Barber v. Camden Clark Mem'l Hosp. Corp., 17-0643

• Court: Supreme Court of West Virginia
• Writing for the Court: LOUGHRY, Justice
• Citation: 815 S.E.2d 474
• Parties: Jill C. BARBER, Plaintiff Below, Petitioner v. CAMDEN CLARK MEMORIAL HOSPITAL CORP., Defendant Below, Respondent
• Docket Number: No. 17-0643,17-0643
• Decision Date: 31 May 2018

815 S.E.2d 474

Jill C. BARBER, Plaintiff Below, Petitioner
v.
CAMDEN CLARK MEMORIAL HOSPITAL CORP., Defendant Below, Respondent

No. 17-0643

Supreme Court of Appeals of West Virginia.

Submitted: May 15, 2018
Filed: May 31, 2018
Concurring Opinion of Justice Kaufman June 29, 2018

James D. McQueen, Jr., Esq., McQueen Davis, PLLC, Huntington, West Virginia and Christopher J. Heavens, Esq., Heavens Law Firm, PLLC, Charleston, West Virginia, Attorneys for Petitioner

Thomas J. Hurney, Jr., Esq., Laurie K. Miller, Esq., Jackson Kelly PLLC, Charleston, West Virginia, Attorneys for Respondent

LOUGHRY, Justice:

815 S.E.2d 477

The petitioner and plaintiff below, Jill C. Barber, appeals the June 12, 2017, order of the Circuit Court of Wood County dismissing the complaint she filed against the respondent and defendant below, Camden Clark Memorial Hospital Corp. ("Camden Clark"), alleging that it wrongfully disclosed her confidential mental health treatment records in a federal court proceeding. Having considered the parties' arguments, the submitted appendix record, and pertinent authorities, we find the circuit court erred by dismissing the complaint. Accordingly, we reverse the circuit court's order and remand this case for further proceedings consistent with this opinion.

I. Factual and Procedural Background

In 2014, Ms. Barber brought an action in the United States District Court for the Southern District of West Virginia against Sedwick Claims Management Services alleging fraud in connection with the handling of a worker's compensation claim.¹ In January 2016, during the federal proceeding, Sedwick, through its counsel, Frith Anderson & Peak, served a subpoena duces tecum on Camden Clark requesting all of Ms. Barber's medical records. Specifically, the subpoena sought production of:

All Medical Records of Jill C. Barber ... generated by any and all health care providers which are in your possession; inclusive of correspondence, referrals, hospital admission sheets, patient intake and information sheets, progress notes, medical reports, discharge summaries, E.R. records, medical test results and data, medical opinions, physical therapy records, rehabilitation records, lab tests, radiology and x-ray reports (and/or films if specified)[.]

Ms. Barber received notice of the subpoena but did not file a motion to quash nor object in any way.

On February 8, 2016, Camden Clark responded to the subpoena by producing more than one thousand pages of documents including hospital records reflecting that Ms. Barber had received in-patient mental health

815 S.E.2d 478

treatment when she was a teenager.² Frith, Anderson & Peak provided copies of the medical records produced by Camden Clark to Ms. Barber's counsel on February 26, 2016. Ms. Barber's counsel did not review the documents, and Ms. Barber never informed her counsel of her mental health treatment as a teenager.

On March 7, 2016, Ms. Barber was deposed in the federal court case. During her deposition, Ms. Barber was asked whether she had ever received any psychiatric or mental health treatment in her lifetime. When she replied "no," she was confronted with her mental health records that had been produced by Camden Clark. Thereafter, Ms. Barber filed this action in the Circuit Court of Wood County.

In her January 23, 2017, complaint, Ms. Barber alleged that Camden Clark breached its "statutory and common law duty to restrict access to [her] mental health medical records, including those defined as 'confidential information' under [West Virginia Code] § 27-3-1 (2008)."³ Ms. Barber asserted that Camden Clark had disclosed her confidential information without her consent and without a court order as provided in West Virginia Code § 27-3-1(b)(3). Ms. Barber also asserted a claim for intentional infliction of emotional distress. Ms. Barber alleged she "was in denial about her prior psychiatric treatment and did not inform anyone, including her attorney, that she had been treated for mental health as an adolescent" and "[u]pon being confronted with this confidential material

815 S.E.2d 479

... [she] suffered extreme emotional distress, humiliation and embarrassment."

