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FAIRFAX HOSPITAL, BY AND THROUGH INOVA HEALTH SYSTEM HOSPITALS, INC. v. CURTIS


FAIRFAX HOSPITAL, BY AND
THROUGH INOVA HEALTH SYSTEM HOSPITALS, INC.

v.

CURTIS


October 31, 1997

Record No. 962068

FAIRFAX HOSPITAL, BY AND THROUGH

INOVA HEALTH SYSTEM HOSPITALS, INC.

v.

PATRICIA CURTIS

OPINION BY JUSTICE LEROY R. HASSELL, SR.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

David T. Stitt, Judge

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Kinser, JJ., and Whiting, Senior Justice


I.

In this appeal we consider, among other things, whether a
patient has a cause of action against a health care provider
which voluntarily disseminated the patient’s medical records to
third parties without the patient’s authorization.

II.

Seeking compensatory and punitive damages, Patricia Curtis
filed a motion for judgment against INOVA Health System
Foundation, Inc., Linda Beckett, and Nancy Perrelli and another
motion for judgment against INOVA Health System Hospitals, Inc.,
which owns and operates Fairfax Hospital. Both motions for
judgment were consolidated by order of the trial court. As
relevant to this appeal, the plaintiff alleged in her motions for
judgment that the defendants improperly disseminated her
"private and confidential medical records and treatment
information" to third persons.

The defendants asserted in a demurrer and plea in bar that:
the plaintiff waived any privilege of confidentiality in her
medical records by filing a medical malpractice claim; the
plaintiff had not alleged a cause of action because she sought
damages solely for emotional distress; and the plaintiff’s claims
were barred by the applicable statute of limitations. Overruling
the demurrer, the court held that the plaintiff had a cause of
action against the defendants for the unauthorized dissemination
of her medical records without her consent. The court also denied
the defendants’ special plea of the statute of limitations.

The litigants stipulated the relevant facts underlying this
dispute, but disagreed about the application of the law.
Consequently, the litigants submitted factual statements with
exhibits to the trial court and stipulated damages. The trial
court entered a judgment on behalf of the plaintiff for the
amount of the stipulated damages, $100,000, and the defendants
appeal.

III.

Plaintiff received prenatal care at Fairfax Hospital beginning
in July 1988. She was admitted to Fairfax Hospital in January
1989, and gave birth to a child, Jessie Curtis, on February 13,
1989. During the course of such treatment, she communicated
personal information, including her medical history, to Fairfax
Hospital’s employees. Jessie later suffered a cardiopulmonary
arrest and died.

In March 1990, Patricia Curtis, in her capacity as
administrator of the estate of Jessie Curtis, filed a notice of
claim against Fairfax Hospital System, Linda Beckett, and others,
pursuant to the Virginia Medical Malpractice Act.[1] Beckett
was a nurse in the Hospital’s neonatal intensive care unit at the
time of Jessie’s birth.

Following receipt of the notice of claim, Nancy Perrelli,
INOVA Health System Foundation’s Director of Legal Affairs,
requested that the Hospital provide a complete copy of Patricia
Curtis’ medical records to Gerald R. Walsh, an attorney for the
Hospital. Subsequently, Walsh directed "that a copy of the
medical records be provided to Nurse Beckett." Perrelli
complied with Walsh’s directive.

The plaintiff’s counsel learned during a discovery deposition
of Beckett that she "had possession of, and had reviewed
three to four days before the deposition, the medical records
obtained from Perrelli, pursuant to the direction of defense
counsel Walsh. Beckett brought a copy of the medical records to
the deposition." The medical records contained very personal
information about plaintiff’s medical history before and after
her pregnancy with Jessie Curtis.

IV.

A.

