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finding a hospital's compliance with HIPAA when responding to a subpoena for patient records did not preclude an action based on the wrongful disclosure of confidential information
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No. 17-0643
05-31-2018
Jill C. BARBER, Plaintiff Below, Petitioner v. CAMDEN CLARK MEMORIAL HOSPITAL CORP., Defendant Below, Respondent
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
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
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. 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:
Ms. Barber's worker's compensation claim concerned an injury she sustained while employed by Family Dollar.
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. 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.
According to the complaint, Ms. Barber received mental health treatment at St. Joseph's Hospital, which was purchased by West Virginia United Health System in 2011 and merged with Camden Clark to create a regional medical center.
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 Clark. Thereafter, Ms. Barber filed this action in the Circuit Court of Wood County.
In her January 23, 2017, complaint, Ms. Barber alleged that Camden Clark breached its "statutory and common law duty to restrict access to [her] mental health medical records, including those defined as 'confidential information' under [West Virginia Code] § 27-3-1 (2008)." Ms. Barber asserted that Camden Clark had disclosed her confidential information without her consent and without a court order as provided in West Virginia Code § 27-3-1(b)(3). Ms. Barber also asserted a claim for intentional infliction of emotional distress. Ms. Barber alleged she "was in denial about her prior psychiatric treatment and did not inform anyone, including her attorney, that she had been treated for mental health as an adolescent" and "[u]pon being confronted with this confidential material ... [she] suffered extreme emotional distress, humiliation and embarrassment."
Located in Chapter 27, which addresses "Mentally Ill Persons," West Virginia Code § 27-3-1 is titled "Definition of confidential information; disclosure." When Ms. Barber filed her complaint, the statute provided in its entirety, as follows:
(a) Communications and information obtained in the course of treatment or evaluation of any client or patient are confidential information. Such confidential information includes the fact that a person is or has been a client or patient, information transmitted by a patient or client or family thereof for purposes relating to diagnosis or treatment, information transmitted by persons participating in the accomplishment of the objectives of diagnosis or treatment, all diagnoses or opinions formed regarding a client's or patient's physical, mental or emotional condition, any advice, instructions or prescriptions issued in the course of diagnosis or treatment, and any record or characterization of the matters hereinbefore described. It does not include information which does not identify a client or patient, information from which a person acquainted with a client or patient would not recognize such client or patient and uncoded information from which there is no possible means to identify a client or patient.
(b) Confidential information shall not be disclosed, except:
(1) In a proceeding under section four [§ 27-5-4], article five of this chapter to disclose the results of an involuntary examination made pursuant to section two [§ 27-5-2], three [§ 27-5-3] or four [§ 27-5-4] of said article;
(2) In a proceeding under article six-a [§§ 27-6A-1 et seq.] of this chapter to disclose the results of an involuntary examination made pursuant thereto;
(3) Pursuant to an order of any court based upon a finding that the information is sufficiently relevant to a proceeding before the court to outweigh the importance of maintaining the confidentiality established by this section;
(4) To provide notice to the federal National Instant Criminal Background Check System, established pursuant to section 103(d) of the Brady Handgun Violence Prevention Act, 18 U. S. C.§ 922, in accordance with article seven-a [§§ 61A-7A-1 et seq.], chapter sixty-one of this code;
(5) To protect against a clear and substantial danger of imminent injury by a patient or client to himself, herself or another;
(6) For treatment or internal review purposes, to staff of the mental health facility where the patient is being cared for or to other health professionals involved in treatment of the patient; and
(7) Without the patient's consent as provided for under the Privacy Rule of the federal Health Insurance Portability and Accountability Act of 1996, 45 C. F. R. § 164.506, for thirty days from the date of admission to a mental health facility if: (i) The provider makes a good faith effort to obtain consent from the patient or legal representative prior to disclosure; (ii) the minimum information necessary is released for a specifically stated purpose; and (iii) prompt notice of the disclosure, the recipient of the information and the purpose of the disclosure is given to the patient or legal representative.
W.Va. Code 27-3-1 (2008). The statute was subsequently amended in 2017 and 2018. We discuss the 2018 amendment in note 10, infra .
In response to the complaint, Camden Clark filed a motion to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. Camden Clark asserted that it had fully complied with the Medical Records Act, West Virginia Code § 57-5-4a to - 4j (1981) (hereinafter the "Act"), and 45 C.F.R. § 164.512 (2016), the corresponding federal regulation under the Health Insurance Portability and Accountability Act of 1996 (hereinafter "HIPAA regulation"), which govern a non-party hospital's response to a subpoena for medical records. Camden Clark argued that Ms. Barber's failure to plead a violation of the Act and the HIPAA regulation required dismissal of her complaint. Following a hearing on the matter, the circuit court entered an order on June 12, 2017, dismissing Ms. Barber's statutory and common law claims. The circuit court found that "a patient cannot rely on the protections of West Virginia Code § 27-3-1 to bring an action against a hospital that properly complied with West Virginia and/or HIPAA regulations in responding to a subpoena for the patient's medical records where the patient never raised an objection to the subpoena[.]" Upon dismissal of her complaint, Ms. Barber filed this appeal.
Rule 12(b)(6) of the West Virginia Rules of Civil Procedure provides for dismissal of a complaint for "failure to state a claim upon which relief can be granted."
The relevant portions of the Act are set forth in the discussion section, infra .
