Snavely v. Amisub of South Carolina, Inc.

• Decision Date: 12 June 2008
• Docket Number: No. 4413.,4413.
• Court: South Carolina Court of Appeals
• Parties: Lisa SNAVELY, Appellant, v. AMISUB OF SOUTH CAROLINA, INC., d/b/a Piedmont Medical Center, Tenet Healthcare Corporation, Tenet South Carolina, Inc., and Eric Eugene Zellner, M.D., Respondents.

665 S.E.2d 222

379 S.C. 386

Lisa SNAVELY, Appellant, v. AMISUB OF SOUTH CAROLINA, INC., d/b/a Piedmont Medical Center, Tenet Healthcare Corporation, Tenet South Carolina, Inc., and Eric Eugene Zellner, M.D., Respondents.

No. 4413.

Court of Appeals of South Carolina.

Submitted May 1, 2008.

Decided June 12, 2008.

Rehearing Denied August 25, 2008.

Nekki Shutt and Mary Dameron Milliken, both of Columbia, for Appellant.

William B. Darwin, of Spartanburg, H. Spencer King and Jason M. Imhoff, of Spartanburg, for Respondents.

THOMAS, J.

In this action for breach of patient-physician confidentiality, Lisa Snavely appeals the trial court's grant of Piedmont Medical Center's (Piedmont) motion for summary judgment. We affirm.¹

FACTS

On January 20, 2003, Carol Brooks, Snavely's sister-in-law, drove Snavely to the emergency room of Piedmont because Snavely was complaining of weakness, jaundice, and abdominal pain.² Per Snavely's request, Mrs. Brooks accompanied her to a private examination room. Dr. Zellner, an emergency room physician working at Piedmont, examined Snavely in Mrs. Brooks' presence and questioned Snavely regarding her symptoms. After completing the examination and reviewing Snavely's medical history, Dr. Zellner informed Snavely "she had likely contracted some form of hepatitis." To confirm his diagnosis, Dr. Zellner ordered Snavely undergo "blood work and an ultrasound." Shortly thereafter, Snavely's brother, James Brooks, arrived at Piedmont and joined Snavely in the examination room³ where Mrs. Brooks informed him of Dr. Zellner's preliminary diagnosis.

After obtaining the results of Snavely's blood tests, Dr. Zellner returned to the examination room and confirmed to Mr. and Mrs. Brooks the diagnosis of hepatitis. Dr. Zellner also indicated he would refer Snavely to a specialist to determine the type of hepatitis she had contracted. The next day, the Brookses accompanied Snavely to the office of Dr. Debra Gazzuolo. After completing a physical examination and reviewing Snavely's test results, Dr. Gazzuolo informed Snavely she contracted Hepatitis B. Dr. Gazzuolo provided Snavely information about Hepatitis B, including a pamphlet explaining the nature of the disease and methods to avoid transmitting it to others. Snavely then shared this diagnosis with the Brookses, and allowed them to review the information Dr. Gazzuolo provided. Subsequently, either Mr. or Mrs. Brooks disclosed Snavely's condition to her employer, a local restaurant, and she was fired.⁴

Following her termination, Snavely filed an action against Piedmont and Dr. Zellner for breach of patient-physician confidentiality. Specifically, Snavely alleged Dr. Zellner unlawfully disclosed her medical condition to the Brookses, and Piedmont was responsible for any unlawful act of Dr. Zellner. In response, Piedmont filed a motion for summary judgment asserting Snavely consented to the disclosure of her condition by allowing the Brookses to remain in the examination room at the time Dr. Zellner delivered his diagnosis. At the motion for summary judgment hearing, the trial court ruled in favor of Piedmont finding:

[Snavely] permitted Mrs. Brooks to remain in the examination room while Dr. Zellner performed his examination, and when he advised [Snavely] of his diagnosis. By allowing her sister-in-law to remain in the room throughout Dr. Zellner's examination, [Snavely] at least tacitly consented to disclosure of her medical conditions to her sister-in-law.

[Snavely] then allowed her brother and sister-in-law to accompany her to Dr. Gazzuolo's office the following day and after seeing the doctor, confirmed to the Brooks her specific diagnosis of Hepatitis B. [Snavely] also shared a pamphlet with her brother and sister-in-law that discussed the disease and ways to prevent spreading it. [Snavely] made no attempt to conceal her medical condition; rather, she involved her brother and sister-in-law at each stage. Thus, she cannot complain that any negligence, assuming there was any, of Dr. Zellner caused her injury.

Snavely's Rule 59(e), SCRCP, motion for reconsideration was denied. Shortly thereafter, Dr. Zellner filed a motion to dismiss based upon the trial court's grant of summary judgment in favor of Piedmont. The trial court granted Dr. Zellner's motion, concluding "the issue of negligence was held to be solely that of [Snavely] and no one else. Moreover, medical confidences were waived by consenting to the inclusion of family members in medical examination, diagnosis, and treatment." The trial court further found the collateral estoppel doctrine barred Snavely from litigating her claims against Dr. Zellner. In response to the trial court's order of dismissal, Snavely filed another Rule 59(e) motion, which was denied. This appeal followed.

