedings, thereby very purpose defeating of the statute. respectfully I Accordingly, dissent. “The part: in relevant provides (d)
Section conducting review committee of a medical discovery or intro- subject not be review shall against for or any civil action into evidence duction which the matters out of provider arising care a health committee, review such subject to evaluation are meeting at a was in attendance person who and no testily required to permitted shall be committee such pro- of such the content action as to such civil *17 anal- focuses its properly majority . . .” The . ceedings and action,” “discovery” and “civil ysis on the terms indicates plain meaning their concludes by afforded protections the intended for legislature discovery pro- the formal apply only to 19a-17b (d) party one tools used namely, pretrial the cess, in court trial, for preparation information obtain however, the mean- my view, In in a civil matter. action clear when the is and ambiguous, of those terms ing considered, I con- statute is of the also (d) intended clude that the disclosure of preclude the commission. in an action before objec statute, fundamental construing “When [o]ur intent apparent effect to give tive is to ascertain words, we seek to ... In other the legislature. of the meaning manner, in a reasoned determine, case, facts of statutory applied as to the language [the] actually language of whether the including question meaning, determine that ... In apply. seeking does 1-2z us first to consider Statutes directs General relationship to other itself and its text of the statute considering text and If, after such examining statutes. plain text is meaning of such relationship, such or unworkable yield absurd and does not unambiguous of the meaning evidence of the results, extratextual . The test to deter considered. . . statute shall not be when read statute, is whether the mine ambiguity susceptible to more than context, one reasonable interpretation.” quotation marks (Internal omitted.) Construction, Inc., Hees Burke v. 1, 10, 290 Conn. A.2d 373 (2009). that,
It is well settled
the construction of the
“[i]n
phrases
words
shall
statutes,
be construed
language
commonly
according
approved
usage
. . .
1-1
ordinarily
General Statutes
We
(a).
.
dictionary
look to the
definition of a word to ascertain
commonly approved usage.”
quotation
its
(Internal
Gelormino,
State marks
omitted.)
373, 380,
respect
With
(2009).
to the term “discov
majority
ery,”
that,
conjunc
concludes
when read in
prohibition
tion with the statute’s
on “introduction into
evidence,” that term was intended to refer to its diction
ary definition,
practice,”
under the
heading “[t]riai
pre-trial
party
devices that can be used
one
“[t]he
to obtain facts and information about the case from the
party
party’s preparation
other
order to assist the
Dictionary
for trial.” Black’s Law
Ed.
A sub
(6th
1990).
*18
sequent
dictionary, however,
edition of that same
also
“discovery”
defines the term
in
as,
part,
relevant
“[t]he
process
act or
of
or
finding
learning
that
something
previously unknown”;
was
Dictionary
Black’s Law
(7th
virtually
Ed.
a definition that is
1999);
identical to that
which,
majority notes,
for the term “disclosure”
as the
typically is associated with
under the act.
proceedings
See id.
in
(defining
as,
part,
“disclosure”
relevant
“[t]he
process
act or
of
known
that was
making
something
previously
my
In
unknown”).
view, each of these read
“discovery”
of
ings
perfectly
the term
reasonable in
and,
context of 19a-17b
I conclude
accordingly,
legislature’s
is,
very
use of that term
at the
Construction,
e.g., Hees v.Burke
least,
See,
ambiguous.1
Inc., supra,
based on the
of disclosure
purposes
that term for the
define
Dictionary
Ed.
(7th
Black’s Law
proceedings.
review
broadly as
action
however, defines the term
1999),
“[a]n
or civil
protect
private
or
enforce, redress,
brought
definition does not
That
litigation.”
a noncriminal
right;
in
proceeding
must be a court
specify that the action
no
action,
as a civil
and there is
order to be classified
in our case
in the statutes or
indication,
clear
either
I
Accordingly,
the case.
conclude
law, that that is
statute,
in which the
within a civil action
as one of the two circumstances
‘discovery’
play—in
words,
is best understood
into
other
comes
” (Emphasis
original.)
conjunction
concept
in
In
in
with the
of ‘evidence.’