45 C.F.R. § 164.512 provides, in pertinent part:
(e) Standard: Disclosures for judicial and administrative proceedings. (1) Permitted disclosures. A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:
....
(ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if:
(A) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iii) of this section, from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request; or
(B) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iv) of this section, from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order that meets the requirements of paragraph (e)(1)(v) of this section.
(iii) For the purposes of paragraph (e)(1)(ii)(A) of this section, a covered entity receives satisfactory assurances from a party seeking protected health information if the covered entity receives from such party a written statement and accompanying documentation demonstrating that:
(A) The party requesting such information has made a good faith attempt to provide written notice to the individual (or, if the individual's location is unknown, to mail a notice to the individual's last known address);
(B) The notice included sufficient information about the litigation or proceeding in which the protected health information is requested to permit the individual to raise an objection to the court or administrative tribunal; and
(C) The time for the individual to raise objections to the court or administrative tribunal has elapsed, and:
(1) No objections were filed; ...
....
(iv) For the purposes of paragraph (e)(1)(ii)(B) of this section, a covered entity receives satisfactory assurances from a party seeking protected health information, if the covered entity receives from such party a written statement and accompanying documentation demonstrating that:
(A) The parties to the dispute giving rise to the request for information have agreed to a qualified protective order and have presented it to the court or administrative tribunal with jurisdiction over the dispute; or
(B) The party seeking the protected health information has requested a qualified protective order from such court or administrative tribunal.
(v) For purposes of paragraph (e)(1) of this section, a qualified protective order means, with respect to protected health information requested under paragraph (e)(1)(ii) of this section, an order of a court or of an administrative tribunal or a stipulation by the parties to the litigation or administve proceeding that:
(A) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and
(B) Requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.
II. Standard of Review
Our standard for reviewing a circuit court's dismissal of a complaint is well established: "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). As discussed above, the circuit court dismissed Ms. Barber's complaint based on its finding that Camden Clark had complied with certain statutory and regulatory provisions. When reviewing a legal question involving statutory interpretation, we also employ the de novo standard. As set forth in syllabus point one of Appalachian Power Company v. State Tax Department of West Virginia , 195 W.Va. 573, 466 S.E.2d 424 (1995) : "Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Under this plenary standard, we consider the parties' arguments.
III. Discussion
Ms. Barber contends that the circuit court erred by finding that her mental health records were properly disclosed by Camden Clark pursuant to the Act and the corresponding HIPAA regulation. She argues that her mental health records were not subject to disclosure absent her written consent or a court order as provided in West Virginia Code § 27-3-1(b)(3), the exception that would have allowed disclosure of her confidential mental health records during the federal proceeding. Ms. Barber further disputes the circuit court's finding that by failing to object to the subpoena, she authorized the disclosure of her confidential mental health records. Finally, she maintains that neither the Act, nor the HIPAA regulation, precludes an action against a hospital that discloses mental health records in violation of West Virginia Code § 27-3-1.
We have previously recognized that " 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). We have also observed that "[t]his [statute's] location in Chapter 27 relating to mentally ill persons ... suggest[s] that the legislature intended this confidentiality with regard to communication and information to be maintained between mental health professionals and their clients." Id. at 597, 309 S.E.2d at 96. Accordingly, we have held that "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).
West Virginia Code §§ 57-5-4b through - 4j provides the procedure that hospitals must follow to disclose medical records in response to a subpoena. With regard to the Act, we have stated that
[a]ny 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). Under West Virginia Code § 57-5-4a(a) (1981),
"[r]ecords" means and includes without restriction , those medical histories, records, reports, summaries, diagnoses, and prognoses, records of treatment and medication ordered and given, notes, entries, X-rays, and other written or graphic data prepared, kept, made or maintained in hospitals that pertain to hospital confinements or hospital services rendered to patients admitted to hospitals or receiving emergency room or outpatient care. Such records shall not, however, include ordinary business records pertaining to patients' accounts or the administration of the institution.
(Emphasis added). In 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.
Relying upon the "without restriction" language in West Virginia Code § 57-5-4a(a) and the fact that the subpoena requested "all medical records" of Ms. Barber, Camden Clark reasons that it was required to disclose her mental health records. Because it complied with the Act and corresponding HIPAA regulation and because Ms. Barber never objected to the subpoena, Camden Clark argues that she has no cause of action for wrongful disclosure of her mental health records. In other words, Camden Clark contends that under these facts and circumstances, West Virginia Code § 27-3-1 simply does not apply.
In considering the meaning of statutory provisions, we are guided by our rules of statutory construction. It is well established that "[t]he 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). To that end, "[w]hen 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) ; see also Syl. Pt. 2, State v. Epperly , 135 W.Va. 877, 65 S.E.2d 488 (1951) ("A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.").
Given the inclusion of the words "without restriction" in West Virginia Code § 57-5-4a(a), documentation of mental health treatment clearly falls within the definition of "records," which are subject to disclosure pursuant to a subpoena under the Act. However, those mental health records are also clearly deemed "confidential information" and not subject to disclosure under West Virginia Code § 27-3-1(a) unless one of the exceptions set forth in West Virginia § 27-3-1(b) applies or the patient gives written consent as provided in West Virginia Code § 27-3-2 (2007). Thus, while the Act provides for the production of mental health treatment records pursuant to a subpoena, 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.
