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.