legislature
my view, however,
from the fact that the
deemed
it does not follow
evidence,
that it intended the
to be inadmissible
only
evidentiary
“discovery”
apply
in the limited
sense of the term.
term
simply
prevent peer
enacting
legislature’s
was to
intent in
If the
trial,
being
its
into evidence at
then
introduced
exclusively
pretrial
“discovery,” understood
as a
device
use of the term
essentially
designed
goal,
ultimate
would be redundant
to achieve that
likely
adequately
the statute’s
would be
addressed
because such concerns
explicit prohibition
.”
into evidence . . . General Statutes
on “introduction
interpret
legislature’s
Thus,
(d).
use of the
§ 19a-17b
it is reasonable to
evidentiary
“discovery”
mere
as an indication that it had more than
term
broadly
prevent
release,
mind,
and that it intended more
concerns
sought
“disclosure,”
regardless of whether it was
of such information
specific evidentiary purpose.
differently,
legislature’s inclusion
Put
for
prohibition
“discovery,”
on “introduction
of the term
in addition to
”
evidence,
party’s
knowledge of such informa
that a third
mere
into
indicates
sought
avoid,
something
a view that accords
tion was
“discovery.”
definition of the word
with the disclosure oriented
acknowledge
governing the
of a civil
2 I
that the rules
commencement
part,
statutes;
elsewhere in the
see General Statutes
action are set forth
52-91;
have,
determining
and that our cases
as a factor
§§ 52-45a
may
proceeding properly
as a civil
whether an administrative
be classified
*19
procedure
proceeding
action,
commencing
for
to deter
examined the
requirements
sufficiently
52-
§§
whether it is
similar to the
set forth in
mine
Center,
See, e.g.,
v. Tavares Pediatric
45a and 52-91.
Board
Education
of
544, 557-58,
Waterbury Waterbury
(2006);
an
of the term “civil action” that includes
an action
before the
brought
private
commission
a
seeking
individual
to enforce his or her
right
squarely
information under the act falls
within the com-
dictionary
mon
term,
definition of the
and is a reason-
Compare, e.g., Regs.,
Agencies
§§
§
52-45a and 52-91.
Conn. State
1-21J-23
complaint
(requiring
and other documents submitted to
commission
1-21j-26
signed), Regs.,
Agencies
(requiring complaint
§
Conn. State
and
permitted by Superior
other documents to be served in same manner as
Court),
Regs.,
Agencies 1-21j-28(commencement
§
Conn. State
of action
upon filing
complaint
commission,
occurs
which must include com
plainant’s name, address,
telephone
and fax numbers and concise state
facts, including
sought),
ment of relevant
nature of relief
with General
requires
(commencement
Statutes 52-45a
of civil action
writ of summons
describing parties,
place
appearance,
filing
return date and
and date for
accompanied by complaint),
(requiring
General Statutes
52-91
first
pleading
“complaint
contain[ing]
.
.
in civil action to be
.
a statement of
constituting
relief,
the facts
the cause of action and ...
a demand for the
remedy
sought”).
which
a
. . .
shall be
statement of the
Moreover,
prior
categorically
similarity
our
cases have not
stated that such
only
classifying
proceeding
is the
relevant factor in
an administrative
as a
contrary,
recognized
civil action. To the
we have
on several occasions that
purpose
containing
for
which
statute
term such as “civil action”
important
determining
proceeding
was enacted is an
factor in
whether a
scope
specific
falls with the
of that term it is
used
context of that
particular
Light
Costle,
statute. See Connecticut
& Power Co. v.
179 Conn.
415, 423,
(1980) (“the scope
proceedings
187
In
of the
statutory
light
reading
language.
able
statute, I
of the
majority’s equally
reading
reasonable
action,”
term “civil
as used
conclude that the
also is
19a-17b,
ambiguous.
context of §
“we look
statutory
ambiguous,
language
When the
his
itself,
legislative
of the statute
to the words
enactment,
its
tory
surrounding
circumstances
and
and
implement,
it was
policy
designed
the legislative
and common
relationship
existing
to its
legislation
mat
the same
principles governing
general
law
Fredette v.
quotation
omitted.)
ter.”
marks
(Internal
Conn.
