Opinion
No. FA03-0127828
July 6, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION IN LIMINE
The parties have been embroiled in a bitter custody and visitation dispute commenced by complaint of the plaintiff father dated June 23, 2003. On October 27, 2003, the court made initial orders of custody and visitation with plaintiff denied access with the minor child. The court further ordered that the parties undergo a psychological evaluation by Dr. Connolly by order dated October 27, 2003. The defendant was ordered to pay for the evaluation upon discovery that his insurance carrier would not provide any reimbursement. That order was entered on January 12, 2004.
The defendant mother has made sexual abuse allegations against the plaintiff concerning his conduct with their minor child. During the course of these proceedings, the defendant and the minor child moved from the residence of the plaintiff. The defendant left personal files behind in the basement area of the plaintiff's home. Said files contained medical records from the United States Navy and other medical providers including psychiatric and/or psychological opinions from the 1990s.
Without knowledge and/or consent of the defendant, the plaintiff went through the files and found the above-entitled documents. He unilaterally took those documents and gave them to Dr. Connolly.
The parties were canvassed as to the issue of waiver of confidentiality for statements made to the court-ordered evaluator. Both parties, however, were not canvassed by the trier of fact as to the waiver of confidentiality of prior communications between that party and their psychiatrist, psychologist and/or therapist, whether oral or in writing.
As a result of the plaintiff's action, the defendant filed a motion in limine to preclude the use by the court of Dr. Connolly's evaluation and testimony. The defendant claims that the court should grant her motion in limine to exclude Dr. Connolly's testimony and submission of his report to the court as previously ordered. She claimed: (1) violation of HIPPA by the plaintiff and (2) violation by the plaintiff of the defendant's right to privacy concerning her psychiatric and/or psychological records.
The parties filed trial briefs and presented testimony and exhibits before the court at its hearing on June 9, 2004. The defendant withdrew her claim of a HIPPA violation admitting in the record that the plaintiff is not a "covered entity" under HIPPA. She, therefore, has no claim for a motion in limine based upon the plaintiff's actions under HIPPA.
The defendant's sole remaining claim is that the plaintiff violated her right to privacy by disclosing psychiatric and/or psychological records included in her personal files left behind at his residence. The plaintiff counters the defendant's claim contending that she waived any right to privacy by leaving the documents behind at his residence. He further claims that she waived her claim to privacy based on the fact that her mental state is an issue before the court in its determination of custody and/or visitation of the minor child.
The court has analyzed the authorities set forth in both briefs of the plaintiff and defendant. The court concludes that the defendant has an expectation of privacy concerning her medical, psychological and psychiatric records in her personal file left in the plaintiff's dwelling. The right of privacy as to communications between psychologists and psychiatrists has been acknowledged in family cases by our appellate courts. Cabrera v. Cabrera, 23 Conn. App. 330, 339 (1990); Berglass v. Berglass, 71 Conn. App. 771 (2002).
Based on the evidence presented, the court further concludes that the plaintiff rummaged through the defendant's personal files without her knowledge and consent. It is also clear from the evidence submitted before the court that the plaintiff, on his own, took those personal private records to Dr. Connolly without the knowledge and consent of the defendant, her counsel and/or the guardian ad litem.
For the limited purpose of this decision, it is of no import to this court whether the defendant can prove that the plaintiff waived the privilege of confidentiality and/or privacy with her psychiatrist, psychologist and/or medical doctors by the publishing of this information in her United States Navy file.
Although the court concludes that the defendant's right of privacy was infringed by the actions of the plaintiff the court is duty-bound to look further to resolve the above claim raised in the motion in limine. The Connecticut General Statutes provide confidentiality for psychiatric and psychological records and communications as provided in C.G.S. §§ 52-146d and 52-146c respectively. It is clear by the legislation adopted in Connecticut that parties have the right to confidentiality for communications and correspondence between their psychiatrist and psychologist.
However, in civil proceedings the court must perform a balancing test when a party's mental condition is an element of a claim or a defense. The same balancing test applies for communications between patient and psychiatrist and/or psychologist. The communications or records between patient and psychiatrist and/or psychologist may be disclosed in a civil proceeding when the mental condition of a party is an element of his claim or a defense and the judge finds that it is more important to the interest of justice that the communications be disclosed than that the relationship between the patient and psychiatrist and/or psychologist be protected. (Emphasis added.) C.G.S. §§ 52-146f(5) and 52-146c(c)(2).
The court hereby concludes based upon the evidence presented at the hearing and contents of the court file, that the mental condition of the plaintiff and/or the defendant are in fact elements of their claims and defenses. The court further concludes that the psychological and/or mental health of a parent seeking custody or visitation or defending a claim from an opposing parent as to custody and visitation is always an element of a claim or a defense. (See C.G.S. § 46b-6.) It is important to the interest of justice that full disclosure of any psychological or mental condition be provided to a court-ordered custody or visitation evaluator. The evaluator needs all background information concerning the mental health and/or stability of the parent or parents to assist the court in the ultimate determination concerning the custody or access rights to be ordered.
In weighing the equities, the court has also considered the fact that the records supplied by the plaintiff to Dr. Connolly do not deal with any ongoing psychiatric and/or therapeutic relationship between the defendant and any treating psychiatrist and/or psychologist. There was no evidence presented by the parties at the time of the hearing that the defendant is presently treating with any of the physicians, doctors or psychologists referred to in the records supplied by the plaintiff to Dr. Connolly.
The minor child is entitled to a full evaluation of the mental state of both parents prior to an order of custody and/or visitation in the present controversy. The court concludes that the defendant mother's right to confidentiality and privacy concerning the communications and/or records between patient and psychiatrist and/or psychologist have been outweighed by the interest of justice in the present controversy. The court hereby concludes that Dr. Connolly's report be filed with the court clerk and his testimony be heard by the court.
This opinion has no bearing on the mother's potential claim for liability against the defendant based on a theory of invasion of a right of confidentiality and/or privacy under state or federal constitution, statutory and/or common law.
It is hereby ordered that the defendant's motion in limine to exclude Dr. Connolly's court-ordered evaluation and testimony at trial is hereby denied.
Devine, J.