Health Law Daily Failure to object to subpoena not consent to disclose mental health record
Friday, June 1, 2018

Failure to object to subpoena not consent to disclose mental health record

By Patricia K. Ruiz, J.D.

The Supreme Court of Appeals of West Virginia held that West Virginia law creates a private tort cause of action for disclosure of mental health treatment records without a court order or written consent of the patient. The court stated that a patient’s failure to object to a subpoena requesting medical records does not constitute consent to disclose confidential mental health records (Barber v. Camden Clark Memorial Hospital Corp., May 31, 2018, Wharton, J.).

Lower court decision. Previously, a patient brought an action in the Southern District of West Virginia against a claims management service for fraud related to the handling of a worker’s compensation claim. During the federal proceeding, Sedwick served a subpoena on Camden Clark Memorial Hospital Corp. (Camden Clark) requesting all of the patient’s medical records. The patient received notice of the subpoena but did not file a motion to quash nor object to the subpoena. Camden Clark responded by producing more than 1000 pages of documents, including hospital records showing the patient had received inpatient mental health treatment when she was a teenager. During the patient’s deposition for the federal case, the patient was confronted with her mental health records. The patient then filed the instant case in the Circuit Court of Wood County.

Allegation of improper disclosure of mental health records. In her state court complaint, the patient alleged that Camden Clark had breached its statutory and common law duty to restrict access to her mental health medical records and that the hospital had disclosed the information without her consent and without a court order under W. Va. Code 27-3-1. She also made a claim for intentional infliction of emotional distress based on the "extreme emotional distress, humiliation, and embarrassment" of being confronted with the records in court. The court dismissed the claims on the hospital’s motion, reasoning that the code section cited by the patient did not support a claim against a hospital if it had complied with the state’s Medical Records Act and federal regulations under the Health Insurance Portability and Accountability Act (HIPAA) (P.L. 104-191).

Appeal. On appeal, the patient argued that the circuit court erred by finding that her mental health records were properly disclosed by Camden Clark under the Act and HIPAA regulations, as the mental health records were not subject to disclosure without her written consent or a court order, under W. Va. Code 27-3-1. Previously, this court held that the statute creates a private tort cause of action, as it provides a procedure hospitals must follow to disclosure medical records in response to a subpoena. While Camden Clark did comply with the statutory procedure for production of its records, the issue is whether the hospital should have included documentation of her mental health treatment in the records it produced, in the absence of a court order or written consent.

While, under West Virginia law, mental health treatment records within the definition of "records" subject to disclosure under a subpoena, mental health records are also clearly deemed "confidential information" not subject to disclosure unless certain exceptions apply or the patient provides written consent. The court stated that a patient’s failure to object does not constitute consent and noted clear legislative intent to provide greater protection for mental health records than that afforded to other medical records. Thus, the court concluded that the circuit court erred in dismissing the patient’s complaint and remanded the case for further proceedings.

Dissent. One judge issued a strongly-worded dissenting opinion stating that the majority misrepresented a statute aimed at mental health providers and facilities, rendering a hospital’s fully statutorily compliant acts actionable. The dissent stated that Camden Clark responded to a properly issued subpoena in strict compliance with its statutory obligations, but the majority burdened it with an impossible task of complying with an "incongruous and inapplicable statutory provision regarding mental health records."

Attorneys: James D. McQueen (McQueen Davis, PLLC) for Jill C. Barber. Thomas J. Hurney, Jr. (Jackson Kelly PLLC) for Camden Clark Memorial Hospital Corp.

Companies: Camden Clark Memorial Hospital Corp.

MainStory: TopStory HIPAANews WestVirginiaNews

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