The defendants, relying upon Pierce v. Caday,
244 Va. 285, 422 S.E.2d 371 (1992), argue that Virginia does not
recognize a cause of action against a health care provider for
the unauthorized disclosure of a patient’s medical records. The
plaintiff asserts, however, that she does have a cause of action
against the defendants for the voluntary disclosure of her
confidential medical records without her authorization. We agree
with the plaintiff.

In Pierce v. Caday, a patient filed an action
against her physician for the physician’s alleged failure to
assure nondisclosure of the patient’s confidential information.
The patient alleged that, even though her physician had assured
her that certain matters she had discussed with him would remain
confidential, the physician’s employees had discussed the
confidential information with others. The trial court dismissed
the patient’s action because, inter alia, she had
failed to give the physician written notice of the claim prior to
filing suit, as required by former Code ? 8.01-581.2(A) of
the Virginia Medical Malpractice Act, and her motion for judgment
was insufficient in law because it failed to state a cause of
action.

Declining to decide whether Virginia recognizes a cause of
action against a health care provider for the wrongful disclosure
of the patient’s medical records and information because such
issue was not dispositive of our decision in Pierce, we
stated:

"Some courts in other jurisdictions
. . . have recognized the nonstatutory right of
a patient to recover damages from a physician for
unauthorized disclosure of confidential communications
concerning the patient; other courts have refused to
create such a cause of action. . . .

In view of the General Assembly’s repeated recognition
of the privilege, we easily could adopt the view that a
civil remedy lies in favor of a patient against a
physician if the physician, or anyone under the
physician’s control, without the patient’s consent makes
an extra-judicial disclosure of confidential information
obtained in the course of the physician-patient
relationship. . . .

But it is unnecessary for us today to recognize
expressly the existence of such a cause of action in
Virginia in order to decide this case. Indeed, the issue
has not been raised or debated, the parties presuming
that such a cause of action is available. Therefore, we
will assume without deciding that such an action will
lie."

 

244 Va. at 290-91, 422 S.E.2d at 373-74 (citations omitted).

In our jurisprudence, a health care provider owes a duty of
reasonable care to the patient. Included within that duty is the
health care provider’s obligation to preserve the confidentiality
of information about the patient which was communicated to the
health care provider or discovered by the health care provider
during the course of treatment. Indeed, confidentiality is an
integral aspect of the relationship between a health care
provider and a patient and, often, to give the health care
provider the necessary information to provide proper treatment,
the patient must reveal the most intimate aspects of his or her
life to the health care provider during the course of treatment.

We hold that in the absence of a statutory command to the
contrary, or absent a serious danger to the patient or others, a
health care provider owes a duty to the patient not to disclose
information gained from the patient during the course of
treatment without the patient’s authorization, and that violation
of this duty gives rise to an action in tort. We observe that our
holding today is consistent with decisions of most jurisdictions
which have considered this issue. See Horne v. Patton,
287 So.2d 824, 830 (Ala. 1974); Alberts v. Devine,
479 N.E.2d 113, 119 (Mass.), cert. denied, 474 U.S.
1013 (1985); Simonsen v. Swenson, 177 N.W. 831, 832
(Neb. 1920); MacDonald v. Clinger, 446 N.Y.S.2d
801, 804 (N.Y. App. Div. 1982); Humphers v. First
Interstate Bank
, 696 P.2d 527, 535 (Or. 1985); but see
Quarles v. Sutherland, 389 S.W.2d 249, 252 (Tenn.
1965) (rejecting a cause of action in tort for health care
provider’s dissemination of patient’s confidential information).

B.

The defendants suggest that even if the plaintiff has a cause
of action for the wrongful disclosure of her medical records, she
is not entitled to recover against them because she placed her
medical condition "at issue" when she filed the notice
of medical malpractice against the Hospital and others to recover
damages for the death of her daughter. The plaintiff responds
that she did not waive her right to the confidentiality of her
medical records by preparing to file, and by later filing, an
action against the Hospital and others in her capacity as
administrator for her deceased daughter’s estate.