See note 3, supra .
West Virginia Code § 27-3-2 provides:
No consent or authorization for the transmission or disclosure of confidential information is effective unless it is in writing and signed by the patient or client by his or her legal guardian. Every person signing an authorization shall be given a copy.
Every person requesting the authorization shall inform the patient, client or authorized representative that refusal to give the authorization will in no way jeopardize his or her right to obtain present or future treatment.
Generally, "[s]tatutes 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). Even "where 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). However, when it is not reasonably possible to give effect to both statutes, the more specific statute will prevail. As we held in syllabus point one of UMWA by Trumka v. Kingdon , 174 W.Va. 330, 325 S.E.2d 120 (1984), "[t]he 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." See also Int'l Union of Operating Eng'rs v. L.A. Pipeline Constr. Co., Inc. , 237 W.Va. 261, 267, 786 S.E.2d 620, 626 (2016) ("[W]here two statutes apply to the same subject matter, the more specific statute prevails over the general statute."); Newark Ins. Co. v. Brown , 218 W.Va. 346, 351, 624 S.E.2d 783, 788 (2005) ("When faced with a choice between two statutes, one of which is couched in general terms and the other of which specifically speaks to the matter at hand, preference is generally accorded to the specific statute."). In this instance, West Virginia Code § 27-3-1 specifically addresses the subject matter at issue here—mental health records. In contrast, West Virginia Code § 57-5-4a is a general statute defining hospital records subject to disclosure pursuant to a subpoena.
Arguing that the statutes do not conflict, Camden Clark maintains that West Virginia § 27-3-1 does not apply when hospitals are served with subpoenas because they are required under the Act to produce the records. However, the legislatively-declared exceptions for disclosure set forth in West Virginia Code § 27-3-1(b) do not include a request for records pursuant to a subpoena. Indeed, we have previously declared that although
[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].
Smith , 179 W.Va. at 360, 368 S.E.2d at 924, syl. pt. 3.
To adopt Camden Clark's position would render West Virginia Code § 27-3-1 meaningless. Our rules of statutory construction do not permit us to disregard a statute without legislative direction to do so. To the contrary, "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). Likewise, our rules of statutory construction do not permit us to read into West Virginia Code § 27-3-1 an exception allowing disclosure of mental health records pursuant to a subpoena. "It is not for this Court to arbitrarily read into [a statute] that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted." Banker v. Banker , 196 W.Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996) (citing Bullman v. D & R Lumber Co. , 195 W.Va. 129, 464 S.E.2d 771 (1995). Moreover, "[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).
For the same reasons, we reject Camden Clark's contention that Ms. Barber authorized the disclosure of her mental health records by not objecting to the subpoena. West Virginia Code § 27-3-2 mandates that authorization for disclosure of mental health records be in writing and signed by the patient. A failure to object to a subpoena does not satisfy the written consent requirement of West Virginia Code § 27-3-2 to permit disclosure of mental health records under the Act.
See note 8, supra .
There is simply no basis to conclude that a patient's "confidential information," as defined by West Virginia Code § 27-3-1, may be disclosed pursuant to a subpoena under the Act even when the patient does not object. Without question, hospitals must respond to subpoenas served pursuant to the Act, and our holding in syllabus point three of Keplinger remains the rule with respect to the procedure hospitals must follow in producing the records of their patients. However, given the clear legislative intent to provide greater protection for mental health records than that afforded other medical treatment records and the absence of any statutory exception permitting the disclosure of those records in response to a subpoena, a hospital may not disclose mental health records, which are subject to the confidentiality provisions of West Virginia Code § 27-3-1(a), under the Act without the patient's consent. Accordingly, we now hold that "confidential information," as defined by West Virginia Code § 27-3-1(a), is not subject to disclosure under the Act 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.
As set forth in note 3, supra , West Virginia Code § 27-3-1 was amended in 2018. The amended statute, which becomes effective ninety days from the passage date of March 8, 2018, includes additional exceptions for disclosure of confidential information under West Virginia Code § 27-3-1(b). Of particular significance to future, similar circumstances is the provision that will permit disclosure
[p]ursuant to and as provided for under the federal privacy rule of the Health Insurance Portability and Accountability Act of 1996 in 45 CFR § 164, as amended under the Health Information Technology for Economic and Clinical Health Act of the American and the Omnibus Final Rule, 78 FR 5566 [.]
W.Va. Code § 27-3-1(b)(6) (2018). Notably, 45 C.F.R. § 164.512 permits disclosure for judicial and administrative proceedings in response to a subpoena. See note 6, supra .
Having determined that hospitals responding to subpoenas pursuant to the Act must comply with West Virginia Code § 27-3-1, we find that the circuit court erred by dismissing Ms. Barber's complaint. As noted above, we have previously recognized a cause of action for a violation of West Virginia Code § 27-3-1. We have also expressly held 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." Syl. Pt. 3, R.K. v. St. Mary's Med. Ctr. , Inc. , 229 W.Va. 712, 735 S.E.2d 715 (2012).
