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Barber v. Camden Clark Memorial Hospital Corp.

Supreme Court of West Virginia

May 31, 2018

JILL C. BARBER, Plaintiff Below, Petitioner

          Submitted: May 15, 2018

          Appeal from the Circuit Court of Wood County Honorable Jason A. Wharton, Judge Civil Action No. 17-C-23

          James 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.

          Thomas 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 assignment.

          CHIEF JUSTICE WORKMAN dissents and reserve the right to file a dissenting opinion. JUDGE KAUFMAN concurs and reserves the right to file a concurring opinion.


         1. "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 516 (1995).

         2. "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 424 (1995).

         3. "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).

         4. "There is a private tort cause of action for a violation of W.Va. Code, 27-3-1 [1977]." Syl. Pt. 1, Allen v. Smith, 179 W.Va. 360, 368 S.E.2d 924 (1988).

         5. "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).

         6. "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).

         7. "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 (1959).

         8. "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).

         9. "[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).

         10. "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).

         11. "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) [1977]." Syl. Pt. 3, Allen v. Smith, 179 W.Va. 360, 368 S.E.2d 924 (1988).

         12. "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).

         13 "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).

         14. "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).

         15. "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).

         16. A 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).


          LOUGHRY, Justice.

         The 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.

         I. Factual and Procedural Background

         In 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. [1] 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 specified)[.]

         Ms. Barber received notice of the subpoena but did not file a motion to quash nor object in any way.

         On 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. [2] 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.

         On 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 ...

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