Significant 2024 Connecticut Health Care Case Law

Pullman & Comley’s annual survey of health law cases summarizes important decisions issued in 2024 affecting the practice of medicine and the payment for health care services. Among the highlights are the Connecticut Supreme Court’s interpretation of the state’s surprise billing law; new rulings addressing the extent of the immunity conferred on health care providers during the COVID-19 public health emergency; and decisions on discovery requests involving the production of metadata in patient medical records. Please refer to the full decisions for complete information.

For individualized assistance in understanding how these decisions may affect your organization or practice, please contact one of our Health Care Law attorneys.

CT Supreme Court Interprets State Surprise Billing Law

A group of emergency medicine providers claimed that the defendant insurer inadequately reimbursed them for services rendered to patients for whom the insurer was out of network in violation of the Connecticut surprise billing law, the Connecticut Unfair Trade Practices Act (CUTPA) and the Connecticut Unfair Insurance Practices Act (CUIPA). The group claimed that the insurer unlawfully subtracted the patient’s in-network deductible (and/or other cost sharing expenses) from the amount it paid to the group, leaving the group to collect the patient’s share of the bill directly from the patient.

The Connecticut District Court certified the following three questions to the Connecticut Supreme Court, and the Connecticut Supreme Court answered these questions. The questions and a summary of each response are included below:

(1) Under any interpretation of the surprise billing law, can a plaintiff successfully maintain an action under CUTPA for actions that do not violate CUIPA but purport to violate the surprise billing law, because the surprise billing law regulates a specific type of insurance related conduct?

No. The Connecticut Supreme Court found that CUIPA sets forth the types of insurance-related conduct that may constitute CUTPA violations, and that it would have expected a clear statement of legislative intent before concluding that a violation of an insurance-related statute not explicitly mentioned in CUIPA is actionable under CUTPA.

(2) Does the surprise billing law [CGS §38a-477aa] require a health insurance carrier to fully reimburse an out-of-network health care provider at the greatest of the three amounts specified in the statute for emergency services rendered to its insureds, and then later recover any applicable deductible, copayment, or coinsurance directly from the insured?

No. Section (b)(3)(A) of the surprise billing law requires that insurers reimburse out-of-network emergency medical providers at the greatest of the following rates: (i) the in-network fee; (ii) the “usual, customary and reasonable rate” (as defined in the statute); or (iii) the Medicare rate. The court determined that the language in the surprise billing law, read as a whole and in light of its legislative history, requires that the health care provider-- not the insurer-- collect the insured’s share of the cost of services.

(3) If the answer to the second question is “no,” is the defendant’s practice of paying the plaintiff only that amount that exceeds the insured’s in-network deductible, copayment, or coinsurance, and leaving the plaintiff to recover the remaining amount directly from the insured, regardless of whether such remaining amount is greater than the amount that the insured would have been personally responsible to pay had they visited an in-network provider, a violation of the surprise billing law?

No. The court found that the surprise billing law requires the insured’s cost sharing for out-of-network emergency services to be calculated on the basis of the insured’s in-network cost-sharing expenses under its policy but with reference to the actual charge for the out-of-network services. This means that, for example, if the insured did not meet her deductible, the insurer can require the insured to be responsible not only for the in-network cost of the service, but also for the balance of the in-network deductible that remains unexhausted. The court stated that “[t]here is no surprise attached to an insured learning, after receiving out-of-network emergency treatment, that she is responsible for paying her full in-network copayment or deductible.” The court also looked at the legislative history of the statute and found that there was no suggestion that the statute was intended to transfer to carriers the out-of-pocket expenses that are ordinarily paid by insureds.

NEMS, PLLC v. Harvard Pilgrim Health Care of Connecticut, Inc., 350 Conn. 525 (August 21, 2024).

Note that, with respect to the second question, the court found the emergency physicians’ position that the surprise billing law required the insurer to collect the deductible, copayment, or coinsurance directly from the insured would have enacted a “sea change” in the current system, requiring carriers to develop novel mechanisms for collecting out-of-pocket payments from their insureds for this one subsegment of health care services.

