Fairfax Hosp. By and Through INOVA Health System Hospitals, Inc. v. Curtis

• Citation: 254 Va. 437,492 S.E.2d 642
• Decision Date: 31 October 1997
• Docket Number: No. 962068,962068
• Parties: FAIRFAX HOSPITAL, by and through INOVA HEALTH SYSTEM HOSPITALS, INC. v. Patricia CURTIS.
• Court: Supreme Court of Virginia

Page 642

492 S.E.2d 642

254 Va. 437

FAIRFAX HOSPITAL, by and through INOVA HEALTH SYSTEM HOSPITALS, INC. v. Patricia CURTIS.

No. 962068.

Supreme Court of Virginia.

Oct. 31, 1997.

William L. Carey (Gary W. Brown; Adam W. Smith; McCandlish & Lillard, on briefs), Fairfax, for appellant.

David J. McClure (Philip J. Hirschkop; Hirschkop & Associates, on brief), Alexandria, for appellee.

Virginia Hospital and Health Care Association (Timothy M. Kaine; Rhonda M. Harmon; Mezzullo & McCandlish, on briefs), Richmond, in support of appellant, Amicus Curiae.

Present: CARRICO, C.J., and COMPTON, LACY, HASSELL, KEENAN and KINSER, JJ., and WHITING, Senior Justice.

HASSELL, Justice.

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 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, 291 Ala. 701, 287 So.2d 824, 830 (1973); Alberts v. Devine, 395 Mass. 59, 479 N.E.2d 113, 119, cert. denied, 474 U.S. 1013, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985); Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831, 832 (1920); MacDonald v. Clinger, 84 A.D.2d 482, 446 N.Y.S.2d 801, 804 (N.Y.App.Div.1982); Humphers v. First Interstate Bank, 298 Or. 706, 696 P.2d 527, 535 (1985); but see Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249, 252 (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...