Code ? 8.01-399, in effect when the wrongful disclosures
were made, and which we have described as "merely a rule of
evidence," Pierce v. Caday, 244 Va. at 290,
422 S.E.2d at 373, stated:

"Except at the request of, or with the consent
of, the patient, no duly licensed practitioner of any
branch of the healing arts shall be required to testify
in any civil action, respecting any information which he
may have acquired in attending, examining or treating the
patient in a professional capacity if such information
was necessary to enable him to furnish professional care
to the patient; provided, however, that when the
physical or mental condition of the patient is at issue
in such action
. . . no fact communicated
to, or otherwise learned by, such practitioner in
connection with such attendance, examination or treatment
shall be privileged and disclosure may be required."
(Emphasis added).

 

Code ? 8.01-399, before amendment in 1993, permitted
disclosure of information that a patient had conveyed to a health
care provider when that patient’s physical or mental condition
was at issue in a civil action in certain circumstances.
Additionally, the express words contained in the aforementioned
version of Code ? 8.01-399 state that "disclosure may
be required."

This statute did not automatically compel disclosure of a
patient’s confidential medical information in all instances, but
permitted a court, in the exercise of its discretion, to require
disclosure of such information. We hold that if the patient did
not manifestly place his or her medical condition at issue in a
civil proceeding, then the statute required a determination by a
judicial officer whether the patient’s condition was at issue in
the civil action before the health care provider was entitled to
disseminate the patient’s confidential communications to third
persons.

The notice of claim that the plaintiff forwarded to the
Hospital and others, in her capacity as administrator of her
daughter’s estate, simply did not manifestly place Curtis’
medical condition at issue. Thus, before disseminating such
information, the Hospital was required, in accordance with the
aforementioned version of Code ? 8.01-399, to obtain
permission from either a court or the patient. The defendants
concede that they unilaterally disseminated the plaintiff’s
confidential medical records to an attorney and a nurse without
the requisite consent from the patient or determination from a
judicial officer. [2]

C.

The defendants point out that during the
subsequent medical malpractice panel proceedings, the chairman of
the panel granted Beckett’s motion to depose Curtis over her
objections because "Patricia Curtis’ health is at issue in
this action, [and] the privilege may not be asserted." The
defendants also note that in the civil action styled Patricia
Curtis, as Administrator for the Estate of Jessie Curtis, et al.

v. Fairfax Hospital Systems, Inc., the trial court ruled
that the defendants were entitled to obtain Patricia Curtis’
medical records from other health care providers covering a
period of two years before and one year after the birth of the
deceased infant. Continuing, the defendants assert that these
rulings demonstrate that the plaintiff’s medical condition was at
issue and, hence, she had no privilege in the disseminated
medical records.

The defendants’ contentions are not persuasive. The defendants
disseminated the plaintiff’s medical records before the
aforementioned rulings of the medical malpractice panel and the
trial court in the subsequent civil action. And, as we have
already noted, an independent judicial officer, not the Hospital
or the director of legal affairs for the Hospital’s parent
company, was the appropriate person to make the determination
whether Curtis’ physical condition was at issue.

D.

The defendants contend that a health care provider who
discloses medical confidences without the patient’s consent
should only be subjected to liability if such disclosure was made
in a "non-judicial" context. The defendants say that
"[i]n Pierce v. Caday, this Court carefully
noted that if it were to recognize a theory of tort liability
against a physician for the unauthorized disclosure of medical
confidences, such an action would be limited to ‘extra-judicial’
disclosures."

As we have already demonstrated, the defendants’ assertion is
without merit because in Pierce we did not consider
whether we would recognize a cause of action for the wrongful
dissemination of a patient’s medical information; nor did we
articulate what limitations, if any, we would place upon such
cause of action. Furthermore, the disclosure of the plaintiff’s
confidential information in this case did constitute an
"extra-judicial disclosure." Here, the Hospital’s
director of legal affairs made a unilateral decision to
disseminate the plaintiff’s medical records to the Hospital’s
attorney and a nurse without a judicial determination that the
plaintiff’s physical condition was at issue and without the
determination that disclosure of those records was required.