Intervenors in CON Public Hearings Held Not to Have Standing to Challenge CON

The Superior Court (J.D. New Britain) determined that two health care entities who were granted intervenor status in separate certificate of need (CON) proceedings had no standing to appeal the grant of the certificate of need. In each case, the court found that the plaintiff was not “aggrieved,” that is, it did not demonstrate that it had a specific, personal and legal interest in the subject matter of the decision or that the injury fell within the “zone of interests” sought to be protected by the CON statute (CGS §19a-639(a)).

In the first case, High Watch Recovery Center, Inc., a substance abuse treatment facility in Kent (High Watch), appealed the decision to grant a CON to Birch Hill Recovery Center, LLC, also in Kent (Birch Hill). High Watch claimed that approval of Birch Hill’s facility would harm High Watch’s ability to attract patients with commercial insurance and that the monies received from these patients helped to fund High Watch’s treatment of indigent patients. High Watch also claimed that private settlement discussions that had taken place between the Office of Health Strategy (OHS) and Birch Hill deprived High Watch of its right to be heard as an intervenor in the underlying CON proceeding.

The court found that the business model of a competitor is not within the zone of interests protected by the CON statute. It cited statutes regulating other industries, such as the transportation and television systems industries, that explicitly allow for consideration of the effect of the grant of a certificate on existing businesses. Further, the court found that, while two subsections of CGS §19a-639(a) refer to the impact of a CON on existing facilities, those subsections were intended to protect the interests of “the health care consuming public at large,” not potential competitors.

The court also determined that High Watch was not aggrieved with respect to the private settlement discussions between OHS and Birch Hill. The court cited several cases to support its position that status as an intervenor in an administrative proceeding is not sufficient to establish aggrievement and, further, that procedural deficiencies, even if they cause the loss of an opportunity to be heard, do not by themselves establish aggrievement.

High Watch Recovery Center, Inc. v. State et al., 2024 WL 2829852 (May 30, 2024).

In the second case, HHC Plainfield Surgery Center, LLC (HHC) applied for a CON to open an ambulatory surgery center in Plainfield, Connecticut. Day Kimball Healthcare, Inc. (DKH), the owner and operator of Day Kimball Hospital, requested a hearing and was granted intervenor status. In 2021, the CON was approved via an agreed settlement.

DKH appealed the settlement to the Superior Court, arguing that OHS failed to properly apply the considerations required for granting CONs set forth in CGS §19a-639(a). DKH also argued that OHS’ hearing process lacked fundamental fairness because the service areas of Day Kimball Hospital and the proposed ambulatory surgery center overlapped to some extent, and so the grant of the CON would harm DKH’s financial health and its ability to compete for patient business and would also negatively impact the health care delivery system in northeastern Connecticut.

The court found that an allegation that a governmental action will result in harmful competition is generally insufficient to establish aggrievement unless the text of the statute indicates otherwise. The court looked at the legislative history of CGS §19a-639(a) and found that neither the text nor its legislative history indicated an intent to protect competitors. Since DKH’s concerns about its financial and competitive interests were not within the zone of interests protected by the statute, DKH was not aggrieved and therefore did not have standing to challenge the grant of the CON to HHC.

Day Kimball Healthcare, Inc. v. State et al., 2024 WL 5134907 (December 10, 2024).

These decisions not only demonstrate the importance of being granted status as a “party” in a CON contested case hearing in order to have the right to appeal a final decision, they are also an important reminder that an intervenor concerned about the harmful effect that the grant of a CON would have on its competitive position in the market should focus on opposing the CON under the guidelines and principles that OHS is required to consider under CGS §19a-639(a), as none of these specifically address added competition in the service area as a grounds for denial.

CT Trial Court Rules on Motions to Compel Production of Documents

Metadata is electronically stored evidence that describes the history, tracking or management of an electronic document, including the hidden text, formatting codes and other information associated with an electronic document. Two Superior Court cases decided last year found that a defendant hospital was not required to produce the metadata underlying the provider notes in a patient’s electronic health record as part of the discovery process in a medical malpractice action.