STANDARD OF REVIEW

Summary judgment is proper where no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), SCRCP; Hurst v. East Coast Hockey League, Inc., 371 S.C. 33, 36, 637 S.E.2d 560, 561 (2006). On appeal from a grant of summary judgment, the appellate court applies the same standard governing the trial court. Id. The trial court should grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Russell v. Wachovia Bank, N.A., 353 S.C. 208, 217, 578 S.E.2d 329, 334 (2003) (quoting Rule 56(c), SCRCP). In determining whether any triable issues of fact exist, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the non-moving party. Law v. S.C. Department of Corrections, 368 S.C. 424, 434, 629 S.E.2d 642, 648 (2006). "A court considering summary judgment neither makes factual determinations nor considers the merits of competing testimony; however, summary judgment is completely appropriate when a properly supported motion sets forth facts that remain undisputed or are contested in a deficient manner." David v. McLeod Reg'l Med. Ctr., 367 S.C. 242, 250, 626 S.E.2d 1, 5 (2006).

LAW/ANALYSIS

I. Summary Judgment

Snavely contends the trial court erred in granting Piedmont's motion for summary judgment based upon: (1) Snavely's lack of consent to the disclosure of her medical condition; (2) Piedmont's contributory negligence; (3) the contradicted findings of fact relied upon by the trial court; (4) invasion of privacy; and (5) the doctrine of ostensible agency. We disagree.

A. Snavely's Consent to Disclosure

Snavely contends the trial court erred in granting Piedmont's motion for summary judgment because she did not consent to the disclosure of her medical condition. We disagree.

While South Carolina does not recognize physician-patient testimonial privilege,⁵ the law does recognize an action against a physician for the disclosure of confidential information, unless the disclosure is compelled by law or consented to by the patient. McCormick v. England, 328 S.C. 627, 635-40, 494 S.E.2d 431, 435-37 (Ct.App. 1997); see also Aakjer v. Spagnoli, 291 S.C. 165, 173, 352 S.E.2d 503, 508 (Ct.App.1987) ("There is no physician-patient privilege in South Carolina.").

In the present case, Snavely implicitly consented to the disclosure of her medical condition by involving the Brookses at every stage of her medical treatment. By her own admission, Snavely "chose to take [Mrs Brooks] back" to the examination room and did not ask her to leave during Dr. Zellner's examination. Specifically, Snavely testified as follows:

Q: Okay. And you chose to take [Mrs. Brooks] back with you?

A: Yes.

Q: Okay. That was your decision?

A: Yes.

Q: Okay. And you met Dr. Zellner in an examining room?

A: Yes.

Q: Okay. And what occurred in the examining room?

A: [Dr. Zellner] asked me what my symptoms were. I told him. He told me that he was guessing right now with hepatitis, but not sure which one and that he would send me for blood work and an ultrasound.

Subsequently, Snavely permitted the Brookses to accompany her to Dr. Gazzuolo's office where her diagnosis of Hepatitis B was confirmed. Additionally, Snavely shared a pamphlet with the Brookses discussing the disease and preventive treatments. Accordingly, the trial court did not err in granting summary based upon the finding Snavely "at least tacitly consented" to the disclosure of her medical condition.

B. Contributory Negligence

Snavely contends the trial court erred in granting Piedmont's motion for summary judgment by failing to find Piedmont contributorily negligent. We disagree.

In order to establish a cause of action in negligence, a plaintiff must prove the following three elements: (1) a duty of care owed by defendant to plaintiff; (2) breach of that duty by a negligent act or omission; and (3) damage proximately resulting from the breach of duty. Bloom v. Ravoira, 339 S.C. 417, 422, 529 S.E.2d 710, 712 (2000). "However, under South Carolina's comparative negligence doctrine, a plaintiff may only recover damages if his own negligence is not greater than that of the defendant." Id. at 422, 529 S.E.2d at 712-13. Generally, a "comparison of the plaintiff's negligence with that of the defendant is a question of fact for the jury to decide." Id. at 422, 529 S.E.2d at 713. In a comparative negligence case, the trial court should only determine judgment as a matter of law if the sole reasonable inference which may be drawn from the evidence is the plaintiff's negligence exceeded fifty percent. See Hopson v. Clary, 321 S.C. 312, 314, 468 S.E.2d 305, 307 (Ct.App.1996) ("If the evidence as a whole is susceptible to only one reasonable inference, no jury issue is created.").

Here, Snavely fails to prove any negligent act attributable to Dr. Zellner was the proximate cause of the disclosure of her medical condition. Indeed, the record contains no...