In R.K. , the plaintiff brought suit against the hospital for disclosing his psychiatric records without his authorization to his estranged wife during their divorce proceedings. He asserted several common law tort claims based upon the alleged wrongful disclosure of his confidential information. Relying upon the reasoning in Yath v. Fairview Clinics N.P. , 767 N.W.2d 34 (Minn. Ct. App. 2009), we rejected the hospital's assertion that the plaintiff's action was preempted by HIPAA. R.K. , 229 W.Va. at 718-19, 735 S.E.2d at 721-22. Yath, like the case at bar, involved an alleged violation of a codified state law prohibiting the disclosure of certain medical information. As the Minnesota court explained,
The general statutory rule is that HIPAA supersedes or preempts any "contrary" provision of state law. 42 U.S.C. § 1320d-7(a)(1). [Defendant clinic] Fairview argued, and the district court agreed, that Minnesota Statutes section 144.335 is "contrary" to HIPAA because section 144.335 provides for a private cause of action for the wrongful disclosure of an individual's medical records while HIPAA does not. But just because a distinction exists does not make the Minnesota provision "contrary" to HIPAA.
....
.... HIPAA requires entities that maintain or transmit health care information to establish safeguards "to ensure the integrity and confidentiality" of an individual's health care information and "to protect against any reasonably anticipated ... unauthorized uses or disclosures of the information." 42 U.S.C. § 1320d-2(d)(2). If a person wrongfully discloses health care information, that person may be subject to criminal penalties, including fines or imprisonment. 42 U.S.C. § 1320d-6. Rather than creating an "obstacle" to HIPAA, Minnesota Statutes section 144.335 supports at least one of HIPAA's goals by establishing another disincentive to wrongfully disclose a patient's health care record. We hold that Minnesota Statutes section 144.335 is not a contrary state law preempted by HIPAA.
R.K. , 229 W.Va. at 718-19, 735 S.E.2d at 721-22 (quoting Yath , 767 N.W.2d at 49-50 ); see also WV Dep't of Health & Human Res. v. E.H. , 236 W.Va. 279, 290, 778 S.E.2d 728, 739 (2015) ("Because the HIPAA Privacy Rule is viewed as a floor of privacy protections for individuals, state laws may provide greater or more stringent protections. In those instances where state law is determined to be more stringent because it imposes enhanced or more detailed protections, the state law is not preempted by HIPAA."). Thus, "HIPAA does not preempt state-law causes of action for the wrongful disclosure of health care information." R.K. , 229 W.Va. at 718, 735 S.E.2d at 721. Accordingly, we now hold that a hospital's compliance with the 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.
IV. Conclusion
Based on the foregoing, we find that the circuit court erred by dismissing Ms. Barber's complaint. Therefore, the final order of the Circuit Court of Wood County entered on June 12, 2017, is reversed, and this case is remanded for further proceedings consistent with this opinion.
Ms. Barber also asserted that the circuit court erred by making a factual finding in its dismissal order that she was "dishonest" with her counsel by not disclosing her prior mental health treatment. In considering a motion to dismiss, the "[c]omplaint[ ] [is] to be read liberally as required by the notice pleading theory underlying the West Virginia Rules of Civil Procedure .... The circuit court, [must] view[ ] all the facts in a light most favorable to the nonmoving party[.]" McGraw , 194 W.Va. at 776, 461 S.E.2d at 522. As noted above, the complaint alleged that Ms. Barber "was in denial about her prior psychiatric treatment and did not inform anyone, including her attorney, that she had been treated for mental health as an adolescent." Ms. Barber argues that "being in denial" does not equate to "dishonesty" and that this factual issue is for the jury to determine, not the circuit court. Although the factual finding that Ms. Barber was dishonest is not supported by a liberal reading of the complaint, we need not address this matter further in light of our decision to reverse the circuit court's order for the reasons set forth above.
As noted, the claimant also set forth a claim for intentional infliction of emotional distress. Because the circuit court's dismissal of that claim was based solely upon its interpretation of the Act and HIPAA regulation, we do not otherwise address the validity of that claim.
Reversed and remanded.
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.
WORKMAN, C. J., dissenting:
With blinders squarely in place, the majority has misinterpreted a statute aimed at mental health providers and facilities and thereby rendered a hospital's fully statutorily-compliant acts actionable. Respondent Camden Clark Memorial Hospital ("Camden Clark") responded to a properly-issued subpoena in strict compliance with its statutorily-mandated obligations, yet the majority has post-hoc burdened it with the impossible task of likewise complying with an incongruous and inapplicable statutory provision regarding mental health records. Because the majority's opinion purports to create liability for unsuspecting hospitals and/or health care providers which appropriately and meaningfully complied with medical records subpoenas, I respectfully dissent.
A party in unrelated litigation subpoenaed petitioner's medical records from Camden Clark, with full notice to petitioner, who was represented by counsel. Petitioner lodged no objection to the subpoena which was issued and handled it in strict compliance with the notice and reasonable wait period required by this Court in Keplinger v. Virginia Elec. & Power Co ., 208 W. Va. 11, 12, 537 S.E.2d 632, 633 (2000). After being advised that petitioner had made no objection, Camden Clark scrupulously complied with the extraordinarily detailed procedure for production of hospital records under subpoena as set forth in West Virginia Code §§ 57-5-4a through 4j (Repl. Vol. 2012). However, contained somewhere within these records was a mental health admission which occurred at a predecessor hospital which petitioner failed to disclose to her counsel. As part of the production of her requested complete medical record and having been advised of no objection to their production, these records were produced as required by West Virginia Code § 57-5-4a et seq . Petitioner's counsel admitted that he did not review the records upon production. There is no dispute about these facts.
