Childs v. Williams, 58661

• Court: Missouri Court of Appeals
• Writing for the Court: STEPHEN N. LIMBAUGH, Jr.
• Citation: Childs v. Williams, 825 S.W.2d 4 (Mo. App. 1992)
• Decision Date: 04 February 1992
• Docket Number: No. 58661,58661
• Parties: 7 IER Cases 255 Katie CHILDS, Plaintiff/Appellant, v. Robert L. WILLIAMS, Ph.D., Defendant/Respondent.

Page 4

825 S.W.2d 4

7 IER Cases 255

Katie CHILDS, Plaintiff/Appellant, v. Robert L. WILLIAMS, Ph.D., Defendant/Respondent.

No. 58661.

Missouri Court of Appeals,

Eastern District,

Division Two.

Feb. 4, 1992.

Jack B. Spooner, St. Louis, for plaintiff/appellant.

Jeffry S. Thomsen, James K. Muhlenbruch, St. Louis, for defendant/respondent.

STEPHEN N. LIMBAUGH, Jr., Special Judge.

Plaintiff, Katie Childs, having won a jury award of $50,000 on a claim of invasion of

privacy, appeals the trial court's grant of judgment notwithstanding the verdict. Ms. Childs also appeals the trial court's dismissal of a second count which alleged intentional infliction of emotional distress. We affirm.

The trial court granted j.n.o.v. for defendant because Ms. Childs failed to prove two essential elements of her cause of action for invasion of privacy or more specifically for public disclosure of private facts. These unproved elements, the court ruled, are (1) publication by defendant of "private facts" about plaintiff and (2) the absence of waiver by plaintiff of her right to privacy. Ms. Childs challenges these specific rulings.

On the claim of intentional infliction of emotional distress, Ms. Childs argues that the trial court erred in summary judgment proceedings by holding that Ms. Childs' sole expert witness, a psychologist, not a medical doctor, was precluded from presenting medical testimony. Because Ms. Childs could not then prove a "medically diagnosable" and "medically significant" mental injury as required under the cause of action, summary judgment was granted in favor of defendant.

BACKGROUND

Katie Childs was hired in February of 1982 by Southwestern Bell Telephone Company (SWB) as a "programmer, entry level." For the next three years she enjoyed success in her employment, receiving annual promotions and pay raises. When conflicts arose between Ms. Childs and her immediate supervisor, LeAnn Crawford, Ms. Childs accused the supervisor of harassment. In January, 1985, due to the stress caused by the conflicts, Ms. Childs sought counseling through SWB's Employee Assistance Program (EAP). This program, staffed by in-house counselors, is designed to aid employees who suffer from any type of personal problems. After several counseling sessions during February and March, 1985, a decision was made to refer Ms. Childs to a private counselor, outside the EAP. Consequently, on April 6, 1985, she began treatment with defendant, Robert L. Williams, a Ph.D. psychologist.

At Ms. Childs' first appointment with Dr. Williams, he required her to complete a two-page form in which she provided personal data and medical information. At the bottom of the second page of the form, Ms. Childs signed and dated a provision that reads:

AUTHORIZATION TO RELEASE INFORMATION:

I hereby authorize Robert L. Williams to release any information acquired in the course of my examination or treatment.

Although the initial treatment sessions were helpful, by May of 1985, Ms. Childs' work situation was worsening. To alleviate the increased stress, Dr. Williams admitted her as an in-patient in the Stress Management Program which he operated through Lindell Hospital. After obtaining a short-term disability leave from SWB, she spent the next six weeks in the Program undergoing daily therapy sessions with Dr. Williams.

During the hospital stay, Ms. Childs and Dr. Williams discussed several ways to overcome her problems at the work place. When Ms. Childs learned that her EAP counselor at SWB was a friend of LeAnn Crawford, the supervisor with whom the stressful conflicts had occurred, Dr. Williams agreed to request a change of in-house counselors. To facilitate that request, Ms. Childs executed an "AUTHORIZATION FOR THE RELEASE OF INFORMATION" directed to "Dr. Robert Williams, Lindell Hospital, CTU" and stating:

I, the undersigned hereby permit the above physician, hospital, or clinic, to release any and all data contained in my medical records which may be identified by the facts below. Therefore, the above person is released from all legal liability that may arise from the disclosure of this information.

At the end of the passage, Ms. Childs wrote in longhand, "to request a change of EAP counselors for theraputic [sic] purposes."