In Walker v. Norwalk Hospital Association, a patient who received services from an urgent care center operated by the defendant claimed that the urgent care center failed to diagnose his rash as shingles and as a result he suffered permanent and debilitating conditions. The plaintiff moved for sanctions against the defendant for its alleged failure to comply with discovery orders and for an order to compel further discovery of metadata within his electronic health care record, as he noticed that there was a discrepancy between an earlier document production, which did not include a notation that he was concerned he had shingles, with a later production, which did include this notation. The plaintiff also sought an order of the court to compel the defendant to produce the keeper of the defendant’s electronic medical records as a third-party witness.

The Superior Court (J.D. Stamford/Norwalk) determined that, while the defendant was negligent in failing to produce a complete medical record the first time, there was no evidence that the defendant intentionally withheld information. The court allowed the plaintiff to re-depose the health care providers who treated him and also allowed him to amend his standard of care expert witness disclosure to reflect new information acquired since the date of the prior expert disclosure. However, the court determined that the plaintiff had ultimately received all of the information in his medical record and that further discovery would not likely result in additional admissible evidence.

The court reserved the decision to impose financial sanctions on the defendant, stating that the testimony of the re-deposed witnesses might be pertinent to its decision.

Walker v. Norwalk Hospital Association, 2024 WL 243368 (January 19, 2024).

In the second case, a patient suffered a fatal asthma attack in his hospital room. The administratrix of the decedent’s estate moved to compel production of the audit trail of metadata related to certain provider notes in the electronic medical records produced by the defendant hospital, arguing that the timing of when the decedent received care was crucial to the malpractice and wrongful death claims. The Superior Court (J.D. Stamford/Norwalk) found that, when ruling on a motion to produce audit information relevant to the possible alteration of a medical record, prior case law required a threshold showing of “identifiable problems with the records as produced initially – demonstrable incompleteness, apparently confirmed via an attempted deposition.” Based on this standard, the court denied the plaintiff’s motion, finding that the dates and time of the notes’ entries obtained through a metadata search would not shed any light on the timing of treatment and that there was no evidence that the entries were unreasonably delayed or improperly altered.

The court also granted the defendant’s motion for a protective order to preclude it from having to engage in the burdensome and expensive process of searching for metadata to produce an audit trail of the medical records. However, the court did grant the plaintiff’s motion to compel production of emails related to the action since the defendant’s recordkeeper admitted that neither he nor the IT department of the defendant made any effort to search for the emails.

Ragin v. The Norwalk Hospital Association, 2024 WL 3948670 (August 20, 2024).

These cases offer health care providers a measure of assurance that metadata is not discoverable without a showing by the plaintiff that the information sought is relevant, material and proportional to the plaintiff’s claims, and that the production of the data would not be burdensome to the provider.

CT District Court Denies in Part Insurer’s Motions to Dismiss ACA Discrimination Claim

The plaintiff brought a putative class action against Aetna Life Insurance Company (Aetna), the administrator of her health insurance plan, after Aetna denied her request for precertification to receive benefits for intrauterine insemination. Aetna denied the request because the plaintiff did not meet the plan’s definition of “infertile” which, for a woman 35 years of age or older, was six months or more of timed, unprotected coitus or six cycles of artificial insemination. The plaintiff, who was 40 and homosexual, argued that the plan’s infertility policy violated the antidiscrimination provisions of the Affordable Care Act because it provided heterosexual female members with a choice as to how they could establish that they are “infertile,” whereas non-heterosexual females could only do so by first incurring out-of-pocket costs for donor insemination. She requested compensatory damages for these out-of-pocket costs; punitive damages; and a declaratory judgment declaring, among other things, that Aetna continued to breach its duties by denying class members infertility benefits under the plan on the basis of sexual orientation.

