Bullion v. Gadaleto, Civ. No. 94-562-R.

• Decision Date: 06 January 1995
• Docket Number: Civ. No. 94-562-R.
• Citation: 872 F. Supp. 303
• Court: U.S. District Court — Western District of Virginia
• Parties: Gregory BULLION, Plaintiff, v. Angelo F. GADALETO, Ph.D., Defendant.

872 F. Supp. 303

Gregory BULLION, Plaintiff, v. Angelo F. GADALETO, Ph.D., Defendant.

Civ. No. 94-562-R.

United States District Court, W.D. Virginia, Roanoke Division.

January 6, 1995.

John Stiles Huntington, Christiansburg, VA, for plaintiff.

Joy Cummings Fuhr, Stephen Donegan Busch, McGuire, Woods, Battle & Boothe, Richmond, VA, for defendant.

MEMORANDUM OPINION

WILSON, District Judge.

This is an action by Gregory Bullion against his former psychologist, Angelo F. Gadaleto, Ph.D., for breach of professional and fiduciary obligations. Since the amount in controversy, exclusive of interest and costs, exceeds $50,000, and Bullion is a citizen of Virginia and Gadaleto a citizen of Pennsylvania, this court has diversity jurisdiction under 28 U.S.C. § 1332. Gadaleto has filed a motion to dismiss on the grounds that Bullion's claims are time barred. The court finds that the applicable statute of limitations has indeed run. Accordingly, the court will dismiss Bullion's action.

I.

In 1983, Mr. Bullion began counselling sessions with Dr. Gadaleto, a clinical psychologist, at Dr. Gadaleto's then residence in Dublin, Virginia. Mr. Bullion had been experiencing marital problems, and he was referred to Dr. Gadaleto by his family physician. During his therapy sessions, Mr. Bullion told Dr. Gadaleto intimate details of his married life, all of which were confidential in nature.

After several sessions, Dr. Gadaleto suggested that Mrs. Bullion also begin counseling with him — separately. It was during these counseling sessions that Dr. Gadaleto allegedly revealed Mr. Bullion's confidences to Mrs. Bullion. For instance, Dr. Gadaleto supposedly told Mrs. Bullion that Mr. Bullion had been unfaithful to her. Dr. Gadaleto then advised Mr. Bullion to sleep in a separate room from his wife and to lock the door to his room at night. Mr. Bullion asserts that Dr. Gadaleto deliberately revealed confidences and counseled negligently in order to further damage the marital relationship between the Bullions so that he could initiate a sexual liaison with Mrs. Bullion. Dr. Gadaleto was successful in this, and maintained an affair with Mrs. Bullion that lasted several years. Mr. Bullion's last counseling session with Dr. Gadaleto occurred in October of 1984.

In May of 1993, Mr. Bullion first learned of Dr. Gadaleto's indiscretions from his wife. Bullion then filed this suit seeking damages for Gadaleto's negligence and for his breach of professional and fiduciary duties.¹ Dr. Gadaleto has now moved to dismiss Bullion's action.

II.

Mr. Bullion claims that Dr. Gadaleto is liable for damages resulting from his breach of the duty of confidentiality.² Dr. Gadaleto seeks dismissal on the grounds that Virginia courts have not recognized a cause of action based upon a physician's breach of the duty of confidentiality and that, in any case, Bullion's claim is time barred. Assuming that Virginia would recognize the breach of the duty of confidentiality as a valid cause of action,³ the court concludes that the statute of limitations has indeed run on Bullion's claim.

In Virginia, the statute of limitations for personal injury actions is two years:

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. VA.CODE ANN. § 8.01-243(A) (Michie 1992). Since the breach of the duty of confidentiality is a personal injury and no other statute provides an alternate limitations period, such an action must be brought within two years from the date the cause of action accrued.⁴ See Pierce v. Caday, 244 Va. 285, 422 S.E.2d 371, 374 (1992) (stating that "the alleged breach of duty of confidentiality sounds in tort....").

An action accrues when the essential elements of a cause of action are present:

The essential elements of a cause of action, whether based on a tortious act or breach of contract, are (1) a legal obligation of a defendant to the plaintiff, (2) a violation or breach of that duty or right, and (3) harm or damage to the plaintiff as a proximate consequence of the violation or breach.

Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900, 904 (1981). A cause of action does not evolve unless all of these elements are present. For instance, a plaintiff must experience injury or damage before a right of action accrues:

We construe the statutory work "injury" to mean positive, physical or mental hurt to the claimant, not legal wrong to him in the broad sense that his legally protected interests have been invaded. Thus, the running of the time is tied to the fact of harm to the plaintiff, without which no cause of action would come into existence; it is not keyed to the date of the wrongful act, another ingredient of a personal injury cause of action.

Id. When injury occurs, however, no matter how slight, the cause of action then accrues even if more substantial damage occurs at a later date. McHenry v. Adams, 248 Va. 238, 448 S.E.2d 390, 393 (1994). Furthermore, a claimant need not know of his injury in order for the cause of action to accrue.⁵

The immediate question here is whether Mr. Bullion's claim is barred by the statute of limitations: an issue that ultimately turns on whether Bullion's cause of action accrued at the time Dr. Gadaleto revealed his confidences, in 1983 and 1984, or only after Bullion learned of Gadaleto's indiscretions, in 1993. Dr. Gadaleto argues that Mr. Bullion was injured sufficiently for his action to accrue in 1984 because, at that time, Dr. Gadaleto allegedly caused the Bullions' marriage to deteriorate and harmed Mr. Bullion's reputation with his wife. However, Mr. Bullion asserts that he first sustained actionable injury when he actually learned of Dr. Gadaleto's wrongful disclosures in 1993 and subsequently suffered mental anguish.

No Virginia court has discussed the injury necessary for a cause of action to accrue in the duty of confidentiality context. Indeed, few courts in other states have addressed the issue. See Alberts v. Devine, 395 Mass. 59, 479 N.E.2d 113, 124 (1985) (stating that merely "a violation of the duty of confidentiality gives rise to a cause of action sounding in tort"), cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985); Tighe v. Ginsberg, 146 A.D.2d 268, 540 N.Y.S.2d 99, 101 (N.Y.App.Div.1989) (finding, without comment, that the breach of confidentiality action accrued at the time of the unauthorized disclosure). In essence, this issue is one of first impression.

In the physician/patient context, the duty of confidentiality is recognized as part of the Hippocratic Oath. Stempler v. Speidell, 100 N.J. 368, 495 A.2d 857, 860 (1985). The rationale for this ethical rule is readily apparent:

The benefits which inure to the relationship of physician-patient from the denial to a physician of any right to promiscuously disclose such information are self-evident. On the other hand, it is impossible to conceive of any countervailing benefits which would arise by according a physician the right to gossip about a patient's health.

Id. (quoting Hague v. Williams, 37 N.J. 328, 181 A.2d 345 (1962)). When a physician discloses confidential information without authority, he invades two distinct interests of the patient: (1) the patient's interest in the security of the confidential relationship and his corresponding expectation of secrecy; and (2) the...