Avery Center for Obstetrics and Gynecology, Westport. Photo: Google

A Bridgeport Superior Court jury has awarded $853,000 to a former Connecticut resident whose medical records were released to her former boyfriend without her knowledge.

At an earlier stage, the Connecticut Supreme Court used this case to state in a matter of first impression that a violation of medical privacy under a federal statute could lead to tort liability under Connecticut law.

A lawsuit alleges the Westport, Connecticut-based Avery Center for Obstetrics and Gynecology complied with a subpoena by Andro Mendoza's attorneys to release all of Emily Byrne's medical records.

The medical records were seen by Mendoza, who was the father of Byrne's daughter. Byrne broke off the relationship with Mendoza about the time she found out she was pregnant and, the lawsuit claims, Mendoza then used that information in a custody fight for the baby to harass and try to extort money from Byrne.

Byrne's attorney, Bruce Elstein of Goldman Gruder & Woods, argued that the unauthorized release of medical files was in violation of regulations under the federal Health Insurance Portability and Accountability Act. The lawsuit, which began 11 years ago, twice came before the Connecticut Supreme Court. That court ruled that a patient in Connecticut harmed by the breach of medical confidentiality had a tort remedy. The case was remanded to Superior Court for trial.

A six-person jury heard six days of testimony, including one full day of testimony by Byrne, now 43. The $853,000 verdict was handed up on Dec. 5. The Avery Center has until Dec. 26 to appeal to the Connecticut Appellate Court.

Avery's attorneys, James Biondo and Diana Carlino, both with the Stamford offices of Rosenblum Newfield, did not respond to requests for comment Thursday.

Elstein said the crux of his case boiled down to Avery releasing the sensitive medical information against his client's wishes. Byrne testified at trial on how that affected her life, Elstein said.

“I don't believe they knew what to do under HIPAA,” Elstein said on why he believes the health center released the information. “They were inadequately trained and they did not even consult a manual prepared for them by a consultant on what to do when presented with a subpoena.”

Elstein said Avery should have “notified the patient of the existence of a subpoena to allow her to object if she wanted to. They did not do that.”

Byrne's testimony, Elstein believes, swayed the jury in his client's favor.

“Emily spoke and the jury heard her,” Elstein said. “She was very compelling. She was able to describe the impact the disclosure had on her and her family. She had some pre-existing sexual assault trauma in her life and the disclosure was bringing back to the forefront the old trauma.”

Also testifying at trial were Byrne's social worker and psychologist.

“Both discussed how she suffered from PTSD [post-traumatic stress disorder] arising out of the impact of the disclosure,” Elstein said. “The social worker went even further and made a statement that the disclosure of the medical records and the use by the ex against her was, in her mind, similar to her experience of being violated as a little girl.”

Elstein said his biggest obstacle was overcoming the “legal issues presented by the HIPAA pre-emption issue and the lack of tort previously for these breach-of-confidentiality cases.”

In court papers, the defense argued the action should be dismissed for lack of subject-matter jurisdiction. The defense also argued “these claims are an [attempt] to bring a private right of action for violation of HIPAA.” The defense likened the negligence action to Connecticut Unfair Trade Practices Act claims arising from HIPAA violations, which Connecticut courts had routinely rejected in the past.

The defense offered $100,000 before trial, which Elstein turned down. The plaintiff's side was looking for the full $1 million insurance policy limit of Avery.

Today, Elstein said, Byrne and her daughter, now 13, are doing well. Mendoza, Elstein said, was granted supervised visitation rights of the girl in 2009, but, he said, “he has seen his child less than four hours since then and has not seen her at all in the last six years.” Mendoza currently lived in Texas, Elstein said.

“Emily is moving on with her life,” Elstein said. “She has found success career-wise and as a mother.” Byrne, Elstein said, is the director of a Vermont medical office.