Lombardo, Paul A.

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Virginia Supreme Court Endorses Medical Confidentiality Claim

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Georgia State University College of LawReading RoomFaculty Publications By Year Faculty PublicationsSpring 3-1-1998Virginia Supreme Court Endorses MedicalConfidentiality ClaimPaul A. LombardoGeorgia State University College of Law, plombardo@gsu.eduFollow this and additional works at: https://readingroom.law.gsu.edu/faculty_pubPart of the Health Law and Policy Commons, and the State and Local Government LawCommonsThis Article is brought to you for free and open access by the Faculty Publications at Reading Room. It has been accepted for inclusion in FacultyPublications By Year by an authorized administrator of Reading Room. For more information, please contact mbutler@gsu.edu.Recommended CitationPaul A. Lombardo, Virginia Supreme Court Endorses Medical Confidentiality Claim, Dev. Mental Health L., Spring 1998, at 21.Volume 18, Numbers 1 & 2 Developments in Mental Health Law January - December 1998proceedings and the availability ofshort-term sanctions justify a lowerlevel of competence. However, thecourt disagreed, holding thatfundamental fairness required thesame protection offered to adults.However, the court did notreverse the finding. The court heldthat a review of the record indicatedthat the trial court properly inferredthe juvenile was competent, despitenarrow areas of difficulty,principally communication. In theirdecision, the court discussed thetestimony of two clinicalpsychologists, one of whom testifiedthat D.D.N. could participate in hisdefense, while the other expressedsome doubts, but acknowledged thatD.D.N. had the cognitive capabilityto participate.Virginia Supreme Court Endorses MedicalConfidentiality ClaimBy Paul A. Lombardo, PhD, JDVirginia's law of medical confidentiality has seen major changes in the pasttwo years. In 1997, a new statute declaring a right to privacy in medicalinformation went into effect. The Patient Records Privacy Act provided longoverdue clarification concerning the boundaries around confidentialcommunications that take place in the clinical context. Less than a full year afterthe Privacy Act was adopted by the General Assembly, the legal significance ofmedical confidentiality was again highlighted. In the case of Curtis v. FairfaxHospital, the Virginia Supreme Court for the first time recognized the right of apatient to sue when medical records were wrongfully disclosedThe Malpractice CaseThe Curtis case was triggered by the tragic death of Jessica Curtis. Jessicawas born in 1989; her mother suffered from diabetes. Though the birth was"uneventful," concerns about the potential for hypoglycemia related to maternaldiabetes led doctors to place Jessica in a neonatal intensive care unit to monitorher progress. On the day she was scheduled for discharge, Jessica was foundlying face down in full cardiopulmonary arrest. She was found "with her noseflattened, her face pushed in, and blue in color."Paul Lombardo, Ph.D., J.D. is Associate Professor and Director of the Center forMental Health Law.Page 21Volume 18, Numbers 1 & 2 Developments in Mental Health Law January - December 1998A neonatologist who treated Jessica said she was in cardiopulmonary arrestfor at least ten and perhaps as many as forty minutes before she was found; asecond doctor said she had suffocated in her blanket. Though she wasresuscitated, Jessica suffered extensive brain damage, dying four months later.Patricia Curtis, Jessica's mother, eventually filed a malpractice claim,charging that Jessica's death was the result of medical negligence. The hospitalresponded that Jessica's death resulted from a near Sudden Infant DeathSyndrome event related to maternal risk factors. Jessica's mother sufferedseizures, had difficulty controlling her diabetes and smoked during pregnancy.This strategy did not convince the trial jury, which eventually awarded Ms.Curtis $500,000 for the wrongful death of her daughter Jessica.The Wrongful Disclosure LawsuitIn the midst of the malpractice case, Ms. Curtis' medical records describingtreatment just prior to Jessica's birth and years earlier were retrieved fromFairfax and other hospitals. According to her lawyer, when Ms. Curtis'deposition was taken "very abusive questions" about "highly personal matters"were asked and it was apparent that lawyers for the hospital and otherdefendants had been privy to those records.The events surrounding the Curtis deposition led to a second lawsuit, filedeven as the first was awaiting trial. In that case, Ms. Curtis claimed that thehospital had conspired to commit medical malpractice by wrongfully disclosingher confidential medical records to the director of legal affairs for the hospital'sparent corporation and to a nurse who was also a defendant in the firstmalpractice suit. The allegations made by Curtis included the charge that thehospital had intended to use confidential information "to gain an advantage inthe underlying malpractice action, [concerning the death of Jessica Curtis] and tootherwise harass and disturb Curtis."The hospital responded, arguing that a legal claim against a health careprovider for unauthorized disclosure of confidential medical information hasnever been recognized in Virginia. Additionally, the hospital claimed that asowner of the records it could not be guilty of wrongfully mishandling its ownproperty. A trial court judge turned those assertions aside, noting that thehospital was "merely a repository" for patient records, and that a legal claim forwrongful disclosure was valid.Attorneys for Ms. Curtis and Fairfax