St. Anthony's Medical Center v. H.S.H.

• Decision Date: 30 June 1998
• Docket Number: No. 73399,73399
• Citation: St. Anthony's Medical Center v. H.S.H., 974 S.W.2d 606 (Mo. App. 1998)
• Parties: ST. ANTHONY'S MEDICAL CENTER, Respondent, v. H.S.H., Appellant.
• Court: Missouri Court of Appeals

Page 606

974 S.W.2d 606

ST. ANTHONY'S MEDICAL CENTER, Respondent, v. H.S.H., Appellant.

No. 73399.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 30, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 26, 1998.

David L. Campbell, J. Russell Carnahan, St. Louis, for appellant.

Allen D. Allred, V. Scott Williams, St. Louis, for respondent.

AHRENS, Presiding Judge.

H.S.H., defendant, appeals from the trial court's judgment granting plaintiff St. Anthony's Medical Center's motion for summary judgment on defendant's counterclaims for invasion of privacy and intentional infliction of emotional distress. Defendant also appeals from the dismissal, with prejudice, of his counterclaim for negligent infliction of emotional distress. We affirm.

Defendant was hospitalized at St. Anthony's Medical Center from February 2, 1991 to March 1, 1991 and from April 23, 1991 to May 14, 1991 for psychiatric and psychological care. Defendant did not receive treatment for alcohol or drug abuse at St. Anthony's. In March 1991, defendant was the respondent in a dissolution of marriage proceeding in the Circuit Court of Franklin County, Missouri. As part of that proceeding, the court ordered defendant, over his objection, to execute the following authorization releasing medical records to his then wife's attorney, Joseph Aubuchon:

You are hereby authorized to release to Mr. Joseph R. Aubuchonall medical records pertaining to [H.S.H.]'s treatment of chemical dependency or alcohol abuse, or both rendered by you.

Mr. Aubuchon sent this release, along with a cover letter requesting "copies of the medical records concerning [H.S.H.]" to St. Anthony's on April 4, 1992. St. Anthony's medical records department forwarded copies of all medical records relating to both of defendant's 1991 hospitalizations to Mr. Aubuchon accompanied by a memorandum stating that the confidentiality of the disclosed information was protected by federal law (42 C.F.R. Section 2). On August 3, 1992, St. Anthony's informed Mr. Aubuchon by letter that certain medical records relating to defendant, released to Mr. Aubuchon under defendant's authorization, did not relate to chemical dependence or alcohol abuse treatment. ¹ St. Anthony's refunded photocopying charges paid by Mr. Aubuchon and requested immediate return of defendant's records. The records were not returned. The Franklin County Circuit Court granted defendant's motion to suppress his St. Anthony's medical records in the dissolution proceeding.

On October 5, 1992, St. Anthony's brought suit against defendant for unpaid charges incurred during his 1991 hospitalizations. ² Defendant filed a counterclaim that included three counts: invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress. Defendant amended his counterclaim twice; the second amendment added a claim for violation of his civil rights under 42 U.S.C. Section 1983, a claim defendant subsequently voluntarily dismissed.

Both St. Anthony's and defendant moved for summary judgment. In separate proceedings, the trial court granted St. Anthony's motion for summary judgment on defendant's counterclaims for invasion of privacy and intentional infliction of emotional distress and St. Anthony's motion to dismiss, with prejudice and without leave to amend, defendant's counterclaim for negligent infliction of emotional distress. On September 8, 1997, the trial court denied defendant's motion to reconsider and for leave to file a third amended counterclaim. Defendant timely filed this appeal.

I. Invasion of Privacy

Summary judgment shall be entered where the moving party has demonstrated, through the pleadings, depositions, answer to interrogatories, and admissions on file, together with any affidavits, that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as matter of law. Rule 74.04(c). When considering an appeal from a summary judgment, this court reviews the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). "The judgment should be affirmed regardless of the theory upon which it is based insofar as upon the law and evidence, such judgment could have been properly reached on any reasonable theory." Air Cooling & Energy v. Midwestern Const., 602 S.W.2d 926, 927 (Mo.App.1980).

