Magazine article Developments in Mental Health Law

The Virginia Patient Health Records Privacy Act of 1997

Magazine article Developments in Mental Health Law

The Virginia Patient Health Records Privacy Act of 1997

Article excerpt

Until the 1997 legislative session, Virginia's law relating to confidential medical or mental health information was contained in a patchwork of statutes that were difficult to find and even more difficult to understand and apply. Taken together, those laws neither told patients when an expectation of confidentiality would be respected, nor clearly alerted the professional when a disclosure of confidential information was appropriate. Ironically, while there were more than twenty different statutes that allowed or required doctors to breach patient confidentiality, there was no statute in Virginia that specifically required confidentiality to be maintained in both public and private therapeutic contexts.

The only broad legal protection of confidential information available was provided by a privilege against mandatory disclosure in the litigation context. Virginia Code Sections 8.01-399 and 8.01-400.2 protected patients against compelled court disclosure of confidential medical information. Though these laws can provide a harbor against compelled revelations of confidential matter in court, their inadequacy as barriers to other improper disclosures of personal information was highlighted in a recent Virginia Supreme Court opinion involving a medical malpractice claim for breach of confidentiality.

Pierce v. Caday

A woman consulted her physician for advice and a prescription sedative, asking that the "highly confidential" nature of the conversation be respected. She later found that details of their discussion had been repeated by his employee to her coworkers. A suit followed, alleging that the doctor's failure to control his employee amounted to breach of an explicit contract of confidentiality. The trial court dismissed the suit, questioning both the form (a contract action) and the substance (an allegation of wrongful disclosure of information) of the woman's legal claim.

On appeal, the Supreme Court upheld the trial court, because the plaintiff had not complied with provisions of the malpractice act. It agreed that the claim was properly characterized as malpractice. The analysis of doctor/patient confidentiality that followed was instructive:

While the General Assembly has implicitly recognized the existence of a qualified physician-patient privilege in Virginia, the only explicit statutory pronouncement of the privilege is an evidentiary rule restricted to testimony in a civil action ... In the present case, the plaintiff seeks to fashion a cause of action for recovery in damages out of what has thus far been recognized in Virginia as merely a rule of evidence. (Pierce v. Caday, 244 Va.285, 422 S.E. 2d 371 (1992)).

Some states, the Court noted, had recognized wrongful disclosure of medical information as a valid tort claim; others had not. Because the plaintiff and defendant presumed that the claim was valid, the issue was not put to the Court, thus a decision on whether to judicially recognize such a cause of action was unnecessary. The Court could "assume without deciding" that such an action would be available. The Pierce case dramatized the absence of clear statutory protection in the Code of Virginia for medical and mental health confidentiality in contexts other than the courtroom.

Proposal for a New Law on Confidentiality

For three years, the Committee on the Needs of the Mentally Disabled of the Virginia Bar Association studied the problem of medical and mental health confidentiality in light of the Pierce case and the prescriptions of existing Virginia law. Following a review of laws in other states and consultation with lawyers and representatives of health professional associations, the Committee drafted a comprehensive bill that was introduced in 1996 and eventually adopted during the 1997 Session of the Virginia General Assembly (House Bill 2733). It went into effect July 1, 1997.

Structure of the Law

The law includes a comprehensive legislative statement on the subject of medical and mental health confidentiality in Virginia law. …

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