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West Virginia Supreme Court Finds Medical Providers May Be Sued for Disclosure of Mental Health Records
On May 31, 2018, the Supreme Court of Appeals of West Virginia ruled a hospital may be sued for a private tort cause of action for the wrongful disclosure of medical records despite compliance with the West Virginia Medical Records Act and HIPAA. In Barber v. Camden Clark Memorial Hospital, the Court held that providing mental health records without a signed authorization or a court order is in violation of W. Va. Code § 27-3-1. Therefore, the current statutory interplay allows patients to file a tort claim against a covered entity if mental health records are released without a signed patient authorization or court order that satisfies the requirements of § 27-3-1.
At the trial court level, the plaintiff sued Sedgwick Claims Management Services alleging fraud in handling a workers’ compensation claim. Sedgwick subpoenaed Camden Clark seeking the plaintiff’s medical records. Notice of the subpoena was provided to the plaintiff, with directions that the hospital was not to comply for 15 days to allow plaintiff to object. Plaintiff “did not file a motion to quash nor object in any way.” Therefore, Camden Clark provided the plaintiff’s records in a sealed envelope and the lawyers who issued the subpoena sent copies to the patient, pursuant to W. Va. Code § 57-5-4a(a) (the West Virginia Medical Records Act) and HIPAA. Some of the medical records included mental health records.
After realizing that the mental health records were disclosed, the plaintiff sued the hospital claiming wrongful release in violation of W. Va. Code § 27-3-1. However, the trial court dismissed her complaint, finding that Camden Clark followed the Medical Records Act and HIPAA regulations. The trial court also determined that the patient had an opportunity to object and failed to do so.
The Supreme Court reversed the dismissal, allowing the plaintiff’s tort claim to proceed. The Supreme Court reasoned, “[i]n this case, there is no dispute that Camden Clark complied with the statutory procedure for production of its records. The issue is whether Ms. Barber has a claim against Camden Clark because it included documentation of her mental health treatment in the records it produced although no court order or written consent authorized the disclosure. . . . West Virginia Code § 27-3-1 does not permit disclosure of those records unless one of its exceptions applies or the patient provides written consent.” The Court also repeated its holding in R.K. v. St. Mary’s Med. Ctr., Inc., 229 W.Va. 712, 735 S.E.2d 715 (2012) that “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.” The Court ultimately held “that a hospital’s compliance with the [Medical Records] Act and HIPAA 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.”
It is also important to note that, in footnote three, the Court suggests that a 2018 amendment to § 27-3-1 will permit that disclosure of confidential mental health records subpoenaed in a court proceeding. Section 27-3-1 was amended in 2018. The amendment is effective 90 days from the passage date of March 8, 2018, and includes additional exceptions for disclosure of confidential information in judicial and administrative proceedings.
The Barber decision demonstrates that: (1) covered entities may be sued if mental health records are improperly disclosed; and (2) the requirements that must be met before the disclosure of such records should be carefully considered in light of changing code provisions. In sum, covered entities should consult with an attorney if served with a subpoena that seeks the disclosure of mental health records.
Click here to review the complete ruling.