Syllabus Point 5 provides
[w]hen a party to a civil action seeks to utilize W. Va. R. Civ. P. 45 to subpoena an opposing party's medical records from a nonparty (as opposed to obtaining them by virtue of a release tendered by the party/patient), notice to the party/patient must occur sufficiently in advance of service of the subpoena to provide a reasonable opportunity for the patient/party to object to the request.
Apple CEO Tim Cook, New User Protections (CNN Television Broadcast June 4, 2018).
In spite of this not only lawful, but statutorily required act, the majority has seen fit to find that this action was violative of West Virginia Code § 27-3-1 (Repl. Vol. 2013). Without so much as examining the context of West Virginia Code § 27-3-1, nor attempting to square a hospital's seemingly competing obligation in responding to a subpoena contained in West Virginia Code § 57-5-4a et seq ., the majority concludes that the disclosure ran afoul of a statutory provision generally deeming mental health records confidential. The majority addresses the ostensibly conflicting provisions of the hospital record disclosure statutes by simply declaring the mental health confidentiality statute "more specific" and therefore predominant over the "more general" hospital record disclosure statute. An examination of both demonstrates that this canon of statutory construction—"specific over general"—is not only inapplicable but its misapplication creates a wholly untenable scenario as pertains to the ability to subpoena hospital or other medical records.
West Virginia Code § 57-5-4a through 4j was enacted in 1981 and outlines the procedure to be followed by hospitals and litigants with regard to subpoenas specifically for "[h]ospital records." It provides that, for its purposes, hospital "records"
includes without restriction , those medical histories, records, reports, summaries, diagnoses, and prognoses, records of treatment and medication ordered and given, notes, entries, X-ray, and other written or graphic data prepared, kept, made or maintained in hospitals that pertain to hospital confinements or hospital services rendered or patients admitted to hospitals or receiving emergency room or outpatient care.
W. Va. Code § 57-5-4a(a) (emphasis added). Nowhere does it exempt records which fall within its unrestricted definition which involve, more specifically, mental health treatment. The statutory scheme provides that to comply with a subpoena for such records, a hospital must produce "a true and correct copy ... of all records described in such subpoena." W. Va. Code § 57-5-4b (emphasis added). It then describes a detailed methodology of sealing, identifying, and opening such records and duties pertaining specifically to the hospital's records custodian. This self-contained statutory scheme is contained in the Code chapter pertaining to "Evidence and Witnesses" and makes no exceptions, caveats, or deferments to other statutory provisions whatsoever.
West Virginia Code § 27-3-1, on the other hand, is part of Chapter 27 entitled "Mentally Ill Persons." Article 1A outlines the appointment of a Commissioner of the Department of Mental Health and expressly provides that its purpose is "to improve the administration of the state hospitals, raise the standards of treatment of the mentally ill and intellectually disabled in the state hospitals, encourage the further development of outpatient and diagnostic clinics, establish better research and training programs, and promote the development of mental health." W. Va. Code § 27-1A-1. "State hospital[s]" are defined therein as any hospital, center or institution "established, maintained and operated ... to provide inpatient or outpatient care and treatment for the mentally ill, intellectually disabled or addicted." W. Va. Code § 27-1-6. The remainder of the chapter deals with voluntary and involuntary commitments, commitments of criminal defendants, and offenses related to mentally ill persons.
West Virginia Code § 27-3-1(a), as part of this statutory scheme regarding mental health facilities, provides generally that "[c]ommunications and information obtained in the course of treatment or evaluation of any client or patient are confidential information." It then provides that this confidentiality extends to
the fact that a person is or has been a client or patient, information transmitted by a patient or client or family thereof for purposes relating to diagnosis or treatment, information transmitted by persons participating in the accomplishment of the objectives of diagnosis or treatment, all diagnoses or opinions formed regarding a
client's or patient's physical, mental or emotional condition, any advice, instructions or prescriptions issued in the course of diagnosis or treatment, and any record or characterization of the matters hereinbefore described.
Id . It is clear given the tenor and language of this statute that it is intended to advise mental health facilities and providers that their records—in fact, the mere existence of them—are confidential. It places no undue burden on these facilities or providers to constrain their ability to disclose the very fact of or the details regarding their treatment of their entire patient or clientele base. The conditions under which these facilities may make disclosures regarding their treatment make it quite obvious that the statute is intended to provide guidance to such specialized facilities in producing records insofar as is necessary for purposes such as voluntary and involuntary commitment proceedings, commitment of criminal defendants, and National Instant Criminal Background Check System reporting. The entire purpose, therefore, of the statute is to provide limitations on and guidance to mental health facilities as to how and under what circumstances their very specialized records may be utilized in the course of rendering and reporting on mental health treatment or coordinating with other mental health entities or procedures. This Court has previously acknowledged as much:
This section's location in Chapter 27 relating to mentally ill persons and the confidential information exceptions contained in W. Va. Code, 27-3-1(b), which involve mental health proceedings, would suggest that the legislature intended this confidentiality with regard to communication and information to be maintained between mental health professionals and their clients.
State v. Simmons , 172 W. Va. 590, 597, 309 S.E.2d 89, 96 (1983) (footnote omitted) (emphasis added).