821-
Guard,
813,
Air National
283
Connecticut
In
ultimate
22,
(2007).
doing so,
I
begin,
concept
a discussion of the
review,
aspect
which has become an entrenched
of the
provision
quality
health care
the United
throughout
States. Peer review
“are essential
improvement
continued
in the care and treatment of
patients. Candid and conscientious evaluation of clini
practices
qua
cal
is a sine
non of adequate health care.”
Hospital,
Inc.,
250,
Bredice v. Doctors
Courts and scholars
efficacy
review is threatened
however,
part many physicians
and other
a reluctance on the
participate
process.
in that
This
providers
health care
factors,
from a number of
generally
reluctance
stems
liability,
exposure
entanglement
“fear of
including
loss of referrals from
malpractice litigation,
[and]
Creech, comment,
. . . .”
“The Medi-
other doctors
C.
A Jurisdictional Sur-
Privilege:
cal Review Committee
see also Yuma
Rev.
vey,”
(1988);3
67 N.C. L.
179
Superior Court,
Medical Center 175 Ariz.
Regional
by one’s
72, 75,
(App. 1993) (“[r]eview
In an effort to address such adopted privilege statute. state has regard scope these statutes differ with Although protected it, and the materials with- 3Indeed, physician’s qualifications, competence, and ethics all are “[a] requested question to review called into when a medical staff committee application privileges, for staff to determine the extent of his clinical his quality privileges, work. The nature of these activities or to assess the of his participants may professional friends, suggests lose as well that committee addition, referrals, physicians reviews. In as from who receive unfavorable well, may exposed members, hospitals and the the committee costly defamation, arising litigation alleging from the most common claim Hall, “Hospital Proceedings R. Committee committee activities.” 245, Reports: Legal Status,” (1975). Am. Med. Their J.L. & the strong on exception they are founded out and are proceedings, peer policy in favor of participa- and facilitate encourage primarily intended means of achiev- principal proceedings. tion such from participants immunizing consist ing goal materials used liability precluding civil being in such made the statements for subsequent in a action into evidence introduced “Medical Peer Gosfield, comment, see G. damages; Industry,” 52 Health Care Protection Review L.Q. by maintaining and also 552, 553 Temp. (1979); by prohibiting confidentiality of such *22 the Gerity, v. 520 See, e.g., Morse public.4 disclosure to the purpose the of Conn. Sup. 470, 1981) (“[I]f F. 472 (D. to evaluate their is doctors encourage the statute would disclosure, without fear of peers not any proceedings, of hampered by public release be has sued. The dan- patient the who just involving those peer review exists professional candid inhibiting of ger . . . The overrid- by potential the mere for disclosure. to the medi- importance of these review committees ing have public requires that doctors profession cal and the atmo- peers their in an unfettered freedom to evaluate confidentiality. No effect sphere complete chilling of to function effec- if the committees are can be tolerated 114—15 Love, 111, (Fla. v. 599 So. 2d Cruger tively.”); commit- peer afforded to review 1992) (“[t]he the effect of the prohibit chilling tees is intended to of statements made to or potential public disclosure by prepared for and used information [medical review func- carrying peer committee in out its review] Inc. v. Virginia, Levin, HCA Health Services tion”); of 417 obvious 215, 221, (2000) (“The 260 Va. 530 S.E.2d [a]ct (A) (LexisNexis 2008). [4] At today, expressly least one . . . .” jurisdiction, (Emphasis has pursuant provided foreseeing added.) [that peer Ark. Code Ann. state’s] very review issue that we are presented . . . [f]reedom 16-46-105 of “shall not [i]nformation (a) (1) 190 open and frank discus- promote intent is to
legislative
care
peer
process among
review
health
during
sion
improve-
the overall
of
providers
goal
in furtherance of
system.
peer
health care
If
review informa-
ment of the
there would be little
confidential,
tion were not
participate
process.”).5
incentive to
5
Hospital, Inc., supra,
also, e.g.,
191
scant,
history
Although
legislative
indicates that it was cast from the same mold as the
peer
See, e.g.,
review statutes of our sister states.
23
Proc.,
24, 1980 Sess., p. 7096,
Repre
H.R.
