JILL C. BARBER, Plaintiff Below, Petitioner
CAMDEN CLARK MEMORIAL HOSPITAL CORP., Defendant Below, Respondent
Submitted: May 15, 2018
from the Circuit Court of Wood County Honorable Jason A.
Wharton, Judge Civil Action No. 17-C-23
D. McQueen, Jr., Esq. McQueen Davis, PLLC Huntington, West
Virginia and Christopher J. Heavens, Esq. Heavens Law Firm,
PLLC Charleston, West Virginia Attorneys for Petitioner.
J. Hurney, Jr., Esq. Laurie K. Miller, Esq. Jackson Kelly
PLLC Charleston, West Virginia Attorneys for Respondent.
JUSTICE WALKER, deeming herself disqualified, did not
participate in the case. JUDGE KAUFMAN, sitting by temporary
JUSTICE WORKMAN dissents and reserve the right to file a
dissenting opinion. JUDGE KAUFMAN concurs and reserves the
right to file a concurring opinion.
BY THE COURT
"Appellate review of a circuit court's order
granting a motion to dismiss a complaint is de
novo." Syl. Pt. 2, State ex rel McGraw v. Scott
Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d
"Interpreting a statute or an administrative rule or
regulation presents a purely legal question subject to de
novo review." Syl. Pt. 1, Appalachian Power Co.
v. State Tax Dep't. of WV, 195 W.Va. 573, 466 S.E.2d
"W.Va.Code, 27-3-1(a), provides for confidentiality of
communications and information obtained in the course of
treatment and evaluation of persons who may have mental or
emotional conditions or disorders, subject to the exceptions
set out in W.Va. Code, 27-3-1(b)." Syl. Pt. 1, State
v. Simmons, 172 W.Va. 590, 309 S.E.2d 89 (1983).
"There is a private tort cause of action for a violation
of W.Va. Code, 27-3-1 ." Syl. Pt. 1,
Allen v. Smith, 179 W.Va. 360, 368 S.E.2d 924
"Any time a subpoena duces tecum is issued to require
the production of hospital records as defined in W.Va. Code
§ 57-5-4a(a) (1981) (Repl.Vol.1997), whether such
records are sought in connection with a hearing, deposition,
trial or other proceeding, or are merely sought for
inspection and copying, the requirements of W.Va. Code
§§ 57-5-4a-4j apply and must be followed."
Syl. Pt. 3, Keplinger v. Virginia Elec. & Power
Co., 208 W.Va. 11, 537 S.E.2d 632 (2000).
"The primary rule of statutory construction is to
ascertain and give effect to the intention of the
Legislature." Syl. Pt. 8, Vest v. Cobb, 138
W.Va. 660, 76 S.E.2d 885 (1953).
"When a statute is clear and unambiguous and the
legislative intent is plain, the statute should not be
interpreted by the courts, and in such case it is the duty of
the courts not to construe but to apply the statute."
Syl. Pt. 5, State v. General Daniel Morgan Post No. 548,
Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353
"Statutes which relate to the same subject matter should
be read and applied together so that the Legislature's
intention can be gathered from the whole of the
enactments." Syl. Pt. 3, Smith v. State
Workmen's Comp. Comm'r, 159 W.Va. 108, 219
S.E.2d 361 (1975).
"[W]here two statutes are in apparent conflict, the
Court must, if reasonably possible, construe such statutes so
as to give effect to each." Syl. Pt. 4, in part,
State ex rel. Graney v. Sims, 144 W.Va. 72, 105
S.E.2d 886 (1958).
"The general rule of statutory construction requires
that a specific statute be given precedence over a general
statute relating to the same subject matter where the two
cannot be reconciled." Syl. Pt.1, UMWA by Trumka v.
Kingdon, 174 W.Va. 330, 325 S.E.2d 120 (1984).
"A subpoena is issued automatically by a clerk of court
upon the ex parte application of one party litigant,
and although a subpoena is enforceable through the
court's power of contempt until it has been quashed by
regular, in-court proceedings, a bare subpoena is not the
type of binding court order contemplated by W.Va.