The Connecticut District Court (Oliver, J.) denied Aetna’s motion to dismiss the plaintiff’s claims for compensatory damages and punitive damages. Aetna principally argued that the plaintiff’s requests amounted to a claim for benefits under the plan, and that her employer at the time retained control over the terms of the plan. The court disagreed, finding that the plaintiff’s injury could be traceable to Aetna because Aetna allegedly designed the plan and administrated claims under the plan, and that the injury would be redressable through damages.

However, the court granted Aetna’s motion to dismiss the declaratory judgment claim. It found that the plaintiff did not have standing because, at the time of the decision, she was no longer enrolled in the Aetna plan or employed by the employer who sponsored the plan, and that claims for a declaratory judgment generally require that the defendant’s actions are likely to injury the plaintiff in the future.

720 F.Supp.3d 108 (D. Conn. 2024). (Case name can be found in the cited decision.)

The plaintiff also alleged that she suffered emotional distress as a result of Aetna’s discriminatory plan, but the court noted that damages for emotional distress are not recoverable under the anti-discrimination provisions of the Affordable Care Act.

CT Superior Courts Issue Important Rulings on Governor’s Executive Order 7V

During the COVID-19 civil preparedness and public health emergencies, Governor Lamont issued Executive Order 7V (EO 7V), which provides in part that health care providers (both professionals and facilities) are immune from suit for injury or death because of the health care provider’s acts or omissions undertaken in good faith while providing health care services in support of the state’s COVID-19 response, with exceptions for gross negligence, willful misconduct and other more serious acts or omissions. EO 7V has also been interpreted (through its “whereas” clauses) to provide relief from liability for a health care provider’s good faith efforts to provide care during the COVID-19 pandemic. Two trial court decisions issued last year offer new interpretations of EO 7V.

In Parks v. Harborside Connecticut Limited Partnership, a nursing home patient on a fall risk care plan was placed in isolation following her diagnosis of COVID-19, which required the door to her room be shut. She sustained injuries on multiple occasions as a result of unwitnessed falls. The plaintiff and the conservator of the patient brought common law claims of negligence and medical malpractice against the nursing home. The nursing home moved to dismiss on the basis that it was immune under EO 7V.

The court denied the nursing home’s motion. It found that the statute giving the Governor the authority to modify or suspend a “statute, regulation or requirement” during a public health emergency (subsection (1) of CGS §28-9(b)) did not permit him to provide immunity for claims under the common law, such as the negligence and medical malpractice claims that the plaintiffs asserted.   

The court also considered subsection (7) of CGS §28-9(b), which is broader than subsection (1) because it allows the Governor to take “such other steps as are reasonably necessary in the light of the emergency” to protect health, safety and welfare. The court found that it was not “reasonably necessary” to provide immunity from suit for common law claims, and therefore EO 7V’s grant of immunity from suit exceeded the authority provided by subsection (7) of CGS §28-9(b). The court noted that conferring immunity from suit is “exceptional” and looked to COVID-19 executive orders issued by other states that provided immunity from liability, but not from suit.

The court did not take a position on whether providing immunity from liability for common law claims was reasonably necessary so as to be authorized by subsection (b)(7).

Parks v. Harborside Connecticut Limited Partnership, 2024 WL 807694 (February 22, 2024).

The second case (Mills v. Hartford HealthCare Corporation) was remanded to the Connecticut Superior Court (J.D. Hartford) from the Connecticut Supreme Court in 2023. The Connecticut Supreme Court had determined that immunity under EO 7V requires a defendant to demonstrate a nexus between the alleged negligence and the services rendered in support of the state’s COVID-19 response, and found that EO 7V conferred immunity from suit and liability on a hospital and several physicians in connection with their treatment of a patient who died of a heart attack following a delay while they awaited her COVID-19 test result. (Unlike the plaintiffs in the Parks case described above, the plaintiff in Mills sued the health care providers under the state’s wrongful death and survivorship statutes (CGS §§52-555 and 52-599, respectively), not the common law.) The Connecticut Supreme Court found immunity for ordinary negligence under EO 7V, but determined that the plaintiff was entitled to proceed on the counts alleging gross negligence against the defendants.