Nevertheless, so myopically focused on a superficial reading of the statute, the majority overextends the statute's reach to place an onerous burden on an unsuspecting hospital which may happen to have records of or merely some reference to prior mental health treatment contained within the volumes upon volumes of records which it maintains. To reach this result, the majority misapprehends the very statutory construction principles upon which it relies. First and foremost, " 'it is the duty of the courts, in the construction of statutes, to harmonize and reconcile laws, and to adopt that construction of a statutory provision which harmonizes and reconciles it with other statutory provisions ....' " State v. Williams , 196 W.Va. 639, 641, 474 S.E.2d 569, 571 (1996) (quoting State ex rel. Pinson v. Varney , 142 W.Va. 105, 109-10, 96 S.E.2d 72, 75 (1956) ) (additional internal quotations and citations omitted). The majority opinion does just the opposite: it saddles Camden Clark with liability for merely adhering to a long-standing statutory procedure expressly directed at the conduct of its business specifically on the basis of a statute that applies to the obligations of very specific entities as part of an independent statutory scheme.
More importantly, however, the specific canon of statutory construction the majority singularly utilizes to reach its result simply has no application. The canon of statutory construction requiring a specific statute to be "given precedence" over a general statutory provision applies only to "inconsistent statutes which, together, form a part of a comprehensive body of law ..." Carvey v. W. Virginia State Bd. of Educ ., 206 W. Va. 720, 731, 527 S.E.2d 831, 842 (1999). The reason for this is obvious: in creating a comprehensive body of law, lawmakers are presumed to do so holistically, such that their contents should be read in harmony. There is no question that although these two statutes both address generally the concept of medical records, they are by no means part of a comprehensive body of law. Rather, the mental health record statute is specifically part of a body of law exclusively addressing "mentally ill persons," and governing mental health facilities and providers. The hospital subpoena statute pertains specifically to a hospital's production of records in response to a subpoena, as part of our general laws regarding evidence and witnesses. Accordingly, the mental health confidentiality statute is not a "more specific" iteration of medical record production rules. Rather, as pertains to a hospital producing medical records in response to a subpoena, the statutory scheme governing precisely that activity by that entity could not possibly be more specific to that activity or entity and plainly purports to preempt and govern that process exclusively.
It goes without saying that a hospital is not a mental health facility. That is not to say that such services may not be rendered in a hospital—obviously they can be. However, it is clear that a hospital is a medical facility of such breadth of service and operation that attempting to burden it—as an entity simply responding to a properly-issued subpoena—with statutory requirements that clearly pertain to the facilities and providers which exclusively deal with such matters is inequitable and not what the Legislature intended by enacting West Virginia Code § 27-3-1. The best evidence perhaps of the Legislature's intended reach of the statute—even specifically as to mental health facilities or providers—is its most recent amendment, which permits the disclosure of such records pursuant to a subpoena insofar as the production is HIPAA-compliant, just as the records production at issue was. See Senate Bill 543, effective June 5, 2018.
In light of this amendment, the majority's opinion is self-limiting, applying only to those subpoena disclosures which have already occurred or will occur until the effective date of the amendment. The amendment notwithstanding, the practical ramifications of the majority's opinion are wholly unsettling and demonstrate how badly its analysis has missed the mark.
It begs the question what expectations the majority had, if any, as to how a hospital should have handled subpoenas issued prior to its opinion. Was a hospital in receipt of a subpoena required to scour the hundreds or thousands of pages of medical records on a patient for any mere reference, "record or characterization" of any semblance of a "mental health" matter? See W. Va. Code § 27-3-1(a). Mental health information per the language of the statute includes not only an obvious mental health hospital admission, but any "record or characterization" of mental health treatment. This would presumably include any reference thereto in a past medical history or list of medications (items which are included repeatedly in nearly every hospital document created during an admission). And what was the hospital to do upon discovering such references? The statute forbids disclosing that any such information even exists; therefore, potential options such as redaction, notifying the litigants or the court officer subpoenaing the information would not appear to have been viable options. Was the hospital simply to "hide" such information and pretend it never existed for fear of violating the statute? Was the hospital to risk non-compliance with the subpoena at the risk of being sued for even alerting the parties that certain information, though properly requested, will not be provided if it even exists? These are quagmires peculiar to hospital records because of their overwhelming breadth of content and volume that simply do not exist if a subpoena is being issued directly to a mental health facility or provider: obviously the entirety of that record is, presumptively , a matter which is subject to the statute, a fact well-known to and able to be addressed head-on by the litigants. (continued ...)
What is Mental Health ?, Mental Health.gov, https://www.mentalhealth.gov/basics/what-is-mental-health. (August 29, 2017).
This Court has made clear that "[i]n gleaning legislative intent, we endeavor to construe the scrutinized provision consistently with the purpose of the general body of law of which it forms a part ." State ex rel. McGraw v. Combs Servs ., 206 W. Va. 512, 518, 526 S.E.2d 34, 40 (1999) (emphasis added). Accordingly, "[s]tatutes 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 Compensation Comm'r , 159 W.Va. 108, 219 S.E.2d 361 (1975) (emphasis added). These are not just empty ad hoc edicts to be doled out as window dressing for a particular resolution. These canons of statutory construction exist to ensure that this Court does not take an isolated statutory enactment and, despite all reason, practicality, and logic, apply it to situations to which it was never meant to apply. Rather than adhering to these precepts, the majority commingles statutes of differing specific subject matters and wholly different purposes, enacted separately as parts of entirely different statutory schemes. The result is much as one would expect: an entity which complied fully with those statutes specifically appertaining to it and its specific activity is now unwittingly subjected to liability for doing so. Accordingly, I dissent.