V.

The defendants assert that the trial court erred by ruling
that the plaintiff was entitled to recover for emotional distress
caused by the defendants’ negligent acts. We disagree.

As a general rule, in tort cases, absent accompanying physical
harm or wanton and willful conduct, emotional distress damages
are not recoverable. Carstensen v. Chrisland Corp.,
247 Va. 433, 446, 442 S.E.2d 660, 668 (1994)[3] ;
Sea-Land Serv., Inc. v. O’Neal, 224 Va. 343, 354,
297 S.E.2d 647, 653 (1982); Womack v. Eldridge, 215
Va. 338, 340, 210 S.E.2d 145, 147 (1974). However, as we noted in
Sea-Land, there are exceptions to this general rule:
"[W]e have approved the recovery of damages for humiliation,
embarrassment, and similar harm to feelings, although
unaccompanied by actual physical injury, where a cause of
action existed independently of such harm
." 224 Va. at
354, 297 S.E.2d at 653.

Here, we are of opinion that the plaintiff’s cause of action
falls within the exception to the general rule because her cause
of action is independent of the humiliation, embarrassment, and
harm to feelings that she suffered. Without question, a patient,
whose intimate personal medical information is wrongfully
disseminated to third parties, will experience some degree of
humiliation, embarrassment, and hurt. Under these circumstances,
we perceive no logical reason to refuse recovery of emotional
distress damages.

VI.

The defendants argue that the trial court erred by failing to
grant their motion for summary judgment which asserted that the
plaintiff’s claims are barred by the two-year statute of
limitations contained in Code ? 8.01-243(A).[4] The
defendants state that the trial court "concluded that the
claims were subject to a two-year limitations period which
accrued on March 7, 1990. . . . Since the case at
bar was not filed until February 4, 1994, Plaintiff’s claims
would be barred by limitations, but for the Court’s conclusion
that the filing of the wrongful death claim in November 1991
tolled the statute until the entry of a final order, which
followed commencement of the instant actions." Responding,
the plaintiff argues that the defendants are precluded from
raising this issue on appeal because they failed to raise it in
the trial court. We agree with the plaintiff.

As we have already stated, the plaintiff filed two separate
motions for judgment against the defendant, and, the second
motion, styled Patricia Curtis, Plaintiff v. Fairfax
Hospital, by and through INOVA Health System Hospitals, Inc.
,
contained a count captioned "Count I: Medical
Malpractice." The plaintiff alleged in that count that the
defendant, Fairfax Hospital, breached the applicable standard of
care owed to her by disseminating her medical records without her
authorization.

The defendants filed a motion for summary judgment raising the
statute of limitations defense. The defendants stated in their
motion: "[d]efendants, Inova Health System Foundation, Inc.,
Nancy Perrelli, and Fairfax Hospital by and through Inova Health
System Hospitals, Inc., . . . move this Court
. . . for entry of Summary Judgment with respect to
Count III (Conspiracy to Commit Malpractice) and Count V
(Punitive Damages)." The defendants’ "Memorandum of
Points and Authorities in Support of Motion for Summary
Judgment" asserted that the plaintiff’s claims of conspiracy
were barred by the two-year statute of limitations contained in
Code ? 8.01-243(A).

The trial court’s opinion letter, which explained the court’s
rationale for denying the defendants’ motion for summary judgment
states: "[t]he defendants move now for summary judgment as
to Count III (conspiracy to commit malpractice) and Count V
(punitive damages), in support of which they claim that the
statute of limitations bars the
action. . . ." The trial court’s order,
denying the motion for judgment, incorporated its opinion letter
by reference. The defendants filed a motion for reconsideration
which stated: "[d]efendants, Inova Health System Foundation,
Inc., Nancy Perrelli, and Fairfax Hospital . . .
respectfully move this Court for reconsideration of its Order
denying defendants’ Motion for Summary Judgment with respect to
Count III (Conspiracy to Commit Malpractice) and Count V
(Punitive Damages)."