Defendant argues on appeal that the trial court erred in granting summary judgment on his counterclaim for invasion of privacy because the court applied the wrong invasion of privacy tort to the facts alleged in his pleadings. The Missouri Supreme Court recognized the right to privacy as a general tort doctrine in Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291, 295 (Mo.1942). This general right to privacy includes four separate privacy interests. Hester v. Barnett, 723 S.W.2d 544, 562 (Mo.App.1987). Invasion of these interests may result in four separate torts, each with its own distinct set of elements. Id. The right to privacy is invaded when there is: (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of another's name or likeness; (3) unreasonable publicity given to another's private life; or (4) publicity that unreasonably places another in a false light before the public. Id.

Defendant's pleadings, from his initial answer and original counterclaim through his seconded amended answer and his counter-motion for partial summary judgment, failed to specify upon which of the four invasion of privacy interests his counterclaim rested. Defendant argues on appeal that he stated a cause of action for the invasion of the privacy tort of "unreasonable intrusion upon the seclusion of another" not "unreasonable publicity given to another's private life," the tort analyzed by the trial court.

"A petition must be read from its four corners and a court must give to the language its plain and ordinary meaning and such interpretation as fairly appears to have been intended by the pleader." Gover v. Cleveland, 299 S.W.2d 239, 242 (Mo.App.1957). Defendant's second amended answer and counterclaim for invasion of privacy alleged that St. Anthony's disclosed defendant's confidential records contrary to its own policy and to federal law without defendant's knowledge, waiver, or valid consent. On these allegations, the trial court reasonably concluded that defendant's counterclaim was for the unreasonable publicity given to another's private life. However, under either this tort or the tort of intrusion upon the seclusion of another, defendant's counterclaim for invasion of privacy fails.

Three elements encompass the claim for unreasonable intrusion upon the seclusion of another: (1) the existence of a secret and private subject matter; (2) a right in the plaintiff to keep that subject matter private; and (3) the obtaining by the defendant of information about that subject matter through unreasonable means. Corcoran v. Southwestern Bell Telephone Co., 572 S.W.2d 212, 215 (Mo.App.1978). The elements of the tort of unreasonable publicity given to another's private life, the tort applied by the trial court, 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.1990).

Assuming, without deciding, that defendant's counterclaim sufficiently pleads the first two elements of a claim of intrusion upon seclusion, nevertheless, the petition fails as to the third element. To meet the third element, the claimant must show that the other party unreasonably obtained information about the claimant's private subject matter. In his argument on appeal, defendant confuses 'publishing' with 'obtaining.' In Corcoran, the defendant obtained her former in-laws' telephone bill by deception, opened the sealed, first-class mail addressed to plaintiffs, and read the contents of the mail without authorization to learn the whereabouts of her former husband. The court concluded that the evidence was sufficient to establish that plaintiffs had made a submissible case for intrusion upon seclusion because defendant obtained private information through "methods objectionable to the reasonable man." Id. at 215. St. Anthony's did not unreasonably obtain defendant's medical records through deception, illegal activity, or other unreasonable methods. In the ordinary course of its business, St. Anthony's obtained defendant's medical records as documentation of medical services rendered by the hospital to defendant.

On appeal, defendant argued that the hospital published his medical records by unreasonable means because 42 C.F.R. Section 2.20, cited in St. Anthony's transmission of defendant's medical records to Mr. Aubuchon, rendered his limited authorization invalid. This federal regulation applies to disclosure of alcohol and drug abuse records of patients who have applied for or undergone diagnosis or treatment for alcohol or drug abuse at a federally assisted program. 42 C.F.R. Section 2.1, 2.2, 2.11. Defendant did not plead that he had applied for treatment for alcohol or drug abuse at St. Anthony's, that he was diagnosed or treated for alcohol or drug abuse, or that the released records pertained to alcohol or drug abuse treatment. Publishing private information is not an element of unreasonable intrusion upon seclusion. Even if defendant had not confused 'publishing' with 'obtaining' as the conduct proscribed in the third element of unreasonable intrusion upon seclusion, the federal regulations cited by defendant do not apply to St. Anthony's disclosure of his psychiatric or psychological records.

Even if defendant's invasion of privacy counterclaim was for the public disclosure of...