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By Melisa G. Michelsen

The Supreme Court of Virginia has explicitly held that the duty of a health care provider to preserve the confidentiality of information about the patient which was communicated to the health care provider or discovered by the health care provider during the course of treatment is encompassed in the duty of reasonable care. Fairfax Hospital v. Patricia Curtis, 254 Va. 437, 442 (1997). In previous decisions, the Virginia Supreme Court declined to decide whether Virginia recognized a cause of action against a health care provider for the wrongful disclosure of a patient's medical records and information. See Pierce v. Caday, 244 Va. 285 (1992) (recognizing causes of action for intentional and negligent infliction of emotional distress). However, in Curtis, the Court stressed that confidentiality is an integral part of the health care provider/patient relationship. Confidentiality is necessary in order for the health care provider to obtain the requisite information to provide proper treatment. Curtis, 254 Va. at 442. Otherwise, a patient may not be as forthright in providing a complete and accurate medical history. The Court held that absent a statutory command to the contrary or serious danger to the patient or others, a health care provider owes a duty to the patient not to disclose information gained from the patient during the course of treatment without the patient's express authorization. Id. Thus, violation of this duty gives rise to an action in tort. Id. The majority of other jurisdictions have similar rulings. Furthermore, the unauthorized disclosure of a patient's records may also serve as a basis for disciplinary action from the Board of Medicine. See, e.g., South Carolina State Board of Medical Examiners v. Hedgepath, 480 S.E.2d 724 (S.C. 1997) (Supreme Court of South Carolina upheld Board of Medicine's public reprimand of physician for misconduct in breaching duty of confidentiality by voluntarily providing affidavit to husband's attorney regarding therapy sessions of husband and wife).

Although the Virginia Supreme Court only recently expressly recognized a cause of action for the unauthorized disclosure of a patient's medical information, Virginia has long recognized the patient-physician privilege. Va. Code Ann. § 8.01-399 has been the law in the Commonwealth since 1950, and its roots can be traced to the Hippocratic Oath. ( Also, in 1997, the General Assembly enacted Va. Code Ann. § 32.1-127.03 to prevent the unauthorized disclosure of a patient's medical information.) Section 8.01-399 provides that no licensed practitioner shall be required to testify in any civil action, respecting any information which he may have acquired in attending, examining or treating the patient in a professional capacity, except at the request or written consent of the patient. During the 1998 session, the General Assembly passed SB 414 to amend section 8.01-399. The changes to the statute are designed to permit communication only under limited circumstances, such as: 1) when an attorney is representing a health care provider and contacts someone else in that provider's group because tort liability of the provider or of the contacted person may have been created vicariously by the actions of the other; 2) when the provider has been retained by the attorney for a court-ordered examination pursuant to Rule 4:10 of the Rules of the Supreme Court of Virginia; and 3) when the contact is through the provider's office staff and is about non-privileged, ministerial matters, such as scheduling a doctor's deposition, obtaining copies of the patient's records by subpoena, obtaining information necessary to obtain service of process on the physician, verifying dates the patient was treated, etc. Va. Code Ann. section 8.01-399 (D) (Michie Supp. 1998). Therefore, absent an attorney-client or Rule 4:10 relationship, ex parte discussions about substantive matters are improper and can give rise to a lawsuit.

Section 8.01-399 also provides for circumstances under which disclosure of a patient's confidential information is appropriate; however, the 1998 amendments narrow these circumstances. "[W]hen the physical or mental condition of the patient is at issue in a civil action, facts communicated to, or otherwise learned by, such practitioner in connection with such attendance, examination or treatment shall be disclosed but only in discovery pursuant to the Rules of Court or through testimony at the trial of the action." Va. Code Ann. section 8.01-399 (B) (Michie Supp. 1998). As illustrated in Curtis, it was often unclear when the physical or mental condition of the patient was at issue. As a result, the General Assembly added caveats to the disclosure requirements. Now, dissemination of such information is only appropriate through formal discovery or at trial, thereby limiting disclosure opportunities and allowing the patients and courts to have greater control over the disclosure.

Additionally, section 8.01-399 (F) expressly allows for dissemination of information by the physician "where such disclosure is necessary in connection with the care of the patient, the protection or enforcement of the practitioner's legal rights including such rights with respect to medical malpractice actions, or the operations of a health care facility or health maintenance organization or in order to comply with state or federal law." Subsection F does not require that the physician be an actual or potential party to a medical malpractice action. Therefore, in Archambault v. Roller, 254 Va. 210, 213 (1997), the Virginia Supreme Court held that "legal rights" include, but are not limited to, such rights with respect to being deposed as well as being a party in the lawsuit. Moreover, there exists no physician-patient privilege in a criminal prosecution in Virginia. In re Times-World Corp., 25 Va. App. 405 (1997) (citation omitted).

While it is true that a patient waives certain rights and gives implied consent to the release of medical information when he files a lawsuit and places his medical condition at issue, that waiver does not necessarily extend to everything which a patient may have shared in confidence with the physician. West Virginia ex rel. Joan B. Kitzmiller v. Henning, 437 S.E.2d 452, 454 (W. Va. 1993). Several courts have held that such a waiver extends only to the extent that the physician may be required by means of a subpoena to furnish relevant medical records or to appear for deposition or trial to discuss relevant treatment. West Virginia ex rel. Joan B. Kitzmiller v. Henning, 437 S.E.2d 452, (W. Va. 1993); Duquette v. Superior Court, 778 P.2d 634 (1989); and Nelson v. Lewis, 534 A.2d 720 (N.H. 1987). Given the express language of the Virginia statute, and the past rulings of the Virginia Supreme Court, Virginia courts would most likely find the arguments of these cases persuasive.

Patients possess a legal right to expect that their physicians will keep their medical information confidential. Ex parte communications between physicians and defense attorneys can result in the patient filing a tort action for negligent and/or intentional infliction of emotional distress, humiliation, embarrassment, defamation, malpractice, etc. The filing of a lawsuit does not constitute an absolute waiver of the patient's right to confidentiality, even when that patient's physical and mental condition is at issue in the lawsuit. Disclosure of the patient's medical information must be in accordance with the Rules of Court or at trial. To protect their patients and themselves, physicians should avoid ex parte communications relating to substantive, medical issues of the patient and ensure that formal discovery procedures, such as subpoenas and depositions, and trial testimony are the only methods of communication employed when disseminating a patient's confidential information.