The defendants did not request, and the trial court did not
make, a ruling on the issue whether the plaintiff’s cause of
action for negligence in Count I of her motion for judgment was
barred by the statute of limitations. And, on the morning of
trial, the plaintiff took a voluntary non-suit of her purported
claim of conspiracy to commit malpractice. The defendants’
statute of limitations defense was limited to the plaintiff’s
claim of conspiracy to commit malpractice, and the statute of
limitations defense was not asserted against the plaintiff’s
negligence claim. Hence, the defendants may not, for the first
time on appeal, assert the statute of limitations defense to bar
the plaintiff’s negligence action. Rule 5:25.

VII.

In view of the foregoing, we will affirm the judgment of the
trial court.

Affirmed.

 

 

FOOTNOTES:

[1]  Patricia Curtis,
administrator of the estate of Jessie Curtis, subsequently filed
a motion for judgment against Fairfax Hospital and recovered a
judgment which was affirmed by this Court. See Fairfax
Hosp. Sys., Inc.
v. Curtis, 249 Va. 531, 457 S.E.2d 66
(1995).

[2] Code ? 8.01-399 has been
subsequently amended and currently states in relevant part:

 

"A. Except at the request or with the consent of
the patient, no duly licensed practitioner of any branch
of the healing arts shall be required to testify in any
civil action, respecting any information which he may
have acquired in attending, examining or treating the
patient in a professional capacity.

B. Notwithstanding subsection A, when the physical or
mental condition of the patient is at issue in a civil
action, facts communicated to, or otherwise learned by,
such practitioner in connection with such attendance,
examination or treatment shall be disclosed but only in
discovery pursuant to the Rules of Court or through
testimony at the trial of the action. In addition,
disclosure may be ordered when a court, in the exercise
of sound discretion, deems it necessary to the proper
administration of justice. However, no disclosure of
facts communicated to, or otherwise learned by, such
practitioner shall occur if the court determines, upon
the request of the patient, that such facts are not
relevant to the subject matter involved in the pending
action or do not appear to be reasonably calculated to
lead to the discovery of admissible evidence.

. . . .

D. Neither a lawyer, nor anyone acting on the lawyer’s
behalf, shall obtain, in connection with pending or
threatened litigation, information from a practitioner of
any branch of the healing arts without the consent of the
patient except through discovery pursuant to the Rules of
the Court as herein provided.

. . . .

F. Nothing herein shall prevent a duly licensed
practitioner of the healing arts from disclosing any
information which he may have acquired in attending,
examining or treating a patient in a professional
capacity where such disclosure is necessary in connection
with the care of the patient, the protection or
enforcement of the practitioner’s legal rights including
such rights with respect to medical malpractice actions,
or the operations of a health care facility or health
maintenance organization or in order to comply with state
or federal law.

[3] Contrary to the defendants’
assertions, the plaintiff’s claim is unlike the claims we
considered in Carstensen v. Chrisland Corp. There,
the plaintiffs alleged, among other things, that they experienced
humiliation, embarrassment, anger, frustration, and emotional
distress because of a title insurance company’s breach of its
alleged fiduciary duty to them. Approving the trial court’s
judgment which dismissed the plaintiffs’ claims, we held that the
plaintiffs failed to identify an exception to the general rule
which would have permitted them to recover emotional distress
damages. 247 Va. at 445-46, 442 S.E.2d at 667-68.

[4] Code ? 8.01-243(A) states
in relevant part: "Unless otherwise provided in this section
or by other statute, every action for personal injuries, whatever
the theory of recovery . . . shall be brought within
two years after the cause of action accrues."

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