Sletto v. Hospital Authority, A99A0656.

• Decision Date: 16 July 1999
• Docket Number: No. A99A0656.,A99A0656.
• Citation: 521 S.E.2d 199,239 Ga. App. 203
• Parties: SLETTO et al. v. HOSPITAL AUTHORITY OF HOUSTON COUNTY et al.
• Court: Georgia Court of Appeals

521 S.E.2d 199
239 Ga. App. 203

SLETTO et al.
v.
HOSPITAL AUTHORITY OF HOUSTON COUNTY et al

No. A99A0656.

Court of Appeals of Georgia.

July 16, 1999.

Certiorari Denied October 29, 1999.

521 S.E.2d 200

Dozier, Lee, Graham & Sikes, Joel M. Grist, Jr., Macon, for appellants

Jones, Cork & Miller, Wendell K. Howell, C. Ashley Royal, Macon, for appellees.

SMITH, Judge.

Leonard and Stellie Sletto filed this action against the Hospital Authority of Houston County d/b/a Houston Medical Center (HMC), Marlyn Jackson, and Smart Corporation as a result of the unauthorized release of Leonard Sletto's psychiatric records. The trial court granted summary judgment to all defendants, and the Slettos appeal. For the reasons that follow, we affirm in part and reverse in part.

The essential facts are not disputed. Leonard Sletto filed an action in August 1992 against an individual for personal injuries he allegedly received as a result of an automobile accident. During the course of discovery, the defendant's attorney, James Towson, sent a request for production of documents to non-party HMC requesting all of Sletto's records. In response, HMC released to Towson copies of Sletto's medical records, including certain mental health records, without obtaining authorization from Sletto to release the mental [239 Ga. App. 204] health records. Appellee Smart Corporation was contracted by HMC to provide photocopying and distributing services of medical records and apparently copied Leonard Sletto's records on HMC's behalf. The custodian of medical records for HMC, Marlyn Jackson, testified on her deposition that the release was "an error" or "oversight" made by her.

After HMC sent the records to Towson, HMC's attorney asked Towson that the records be returned, and after having his paralegal review the records, Towson did so. The Slettos filed this action, alleging that Leonard Sletto had "suffered pecuniary loss and injury to his peace, happiness, feelings, and has suffered an invasion of his legal right of privacy as a result of" HMC's unauthorized disclosure of his psychological records. The complaint also alleged that Stellie Sletto had suffered a loss of consortium. All defendants moved for summary judgment on several grounds. They contended, among other things, that they were entitled to summary judgment on any invasion of privacy claim. HMC and Jackson also argued that summary judgment was warranted because the Slettos could not prevail on their action alleging purely emotional harm. Further, Smart Corporation argued that it was entitled to summary judgment based on the running of the applicable statute of limitation. The trial court granted summary judgment to the defendants, finding that defendants did not intentionally release Leonard Sletto's psychiatric records. The trial court further found that Leonard Sletto was not entitled to recover for a claim of negligent infliction of emotional distress, because that required "some physical impact arising directly from the release of the mental health records." The trial court also concluded that the Slettos were not entitled to recover on their an invasion of privacy claim.

On appeal, the Slettos raise no contention with respect to the trial court's finding concerning the invasion of privacy claim but instead argue that the "impact rule" does not bar recovery in this case. We conclude that Smart Corporation was entitled to summary judgment with respect to Leonard Sletto's claim, based on the expiration of the statute of limitation. We also agree with the Slettos, however, that summary judgment was incorrectly granted to HMC and Jackson, but for different reasons.

1. The threshold issue in this case is whether the unauthorized release of Leonard Sletto's psychiatric records affords them a cause of action under our law. The Slettos acknowledge on appeal that they seek damages under OCGA § 51-12-6. If damages for mental pain and suffering sought under this section "are not accompanied by physical or pecuniary loss, recovery is allowed only if

521 S.E.2d 201

the conduct complained of was malicious, wilful or wanton." (Punctuation omitted.) Carroll v. Rock, 220 Ga.App. 260, 261, 469 S.E.2d 391 (1996). [239 Ga. App. 205] See also Ryckeley v. Callaway, 261 Ga. 828, 412 S.E.2d 826 (1992); OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 665-666(2), 386 S.E.2d 146 (1989); Ford v. Whipple, 225 Ga.App. 276, 277-278, 483 S.E.2d 591 (1997). Furthermore, even if the conduct was malicious, wilful, and wanton, it must have been directed toward the plaintiff to warrant recovery. Ryckeley, supra at 829, 412 S.E.2d 826. And it is true, as argued by appellees, that the record is devoid of evidence that Leonard Sletto suffered a physical impact. The Slettos concede as much in their appellate brief. We must also agree with appellees that the record does not show that appellees' actions were "malicious, wilful, or wanton" or that any act or omission was directed toward the Slettos. Jackson testified unequivocally that HMC inadvertently released the records and that she did not harbor any malice toward Leonard Sletto, nor did...