In response to the complaint, Camden Clark filed a motion to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure.⁴ Camden Clark asserted that it had fully complied with the Medical Records Act, West Virginia Code § 57-5-4a to - 4j (1981) (hereinafter the "Act"),⁵ and 45 C.F.R. § 164.512 (2016), the corresponding federal regulation under the Health Insurance Portability and Accountability Act of 1996 (hereinafter "HIPAA regulation"),⁶ which govern a non-party hospital's response to a subpoena for medical records. Camden Clark argued that Ms. Barber's failure to plead a violation of the Act and the HIPAA regulation required dismissal of her complaint. Following a hearing on the matter, the circuit court entered an order on June 12, 2017, dismissing Ms. Barber's statutory and common law claims. The circuit court found that "a patient cannot rely on the protections of West Virginia Code § 27-3-1 to bring an action against a hospital that properly complied with West Virginia and/or HIPAA regulations in responding to a subpoena for the patient's medical records where the patient never raised an objection to the subpoena[.]" Upon dismissal of her complaint, Ms. Barber filed this appeal.

II. Standard of Review

Our standard for reviewing a circuit court's dismissal of a complaint is well

815 S.E.2d 480

established: "Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo ." Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). As discussed above, the circuit court dismissed Ms. Barber's complaint based on its finding that Camden Clark had complied with certain statutory and regulatory provisions. When reviewing a legal question involving statutory interpretation, we also employ the de novo standard. As set forth in syllabus point one of Appalachian Power Company v. State Tax Department of West Virginia , 195 W.Va. 573, 466 S.E.2d 424 (1995) : "Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Under this plenary standard, we consider the parties' arguments.

III. Discussion

Ms. Barber contends that the circuit court erred by finding that her mental health records were properly disclosed by Camden Clark pursuant to the Act and the corresponding HIPAA regulation. She argues that her mental health records were not subject to disclosure absent her written consent or a court order as provided in West Virginia Code § 27-3-1(b)(3), the exception that would have allowed disclosure of her confidential mental health records during the federal proceeding. Ms. Barber further disputes the circuit court's finding that by failing to object to the subpoena, she authorized the disclosure of her confidential mental health records. Finally, she maintains that neither the Act, nor the HIPAA regulation, precludes an action against a hospital that discloses mental health records in violation of West Virginia Code § 27-3-1.

We have previously recognized that " W.Va. Code, 27-3-1(a), provides for confidentiality of communications and information obtained in the course of treatment and evaluation of persons who may have mental or emotional conditions or disorders, subject to the exceptions set out in W.Va.Code, 27-3-1(b)." Syl. Pt. 1, State v. Simmons , 172 W.Va. 590, 309 S.E.2d 89 (1983). We have also observed that "[t]his [statute's] location in Chapter 27 relating to mentally ill persons ... suggest[s] that the legislature intended this confidentiality with regard to communication and information to be maintained between mental health professionals and their clients." Id. at 597, 309 S.E.2d at 96. Accordingly, we have held that "there is a private tort cause of action for a violation of W.Va.Code , 27-3-1 [1977]." Syl. Pt. 1, Allen v. Smith , 179 W.Va. 360, 368 S.E.2d 924 (1988).

West Virginia Code §§ 57-5-4b through - 4j provides the procedure that hospitals must follow to disclose medical records in response to a subpoena. With regard to the Act, we have stated that

[a]ny time a subpoena duces tecum is issued to require the production of hospital records as defined in W.Va. Code § 57-5-4a(a) (1981) (Repl.Vol.1997), whether such records are sought in connection with a hearing, deposition, trial or other proceeding, or are merely sought for inspection and copying, the requirements of W.Va. Code §§ 57-5-4a – 4j apply and must be followed.

Syl. Pt. 3, Keplinger v. Virginia Elec. & Power Co. , 208 W.Va. 11, 537 S.E.2d 632 (2000). Under West Virginia Code § 57-5-4a(a) (1981),

"[r]ecords" means and includes without restriction , those medical histories, records, reports, summaries, diagnoses, and prognoses, records of treatment and medication ordered and given, notes, entries, X-rays, and other written or graphic data prepared, kept, made or maintained in hospitals that pertain to hospital

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