That is not to say, obviously, that no cause of action lies for violation of West Virginia Code § 27-3-1. This Court has previously held that "[t]here is a private tort cause of action for a violation of W. Va. Code, 27-3-1 [1977]." However, such a cause of action under the statute lies only against those who are subject to the statute—mental health providers and facilities. Moreover, my position on the inapplicability of the statute to Camden Clark's production of medical records pursuant to a subpoena is in no way affected by Syllabus Point 3 of R. K. v. St. Mary's Med. Ctr., Inc ., 229 W. Va. 712, 735 S.E.2d 715 (2012), which holds simply that a "common-law tort claim[ ] based upon the wrongful disclosure of medical or personal health information [is] not preempted by [HIPAA]." (emphasis added). First, as is obvious, the majority opinion does not address the viability of a common law tort claim. R. K . did not reference in any fashion the statute at issue. More importantly, however, the absence of liability in this instance is not premised on HIPAA preemption. Rather, it is based upon the wholesale inapplicability of the statute at issue, as explained herein.
Diagnostic and Statistical Manual of Mental Disorders (DSM-5®) (American Psychiatric Association Publishing, 5th ed. 2018)
KAUFMAN, Tod J., concurring:(Filed June 29, 2018)
"Privacy is a key civil liberty which defines who we are as Americans." 1
The most important part of this case, in my opinion, is about privacy. I write separately to support the majority opinion and to emphasize the privacy aspect implied in it.
Mental Health Treatment and Records
This case is about mental health and mental health records pursuant to W.Va. Code § 27-3-1. The hospital moved, and the lower court ruled on W.Va.R.Civ.P. Rule 12(b)(6) that W.Va. Code § 27-3-1 cannot state a cause of action when W.Va. Code § 57-5-4a et seq. (subpoena for records) is followed. This Court respectfully disagrees.
Mental Health
For far too long, mental health treatment has been stigmatized. Mental health treatment can include various neurological and psychological issues. It can include many different types of treatment and the records concerning it, including the myriad of mental health issues caused by the opiate epidemic, its treatment of addiction, as well as the mental health records generated from this treatment.
Mental health includes "our emotional, psychological, and social well-being. [it] is important at every stage of life, from childhood and adolescence through adulthood."2 Mental Health can include alcoholism, depression, autism, and PTSD, and hundreds of other illnesses, far too numerous to cite.3 Moreover, mental health treatment and the records generated from the treatment are equal protection issues: mental health knows no age limitations, racial barriers, genetic make-up, and sadly, sometimes no cure. This case about the legal privacy of mental health records exposes just one more hurdle in the equal protection battle for those dealing with mental health treatment and records, and for those whose lives without protection run the risk of being further marginalized.
The Health Insurance Portability and Accountability Act hereinafter ("HIPPA") ( 42 U.S.C.A. § 1320a–7c(a)(3)(B)(ii) ), protects disclosure of records and treatment, creating a federal privacy and liberty interest that deserves constitutional protection under the Fourteenth Amendment. In my opinion, this state's mental health statute ( W.Va. Code § 27-3-1 ) implies a liberty interest that can be characterized as a "right of privacy," consistent with HIPPA and W.Va. Code § 27-3-1. This Court should protect the privacy of these records and recognize the interest of privacy for what it is. "It is an interest (through codification of 27-3-1) which cannot be taken away without due process of law." , Not long after I began my public service career as a West Virginia State Senator in 1982, I advocated for the bill to require mental health insurance coverage to be provided by insurance carriers in all state public employee insurance policies that offered physical health protection. The stigma on mental health concerns then, as now, were evident. In years to come, mental health coverage was, and is presently, covered under provisions of the public health insurance plan "(PEIA)" and other health insurance plans, as it should be, consistent with equal protection of health plans for mental health treatment.
Beaney, The Constitutional Right to Privacy in the Supreme Court , 1962 Sup.Ct.Rev. 212; citing Nutting, The Fifth Amendment and Privacy , 18 U. Pitt. L. Rev. 533 (1957).
"It can be argued that if free speech, free press, and freedom of religion can all be found implicit in the term 'liberty' in the Fourteenth Amendment, little more is needed to add the right to privacy to that list. On the other hand, it is true that by including the meaning of First Amendment rights in the Fourteenth Amendment a court has the guidance furnished by First Amendment cases. In the course of examining the power of the federal government to refuse to issue passports, the Court stated that the right to travel is a part of the "liberty" of which the citizen cannot be deprived without due process of law under the Fifth Amendment, a conclusion with which the Solicitor General agreed. It is only a short step, then, to assert that the right to privacy, like the right to travel, is essential to a free society and that interference with that right is an intrusion on the 'liberty' of the person affected." Id. at 249; citing Kent v. Dulles , 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958).