Pt.
remarks of
sentative Richard Lawlor
review statute intended
(peer
confidentiality
peer
pro
to “allow for some
review
ceedings
any hospitals
and medical facil
regard
.6Indeed,
purpose
we have
ities”)
recognized
peer
by
19a-17b is to facilitate
review proceedings
participants from
protecting
liability
preclud
civil
the materials used
ing
therein from
introduced
being
into evidence in an action for damages; see Babcock v.
Bridgeport Hospital,
In narrow the the statutory fails to reflect or effectuate language the and intent in 19a- enacting § clear legislature’s that is intended to First, 17b. to the extent action prevent litigants obtaining in a court preparation in their for trial— review materials to assist that, in it is— majority large part, which I with the agree statutory of the majority’s interpretation language the effectively out with protection reads that of the statute care respect public throughout to all health facilities prohibition the remains Specifically, although state.7 the through materials the formal discov- obtaining on such a will able to circum- ery process, litigant hereafter be the simply filing request vent that under safeguard information, thereby eviscerating exact act for the same discovery was any protection prohibition that the provide. illogical meaning- intended to It would be discovery for the to have enacted the less for a against at all if it intended provision litigant obtain hospital privileged able to the same public be We are information disclosure under the act.8 through only public particularly troubling will It is that health care institutions adversely impacted by majority’s today, private conclusions health subject provisions Accordingly, are act. care institutions not disadvantage comparison to their institutions sit at a distinct competitors respect assuring provision private continued process. quality through care health an effective 8 my view, In this decision in Police v. Freedom court’s Chief of of Informa Commission, 377, inapposite. (2000), tion agree majority Although I with the Police v. Freedom Chief of ofInforma proposition supports fact that certain informa tion Commission does not tion is not to disclosure under rules of
193 statutory lan- interpretation bound to avoid an Kelly result. See leads to such an unworkable guage 580, 616, (2005) Conn. Haven, v. New 275 in a manner that we construe a statute (“It is axiomatic purpose or lead to will not thwart its intended a construction that absurd results. . . . We must avoid result that bears fails to attain a rational and sensible sought to directly legislature on the quotation omitted.]). marks achieve.” [Internal practical standpoint, moreover, having From a pursuant act, litigant such materials obtained during will be able to use what was said and done questions what peer proceedings review to determine ask, them, during of whom to ask the formal evidence that discovery process in order to discover thereby essentially provid- at trial, would be admissible blueprint with the for an effective trial ing litigants Supe- Regional See Yuma Medical Center strategy. plain- Ariz. Court, supra, (“Inherent rior [the] ability tiffs’ to obtain information from another source plaintiffs’ part that such infor- knowledge is the on [the] mation exists. . . . Herein lies the real benefit to [the] plaintiffs [obtaining peer review materials that are not themselves admissible in it informs evidence]: [the] plaintiffs peer participants what the review consider to be relevant case— plaintiffs’ information [the] plaintiffs information of which be might [the] consequence, public pro- As a health care unaware.”). viders will participate be reluctant to in the necessarily subject act, mean that it also is not to disclosure under the it subject does not follow that the fact that certain information is not discovery necessarily subject disclosure under the rules of means that it differently, presented question to disclosure under Put the act. here is prevent whether the intended 19a-17b to the disclosure of in an action before the commission such that those subject materials are neither rules disclosure under the nor act, analyzed question to disclosure under the that was not raised or Police v. Freedom Commission. Chief of of Information they say and do that what knowledge
process used indirectly, albeit may, such during malpractice against action subsequent *26 in an ongoing precisely peers. their This is themselves or one of to avoid when it legislature sought result 19a-17b. enacted § majority’s conclusions a result of the
Second, as
health
public
case,
this
all
subject
will be
to disclosure
potentially
care institutions
scru-
beyond
ensuing
context.
litigation
made and documents submitted
tiny
the comments
undeniably
chilling
will have
in such
health care
discourage
review and will
effect on
their
relationships with
risk their
providers—who
and the
reputation
profession
within the
peers, their
referrals—
practice through
success of their
continued
a result defeats
process.
Such
participating
enacted,
19a-17b was
purpose for which §
the clear
Kelly
interpretation.
such an
See
we are bound to avoid
supra,