Hospital disagreed over whether a suitcould be properly sustained in Virginia for breach of medical confidentiality, butthere was no dispute over how Ms. Curtis's records had been disclosed. The casewas eventually submitted to a judge for resolution of the legal question alone.Did Virginia's privilege law (Virginia Code section 8.01-399) allow a health carePage 22Volume 18, Numbers 1 & 2 Developments in Mental Health Law January - December 1998provider to unilaterally disclose medical records to people other than thepatients to whom the records pertain?The privilege statute protectsphysician-patient communications The privilege statute protectsfrom compelled disclosure in a physician-patient communicationscivil case. However, patients who from compelled disclosure in a civilput their physical or mental case. However, patients who put theircondition "at issue" by filing a physical or mental condition "at issue"malpractice suit are considered to by filing a malpractice suit arehave waived the privilege, and considered to have waived thetheir records may be subject to privilege, and their records may becourt ordered disclosure. The trial subject to court ordered disclosure.court judge concluded that theCurtis malpractice lawsuit wasbrought on behalf of Jessica Curtis, and the circumstances surrounding her deathwere at issue. In contrast, the condition of Patricia Curtis was "not inherently atissue" and thus there was no justification to release records "simply to hunt for agrounds of defense." Finding that there is a "potential for abuse" when courtoversight of record disclosure is absent, the judge concluded that FairfaxHospital was liable for damages of $100,000.Curtis in the Virginia Supreme CourtFairfax Hospital appealed the decision to the Virginia Supreme Court. In itsopinion, that Court noted the hospital's concession that it "unilaterallydisseminated the plaintiffs medical records to an attorney and a nurse" withoutpermission from the patient or a judge's order. The Court analyzed that eventwithin the context of traditional state law on the duties of doctors to patients.In our jurisprudence, a health care provider owes a duty ofreasonable care to the patient. Included within that duty isthe health care provider's obligation to preserve theconfidentiality of information about the patient.... Indeed,confidentiality is an integral aspect of the relationshipbetween a health care provider and a patient and, often, togive the health care provider the necessary information toprovide proper treatment, the patient must reveal the mostintimate aspects of his or her life to the health care providerduring the course of treatment.The Court concluded that the duty of maintaining patient confidences hadbeen breached and announced a clear rule of liability for the hospital and otherswho fail to protect patient records:Page 23Volume 18, Numbers 1 & 2 Developments in Mental Health Law January - December 1998[A] health care provider owes a duty to the patient not todisclose information gained from the patient during the courseof treatment without the patient's authorization,., violation ofthis duty gives rise to an action in tort.Emphasizing that this decision is consistent with decisions of most otherstates that have faced the question, the Court underlined the need for judicialapproval for such disclosures. The hospital's defense had included the assertionthat this disclosure was made within the judicial context, that is, as part of alawsuit. But the Court nevertheless found the fault in this case to be that "anindependent judicial officer, not the Hospital or the director of legal affairs forthe Hospital's parent company" should have reviewed the relevance of patientrecords to the lawsuit before any such records were released. The Court repeatedits finding that "if the patient did not manifestly place his or her medicalcondition at issue, ... then the statute required a determination by a judicialofficer" to make that determination.ConclusionThe version of the privilege statute applied to the facts in Curtis has beenamended several times in the intervening years since the events leading to thatlawsuit. The statute now specifically allows for disclosure of records whennecessary to the protection of the physician's legal rights, for example, inpreparation for malpractice lawsuits. But the language of the privilege statuteand its relation to other parts of the law is far from clear; many questionssurrounding the proper handling of medical records remain.Nevertheless, several issues are clarified by the Curtis decision. The ideathat medical records exist as the property of health care providers to be releasedat their convenience has been explicitly rejected by Virginia's highest court.Providers have no absolute right to patient information; they hold medicalsecrets as trustees or fiduciaries. Providers also face significant liability when abreach of confidentiality occurs. Successful lawsuits can and will be brought inthe future when inappropriate disclosures of medical information occur. Recordsof mental health treatment are considered a part of the medical record.The Curtis case makes it all the more important to understand andobserve boundaries of patient confidentiality as well as the range of disclosurespermitted by law during litigation and at other times. It also finally clarifies theimportance of medical confidentiality in Virginia, not merely as a rhetoricalaspiration, but as both an ethical imperative and a legal mandate.Page 24

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Virginia Supreme Court Endorses Medical Confidentiality Claim

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