Additionally, at Ms. Childs' behest, Dr. Williams agreed to write SWB to recommend a job transfer, either a lateral transfer within the St. Louis office or a placement with SWB's Dallas, Texas office. They were optimistic that her stress problems would resolve if she was no longer required to associate with her supervisor, LeAnn Crawford.

Ms. Childs was discharged from Lindell Hospital on June 28, 1985. After a one-week vacation, she returned to work on July 10, 1985. In the interim, her EAP counselor (the idea to request a new counselor was abandoned) solicited from Dr. Williams "a professional opinion regarding Ms. Childs' ability to successfully manage the emotional stress that is inherent in her job function." Meetings were held on July 10 with Ms. Childs, her EAP counselor, LeAnn Crawford, and other supervisors. Angry and depressed by negative comments about her job performance, Ms. Childs suffered a relapse. The next day, July 11, she readmitted herself to Lindell Hospital.

Also on July 11, having had no contact with Ms. Childs since June 28, and prior to being informed of her readmission, Dr. Williams wrote a letter to Dave Heberer, Ms. Childs' division supervisor at SWB. Outlined in the letter are Ms. Childs' diagnoses of "severe emotional disorders" and "paranoid personality; obsessive compulsive personality." Also included are details of her prognosis and her "psychological test profile." The letter also states, "I strongly advise, indeed, urge you to consider transferring Ms. Childs to a position less stressful." Ms. Childs denies giving permission to write such a letter. On receipt of the July 11 letter, Dave Heberer had it placed in Ms. Childs confidential personnel file. The letter was accessible only by SWB supervisors who were in a direct line of command above Ms. Childs' position; supervisors above Ms. Childs but lateral in the management hierarchy had no access. The letter was eventually reviewed by SWB's personnel manager, the EAP counselor, Heberer, LeAnn Crawford, and four others who at one time or another supervised Ms. Childs. Based in part on the information from Dr. Williams, Ms. Childs was demoted to a position she had held earlier at SWB. However, she was retained at the salary level she held before the demotion. Two years later, in 1987, she was terminated for reasons unrelated to this action.

It is Dr. Williams' letter of July 11, 1985, that provides the foundation for Ms. Childs' two causes of action.

PUBLICATION BY DEFENDANT

In Count I, Ms. Childs alleges that Dr. Williams' letter, composed and delivered without her consent, constitutes the tort of public disclosure of private facts. This category of torts is a subset of the group of torts for invasion of privacy. ¹ The four elements required for the cause of action are:

(1) publication or publicity,

(2) absent any waiver or privilege,

(3) of private matters in which the public has no legitimate concern,

(4) so as to bring shame or humiliation to a person of ordinary sensibilities.

Y.G. v. Jewish Hosp. of St. Louis, 795 S.W.2d 488, 498-99 (Mo.App.E.D.1990); Brown v. Mullarkey, 632 S.W.2d 507, 509 (Mo.App.E.D.1982). The latter two elements are not litigated in this appeal; we will assume they were established at trial.

Ms. Childs first argues that the trial court erred and abused its discretion in ruling as a matter of law that there was no publication by Dr. Williams. The term "publication" in the context of this cause of action means:

publicity "in the sense of communication to the public in general or to a large number of persons, as distinguished from one individual or a few."

Brown, 632 S.W.2d at 509 (quoting Biederman's of Springfield, Inc. v. Wright, 322 S.W.2d 892, 898 (Mo.Div. 2 1959)). The comment to Section 652D of the Restatement (Second) of Torts pertaining to public disclosure of private facts elaborates on the quality and degree of publicity required:

The form of invasion of the right of privacy covered in this Section depends upon publicity given to the private life of the individual. "Publicity," as it is used in this Section, differs from "publication" as that term is used in § 577 in connection with liability for defamation. "Publication," in that sense, is a word of art, which includes any communication by the defendant to a third person. "Publicity," on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public.

Restatement (Second) of Torts § 652D comment (1977) (emphasis added).

Biederman's, 322 S.W.2d at 899, a debt collection case, is one of few Missouri cases to address the issue of publication in an action for public disclosure of private facts. The debtor established by counterclaim that on three separate occasions an agent of creditor came to the restaurant where debtor worked. In a loud tone of voice, the agent demanded payment from him and harassed and threatened him. Id. at 893. The court ruled that "the oral publication over the three-day period in a public restaurant with numerous customers present satisfies any reasonable requirement as to publicity." Id. at 898.

In Brown, 632 S.W.2d 507, a representative of plaintiff's employer, under subpoena duces tecum, brought plaintiff's personnel file to a deposition. Id. at 508. Prior to the deposition (which was eventually aborted) the contents of the file, including some items not covered by the subpoena, were shown...