Keplinger v. Virginia Elec. and Power Co.

Decision Date14 July 2000
Docket NumberNo. 27381.,27381.
Citation537 S.E.2d 632,208 W.Va. 11
CourtWest Virginia Supreme Court
PartiesBonnie L. KEPLINGER, Plaintiff, v. VIRGINIA ELECTRIC AND POWER COMPANY and Judith A. Parsons, Defendants.

David M. Hammer, Robert J. Schiavoni, Hammer, Ferretti & Schiavoni, Martinsburg, West Virginia, Attorneys for the Plaintiff.

Stephen M. LaCagnin, Alvin L. Emch, Julia M. Chico, Jackson & Kelly PLLC, Morgantown, West Virginia, Attorneys for the Defendants.

Harry G. Shaffer, III, Charleston, West Virginia, Attorney for Amicus Curiae, Defense Trial Counsel of West Virginia.

Jane E. Peak, Morgantown, West Virginia, Attorney for Amicus Curiae, West Virginia Employment Lawyers Association.

DAVIS, Justice:

The Circuit Court of Grant County presents this Court with a certified question involving various issues related to the discovery of the medical records of a party to a law suit from a nonparty source. We reformulate the question to enable us to address the numerous issues raised, and we conclude: (1) the provisions of W. Va.Code §§ 57-5-4a—4j must be followed any time a subpoena duces tecum is issued to require production of hospital records; (2) when Rule 45 of the West Virginia Rules of Civil Procedure is used as a discovery device, it is subject to all the provisions of the discovery rules; (3) when a party seeks to use Rule 45 to subpoena an opposing party's medical records from a nonparty, notice to the party/patient must occur sufficiently in advance of service of the subpoena to provide a reasonable opportunity for the patient/party to object; and (4) a party may not use Rule 45, or any other discovery device, to pursue discovery of items that are the subject of an ongoing discovery dispute.


On June 4, 1999, Plaintiff Bonnie L. Keplinger (hereinafter "Ms. Keplinger"), filed a civil action against Defendants Virginia Electric and Power Company and Judith A. Parsons (hereinafter collectively referred to as "VEP"). In her law suit, Ms. Keplinger claimed that she had been subjected to employment discrimination when her employment was terminated without affording her reasonable accommodation for her handicap, which handicap, according to Ms. Keplinger, had resulted from a work related ankle injury. She further claimed that her privacy had been invaded by a statement in a company newsletter reporting that she had been removed from the payroll due to her "medical disqualification."1

During the discovery process in this case, VEP sought full discovery of Ms. Keplinger's entire medical and mental health history.2 VEP's initial discovery request was served on Ms. Keplinger on August 7, 1998. Ms. Keplinger responded by objecting that VEP's requests were overly broad and not reasonably calculated to lead to the discovery of admissible evidence. Instead, Ms. Keplinger offered to provide information and medical records relating solely to her workplace ankle injury, or, in the alternative, she proposed that she obtain her medical records, screen them, produce only those portions she deemed relevant, and submit a privilege log for those records not produced. Finally, as a third option, Ms. Keplinger offered to discuss the production of all medical records that were generated during a reasonable time frame to be mutually established by the parties. Notwithstanding these suggested resolutions, the parties were unable to settle this discovery dispute between themselves. Consequently, VEP filed a motion to compel in November, 1998. A hearing on the motion was initially scheduled for November 16, but was ultimately continued to a later date.3

According to Ms. Keplinger, a subsequent hearing on this matter was ultimately scheduled for February 19, 1999. In mid-January, 1999, however, VEP served subpoenas duces tecum, in accordance with Rules 34 and 45 of the West Virginia Rules of Civil Procedure, on twelve of Ms. Keplinger's health care providers who had been identified from her workers' compensation and employment records. The subpoenas were issued and copies were served upon Ms. Keplinger on January 15, 1999. The subpoenas were served on the various health care providers on several dates between January 15, 1999, and February 5, 1999. The subpoenas did not require the health care providers' physical attendance, rather they commanded only that responsive documents be produced for inspection and copying by VEP. Thereafter, VEP received medical documents from eight of the health care providers subpoenaed. The records were received between January 19, 1999 and February 8, 1999.4