Statutory Backdrop
It was not until 2007 that the process for disclosure of confidential mental health information as defined by W.Va. Code § 27-3-1(a), at issue herein, was added to our West Virginia Code. Unless one of the exceptions in W.Va. Code § 27-3-1(b) as applied to the patient is met, or the individual has authorized the disclosure provided in W.Va. Code § 27-3-2 (2007) or a Court has approved same after the documents in question are presented to a Court for an in camera review to determine through a "balancing test" of interests as required by federal and state law, then mental health records can not be disclosed. These statutory requirements were not met in the case below. Thus, the privacy of a citizen's record who had before sought mental health treatment was violated by disclosure. See HIPPA; 42 U.S.C.A.§ 1320(a) W.Va. Code § 27-3-1 et seq.
"Balancing" means for a trial judge to determine whether the public interest (in the ends of justice) to disclose records outweighs the privacy of records protected from disclosure. In these in camera reviews, which the undersigned has performed over the past 30 years as a trial judge, name and events can be redacted by the trial judge to protect certain privacy. In other instances, after reviewing documents in camera , the trial judge may only permit seeing but not copying court records. Further, an errata sheet can be prepared and no disclosure authorized; courts can place records under seal and not disclose, pending review by the West Virginia Supreme Court of Appeals. These are not exhaustive or innovative techniques by any stretch that may be used by a trial judge in determining disclosure or privilege in camera review, only some. Judges should use their judicial discretion and the judicial process available to always find the privacy in their records first, and then the determination of justice shall follow.
In this case, the courts are essentially balancing the interests of the mental health patients, a minority interest if you will, against a large provider of health care to see what kind of weight to give to each side of this case, with the weight of authority on the citizen's "privacy" side of the equation.
The Statutes in the Case
The statutory construction governing disclosure of medical records ( W.Va. Code § 57-5-4a ) involves subpoenas and the compliance on its face of the subpoena' while the privacy contained in the specific code section controlling mental health records ( W.Va. Code § 27-3-1 ) serves as a separate protection of privacy over and above the general subpoena (57-5-4a). If mental health records were released without the interpretation as made by the majority opinion, the provisions of 27-3-1(a) would simply lack any efficacy or meaning, and render protection (non-disclosure without consent or a court order) as if there were no statutory protection in W.Va. Code § 27-3-1(a) at all. This was done below at the trial court level in Wood County by the granting of the Rule 12(b)(6) motion , and it is this ruling which the majority reverses herein.As the dissenting opinion discusses legislative intent, the undersigned does agree that an important part of statutory construction could be to ascertain and give effect to the intent of the legislature. Statutes should be interpreted the way they were intended by the legislature to be applied. However, we don't have any published "legislative intent" in our part-time West Virginia legislature per se , unless the legislative journals each day or committee notes could be considered such. In this regard, however, the Code Section on mental health record disclosure is a privacy statute and is required to be read co-terminously with other disclosure statutes of all other medical records. One needs little more than to be a strict constructionist to interpret W.Va. Code § 27-3-1 as it is intended. The dissent is correct in emphasizing that "it is the duty of the courts, in the construction of statutes, to harmonize and reconcile laws, and to adopt that construction of a statutory provision which harmonizes and reconciles it with other statutory provisions." State v. Williams , 196 W.Va. 639, 641, 474 S.E.2d 569, 571 (1996) (quoting State ex rel. Pinson v. Varney , 142 W.Va. 105, 109-10, 96 S.E.2d 72, 75 (1956) ). This Court vehemently disagrees with the dissent on how the statutory provisions are harmonized and reconciled. As the old saying goes, there is nothing wrong with the lamb and the lion lying down next to each other ... just as long as the lamb is not inside the belly of the lion ....
A motion for W.Va.R.Civ.P. Rule 12(b)(6) should rarely be granted by the trial court. Its jurisprudence is to resolve disputes on the merits. Here, as the majority holds, there is a cause of action under W.Va. Code § 27-3-1 as a matter of law.
The trial court, in appraising the sufficiency of complaint on a motion to dismiss for failure to state a claim, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. W.Va.R.Civ.P 12(b)(6) ; see also Holbrook v. Holbrook , 474 196 W. Va. 720 S.E.2d 900, (1996).
The Subpoena
The issuing of a subpoena is a powerful tool. One using it, the lawyer or the layperson with the Clerk's signature, essentially, is acting like one who is acting in the name of the State. Not only are subpoenas powerful tools in discovery, but they can be issued and signed by any attorney as an officer of the Court. See W.Va.R.Civ.P. 45(a)(3). Without the limitations and exceptions of W.Va. Code § 27-3-1 et seq., the subpoena becomes an over-reaching method for potential abuse and can be used to invade the liberty interests of citizens who have sought mental health treatment. Without the requirements of W.Va. Code § 27-3-1 read in pari materia , with W.Va. Code § 57-5-4a, the subpoena can cause unnecessary delays, unnecessary costs and an evisceration of the rights of citizens in the name of our court system constructed to protect the very rights sought to be preserved.
Subpoenas command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified. W.Va.R.Civ.P. 45.
[Latin, Upon the same subject.] A designation applied to statutes or general laws that were enacted at different times but pertain to the same subject or object. Statutes in pari materia must be interpreted in light of each other since they have a common purpose for comparable events or items. West's Encyclopedia of American Law ( The Gale Group, Inc, 2nd ed. 2008).
Concurring Ruling
For these additional reasons, and particularly the constitutional one on the issue of privacy, I concur in the majority's opinion and result. By concurring, I would also reverse the Rule 12(b)(6) Order by the lower court and permit amending the complaint, allowing this mental health action to proceed to trial.