On remand, the Superior Court (J.D. Hartford), ruling on the defendants’ motion to strike the gross negligence claims, found that the facts alleged did not evidence gross negligence, that is, an extreme departure from the ordinary standard of care. The plaintiff argued that claims of ordinary negligence require a determination of whether the defendant acted reasonably, which cannot be made on a motion to strike, and that this same reasoning should apply to claims of gross negligence. The court disagreed, finding that gross negligence is “fundamentally different” from ordinary negligence because it requires a departure from the standard of care so extreme and egregious as to be readily apparent to a lay person without the need for further findings. The court determined that the plaintiff’s claims did not even arguably satisfy this standard and, further, that the plaintiff had not provided the court with any reason to believe that, if it denied the motion to strike, discovery might have yielded new information that would support the gross negligence claims.

The court also found that the immunity from suit conferred on health care providers by EO 7V counseled against deferring questions about the legal sufficiency of the plaintiff’s gross negligence claims.

Mills v. Hartford HealthCare Corporation, 2024 WL 3530657 (July 15, 2024).

Connecticut does not recognize a distinct cause of action for gross negligence, and the court found that this, arguably, would have been a separate and independent reason for striking the plaintiff’s gross negligence claims, but the defendants did not move to strike on that ground. The plaintiff also argued that the opinion letter of a similar health care provider included a statement that the defendants’ actions constituted gross negligence, but the court stated that it was unaware of any legal authority that would have required it to give any weight or deference to a similar health care provider’s opinion of gross negligence.

Note also that, subsequent to this decision, the plaintiff filed a revised complaint recasting the counts alleging gross negligence, but the court determined that the revised complaint did not allege “a departure from the standard of care that was so egregious as to be obvious to a layperson and to negate the need for expert testimony.”

CT Superior Courts Reach Different Conclusions Regarding Whether Med Mal Opinion Letters Must Address Liability of Unnamed Defendants

Connecticut trial courts have reached different conclusions as to whether a medical malpractice claim against an institutional defendant which includes charges against unnamed agents or employees must be supported by an opinion letter which addresses the liability of each unnamed agent and employee in order to survive a motion to dismiss. Cases decided last year illustrate this split.

In Pantano v. Physicians for Women’s Health, LLC, the plaintiff underwent exploratory surgery. She also underwent removal of her appendix and fallopian tubes, but claimed that neither the surgeon nor certain other unnamed agents of the defendants (which included the hospital) obtained her informed consent for these procedures. The plaintiff included an opinion letter from a health care provider similar to the surgeon, as required by CGS §52-190a. The Superior Court  found that the opinion letter was deficient because the complaint did not identify the other individuals who were allegedly negligent, and therefore the court could not determine whether the author of the opinion letter was a similar health care provider with respect to those other defendants. The court found that the requirement for an expert opinion letter serves a gatekeeping function and that it “makes sense” that some claims against an institutional defendant that are not supported by the necessary opinion letter may be dismissed while others go forward.

Pantano v. Physicians for Women’s Health, LLC, 2024 WL 4211877 (judicial district of Hartford, September 12, 2024).

The court further explained its reasoning in a footnote with reference to Carpenter v. Daar, a 2023 case decided by the Connecticut Supreme Court which held, among other things, that the only question at the motion to dismiss stage is whether the author of the opinion letter is a similar health care provider to the defendant as their respective qualifications are pleaded in the complaint and described in the opinion letter. The court read CGS §52-190a and the Daar case to empower a court to strike specific allegations of a complaint if the opinion letter does not support the allegations.

In Delgado v. Covey, the Superior Court found that if the opinion letter is sufficient to satisfy CGS §52-190a as to one defendant, it is sufficient as to any defendant whose malpractice is alleged to have involved the same procedure or course of treatment. In this case, the plaintiff suffered injuries following knee replacement surgery. The plaintiff attached an opinion letter from a similar health care provider which identified only the surgeon by name. The defendant hospital moved to dismiss one of the counts in the complaint that referred to “staff members, employees, agents, apparent agents, and/or servants” of the hospital who provided treatment and care to the plaintiff because the opinion letter did not address the liability of, or identify, any agent or employee of the hospital other than the named surgeon.