On January 27, 1999, Ms. Keplinger served motions to quash eleven of the subpoenas. However, she failed to notice a hearing on those motions. VEP then served its response to the motion to quash on February 16, 1999, and also served a notice setting the matter for hearing on February 19, 1999, during a previously scheduled status conference. Also on February 16, VEP filed in an open court file, all of Ms. Keplinger's medical records that it had obtained by subpoena, including her mental health records.5 During the February 19 hearing, the circuit court heard the parties' arguments on Ms. Keplinger's motion to quash the subpoenas, on the defendant's earlier motion to compel, and on cross motions for protective orders. The circuit court then ruled that Ms. Keplinger was to respond to outstanding discovery requests regarding her medical history only for the time period of April 9, 1991, to the present with a continuing obligation to supplement, that VEP was entitled to obtain medical records directly from Ms. Keplinger's health care providers without prior screening by Ms. Keplinger's counsel, and that Ms. Keplinger was to execute and provide VEP with a release authorizing the procurement of all medical records for the defined period.6 The circuit court further ordered that copies of all medical records obtained by VEP be provided to Ms. Keplinger pursuant to a protective order. In addition, the court granted Ms. Keplinger's motion to quash the subpoenas, but stated that its order directing her to execute releases of her medical records resolved the issues that had been raised in her motion. Finally, the circuit court ordered that VEP obtain all future records via the releases and not via subpoenas.

VEP contends that it only received ten pages of medical records that were outside the time frame established by the circuit court. Furthermore, VEP asserts that these records were received on or about January 19, 1999, which date preceded service of Ms. Keplinger's motion to quash.7

Subsequently, in April 1999, Ms. Keplinger filed a motion for leave to file an amended complaint. The amended complaint added a cause of action for tortious interference with a fiduciary relationship. The new cause of action was based upon W. Va.Code §§ 57-5-4a—4j. VEP opposed the motion. Following a hearing, the circuit court granted Ms. Keplinger's motion and concluded:

a. The Medical Records Act, West Virginia Code § 57-5-4a, et seq., provides the exclusive procedures that must be followed in all instances to obtain the release of medical records;

b. The Medical Records Act, West Virginia Code § 57-5-4a, et seq., does not deal primarily with the admissibility of medical records as Defendants contended because said statute sets forth specific procedures for the release of medical records;

c Morris v. Consolidation Coal, 446 S.E.2d 648 (W.Va.1994), Kitzmiller v. Henning, 437 S.E.2d 452 (W.Va.1993) and West Virginia Code § 57-5-4a et seq., protect the privacy of medical records such as those obtained by Defendant Virginia Electric and Power Co., pursuant to subpoena;
d. The Medical Records Act was violated when Defendants' counsel received medical records subpoenaed pursuant to Rule 45 of the West Virginia Rules of Civil Procedure; and
e. Thereafter, by Order entered on April 1[6], 1999, the Court ordered that all outstanding subpoenas issued by Defendants' counsel pursuant to Rule 45 be quashed and directed that Plaintiff execute a release of medical records for use by Defendants in obtaining the records from Plaintiff's health care providers not obtained via subpoena.
The Court hereby CONCLUDES that Plaintiff has raised separate causes of action for invasion of privacy and for tortious interference with a fiduciary relationship and the granting of the motion to amend the complaint will cause no prejudice to Defendants for trial purposes.

As a result of these rulings, VEP filed a motion to certify questions to this Court. Consequently, the circuit court certified the following question:

In any suit alleging wrongful termination because of physical disability, does the Defendants' attorney create an additional cause of action for tortious interference with Plaintiff's physician-patient relationship by serving a subpoena duces tecum on Plaintiff's health care providers demanding that they provide copies of all of Plaintiff's medical records directly to Defendants' attorney; rather than delivering the records to the Clerk of the Circuit Court in a sealed envelope to await a judicial determination as specified in the Medical Records Act, W. Va.Code 57-5-4a, et seq.?
The circuit court answered "Yes" to this question.

Before addressing the issues raised in the instant proceeding, we first reformulate the question certified to us by the circuit court. In this regard, we have previously explained that:

When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under both the Uniform Certification of Questions of Law Act found in W. Va.Code, 51-1A-1, et seq. and W. Va.Code, 58-5-2 [1967], the statute relating to certified questions from a circuit court of this State to this Court.

Syl. pt. 3, Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d...

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