MICHELLE DILIETO et al. v.

COUNTY OBSTETRICS AND GYNECOLOGY GROUP, P.C., et al., SC 17471

Judicial District of Waterbury

     Appellate Jurisdiction; Medical Malpractice; Health Records; Work Product Doctrine; Whether a Trial Court's Order Requiring a Hospital to Give Patient Access to her Tissue Slides Constitutes an Appealable Final Judgment; Whether Slides of Patient's Tissue Created by Defense for Purpose of Litigation Constitute a Health Record and, thus, must be Disclosed to the Patient.  Michelle DiLieto brought this medical malpractice action against several defendants, including Yale University School of Medicine (Yale), claiming that she had undergone an unnecessary hysterectomy as a result of their having misdiagnosed her with cancer.  DiLieto subsequently filed a bankruptcy petition and the bankruptcy trustee was substituted as the plaintiff.  During trial, the trustee sought access to slides of additional "recuts" done by Yale of DiLieto's uterus tissue that was removed prior to surgery.  The trial court sustained Yale's objection to the request, ruling that the trustee lacked standing to request disclosure of the slides.  Subsequently, the jury rendered a verdict in favor of Yale and the trustee appealed.  The Supreme Court reversed and remanded the case for a new trial.  The Supreme Court, however, affirmed the trial court's decision that the trustee lacked standing to seek access to DiLieto's tissue slides.  See DiLieto v. County Obstetrics & Gynecology Group, P.C., 265 Conn. 79 (2003).  On remand, DiLieto intervened in the action for purposes of obtaining access to the aforementioned slides.  Subsequently, the trial court granted DiLieto's motion to compel production of the tissue slides pursuant to General Statutes § 19a-490b, which requires "an institution" to provide a patient with her health records and "a reasonable opportunity to examine retained tissue slides and retained pathology tissue blocks." The court, however, sua sponte precluded the use of the slides as evidence at the trial, concluding that they were work product "created at the behest of defense counsel and examined by a non-testifying expert for purposes of litigation rather than for purposes of improving the intervenor's health."  DiLieto filed this appeal, claiming that the trial court improperly imposed restrictions on the use of her medical records.  Yale cross appealed, claiming that, because the slides containing recuts of DiLieto's tissues were made by a non-testifying expert at the direction of defense counsel for the sole purpose of litigation, the slides cannot be considered a "health record" and, therefore, are not subject to disclosure under § 19a-490b.  After judgment was rendered in favor of the trustee in the underlying malpractice action, DiLieto withdrew her appeal.  Yale's cross appeal, however, remains pending.  Because this appeal was filed before the underlying action had been resolved, the Supreme Court will determine as a threshold matter whether the trial court's order allowing DiLieto access to her tissue slides constitutes an appealable final judgment.