The court denied the motion to dismiss, noting that the requirement of the opinion letter was intended to prevent the filing of frivolous medical malpractice lawsuits, and an opinion letter citing the malpractice of one agent of an institutional defendant serves that end.

Delgado v. Covey, 2024 WL 5135528 (judicial district of New Haven, December 13, 2024)

We would expect a Connecticut appellate court to resolve this split of opinions, but it is unclear when it might do so.

CT District Court Grants Insurers’ Motion to Dismiss All Claims for Reimbursement for COVID-19 Testing

The Connecticut District Court (Haight, J.) granted three health insurers’ motion to dismiss the claims of a physician and his health care practices arising from the insurers’ refusal to reimburse them for COVID-19 and other testing and for other health care services provided to members and/or beneficiaries of the insurers’ health plans during the COVID-19 pandemic.  

The plaintiffs collected nasal swab samples of patients in drive-up and/or walk-through COVID-19 testing operations in Connecticut and New York and processed the testing in the plaintiffs’ laboratories. The plaintiffs tested for COVID-19 and 21 other respiratory illnesses and provided services such as basic examinations, nutrition counseling and counseling regarding “other vitally necessary actions or things to avoid,” as well as telemedicine visits, even if the individuals were asymptomatic. The plaintiffs claimed that the defendant insurers either failed to reimburse or “infinitesimally” reimbursed them for these services and asserted violations of the Families First Coronavirus Response Act (FFCRA), the Coronavirus Aid, Relief, and Economic Security Act (the Cares Act), Section 2719A of the Affordable Care Act (ACA), the Employee Retirement Income Security Act (ERISA), the Connecticut Unfair Insurance Practices Act, the Connecticut Unfair Trade Practices Act and several state common law claims.

The court granted the insurers’ motion to dismiss in its entirety. The court found that there was no private right of action under FFCRA, the CARES Act or Section 2719A of the ACA. Further, the court found that FFCRA and the CARES Act do not mandate coverage of tests for non-COVID respiratory pathogens or post-test services, such as nutrition counseling. The court also determined that Section 2719A of the ACA, which relates to emergency services provided on an out-of-network basis, was not applicable because the services that the plaintiffs provided were not emergency services.  

With respect to the ERISA claims, the court found that the plaintiffs did not have standing because they did not properly allege their denial of benefits claims, nor did they obtain valid assignments of benefits from their patients or exhaust their administrative remedies as required by ERISA. The plaintiffs also brought equitable claims under ERISA, but the court found that these claims were largely duplicative of their other ERISA claims.

Finally, the court exercised its discretion as a federal district court not to hear the plaintiffs’ state law claims.  

Murphy Medical Associates, LLC v. EmblemHealth, Inc., 2024 WL 4388305 (October 3, 2024).

In dismissing the state law claims, the court noted that no Connecticut court has directly addressed whether the insurers’ alleged conduct violated Connecticut common and statutory law and stated that “[c]omity militates toward refraining from attempting to determine how Connecticut’s highest court might rule on such issues.” We will follow this case to determine if the plaintiffs bring their state law claims to a state court in 2025.

Update: Saint Francis Hospital and Hartford HealthCare Reach a Settlement

In our 2023 review of significant health care case law, we summarized a lawsuit filed by Saint Francis Hospital and Medical Center (Saint Francis) against Hartford HealthCare Corporation and various subsidiaries (Hartford HealthCare) in the Connecticut District Court. The suit alleged, among other things, that Hartford HealthCare suppressed competition in the Hartford County area in order to maintain market dominance, causing Saint Francis to lose thousands of commercially insured patients. Earlier this month, the parties settled the litigation. The terms of the settlement have not been disclosed.