Code, 27-3-1(b)(3) ." Syl. Pt. 3, Allen
v. Smith, 179 W.Va. 360, 368 S.E.2d 924 (1988).
"It is always presumed that the legislature will not
enact a meaningless or useless statute." Syl. Pt. 4,
State ex rel. Hardesty v. Aracoma, 147 W.Va. 645,
129 S.E.2d 921 (1963).
"A statute, or an administrative rule, may not, under
the guise of 'interpretation, ' be modified, revised,
amended or rewritten." Syl. Pt. 1, Consumer Advocate
Div. v. Public Serv. Comm'n, 182 W.Va. 152, 386
S.E.2d 650 (1989).
"Confidential information, " as defined by West
Virginia Code § 27-3-1(a) (2008), is not subject to
disclosure under the Medical Records Act, West Virginia Code
§§ 57-5-4a through -4j (1981), unless one of the
exceptions set forth in West Virginia Code § 27-3-1(b)
applies or the patient has authorized the disclosure as
provided in West Virginia Code § 27-3-2 (2007).
"Common-law tort claims based upon the wrongful
disclosure of medical or personal health information are not
preempted by the Health Insurance Portability and
Accountability Act of 1996." Syl. Pt. 3, R.K. v. St.
Mary's Med. Ctr., Inc., 229 W.Va. 712, 735
S.E.2d 715 (2012).
hospital's compliance with the Medical Records Act, West
Virginia Code §§ 57-5-4a through -4j (1981), and
the Health Insurance Portability and Accountability Act of
1996 when responding to a subpoena for a patient's
records does not preclude an action based on the wrongful
disclosure of confidential information in violation of West
Virginia Code § 27-3-1 (2008).
petitioner and plaintiff below, Jill C. Barber, appeals the
June 12, 2017, order of the Circuit Court of Wood County
dismissing the complaint she filed against the respondent and
defendant below, Camden Clark Memorial Hospital Corp.
("Camden Clark"), alleging that it wrongfully
disclosed her confidential mental health treatment records in
a federal court proceeding. Having considered the
parties' arguments, the submitted appendix record, and
pertinent authorities, we find the circuit court erred by
dismissing the complaint. Accordingly, we reverse the circuit
court's order and remand this case for further
proceedings consistent with this opinion.
Factual and Procedural Background
2014, Ms. Barber brought an action in the United States
District Court for the Southern District of West Virginia
against Sedwick Claims Management Services alleging fraud in
connection with the handling of a worker's compensation
claim.  In January 2016, during the federal
proceeding, Sedwick, through its counsel, Frith Anderson
& Peak, served a subpoena duces tecum on Camden Clark
requesting all of Ms. Barber's medical records.
Specifically, the subpoena sought production of:
All Medical Records of Jill C. Barber . . .
generated by any and all health care providers which are in
your possession; inclusive of correspondence, referrals,
hospital admission sheets, patient intake and information
sheets, progress notes, medical reports, discharge summaries,
E.R. records, medical test results and data, medical
opinions, physical therapy records, rehabilitation records,
lab tests, radiology and x-ray reports (and/or films if
Barber received notice of the subpoena but did not file a
motion to quash nor object in any way.
February 8, 2016, Camden Clark responded to the subpoena by
producing more than one thousand pages of documents including
hospital records reflecting that Ms. Barber had received
in-patient mental health treatment when she was a teenager.
Frith, Anderson & Peak provided copies of the medical
records produced by Camden Clark to Ms. Barber's counsel
on February 26, 2016. Ms. Barber's counsel did not review
the documents, and Ms. Barber never informed her counsel of
her mental health treatment as a teenager.
March 7, 2016, Ms. Barber was deposed in the federal court
case. During her deposition, Ms. Barber was asked whether she
had ever received any psychiatric or mental health treatment
in her lifetime. When she replied "no, " she was
confronted with her mental health records that had been
produced by Camden ...