Fairfax Hospital v. Curtis

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

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

OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 962068 October 31, 1997

PATRICIA CURTIS

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge

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

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).
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
2
determination from a judicial officer.
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
 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

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.
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
3
(1994) ; 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

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.
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-
4
243(A). The defendants state that the trial court

"concluded that the claims were subject to a two-year

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."
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.