Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and 

Kinser, JJ., and Whiting, Senior Justice 

FAIRFAX HOSPITAL, BY AND THROUGH 

INOVA HEALTH SYSTEM HOSPITALS, INC. 

OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 962068 October 31, 1997 

PATRICIA CURTIS 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

David T. Stitt, Judge 

 I. 

 In this appeal we consider, among other things, whether 

a patient has a cause of action against a health care 

provider which voluntarily disseminated the patient's 

medical records to third parties without the patient's 

authorization. 

 II. 

 Seeking compensatory and punitive damages, Patricia 

Curtis filed a motion for judgment against INOVA Health 

System Foundation, Inc., Linda Beckett, and Nancy Perrelli 

and another motion for judgment against INOVA Health System 

Hospitals, Inc., which owns and operates Fairfax Hospital. 

Both motions for judgment were consolidated by order of the 

trial court. As relevant to this appeal, the plaintiff 

alleged in her motions for judgment that the defendants 

improperly disseminated her "private and confidential 

medical records and treatment information" to third persons. 

 The defendants asserted in a demurrer and plea in bar 

that: the plaintiff waived any privilege of confidentiality 

in her medical records by filing a medical malpractice 
claim; the plaintiff had not alleged a cause of action 

because she sought damages solely for emotional distress; 

and the plaintiff's claims were barred by the applicable 

statute of limitations. Overruling the demurrer, the court 

held that the plaintiff had a cause of action against the 

defendants for the unauthorized dissemination of her medical 

records without her consent. The court also denied the 

defendants' special plea of the statute of limitations. 

 The litigants stipulated the relevant facts underlying 

this dispute, but disagreed about the application of the 

law. Consequently, the litigants submitted factual 

statements with exhibits to the trial court and stipulated 

damages. The trial court entered a judgment on behalf of 

the plaintiff for the amount of the stipulated damages, 

$100,000, and the defendants appeal. 

 III. 

 Plaintiff received prenatal care at Fairfax Hospital 

beginning in July 1988. She was admitted to Fairfax 

Hospital in January 1989, and gave birth to a child, Jessie 

Curtis, on February 13, 1989. During the course of such 

treatment, she communicated personal information, including 

her medical history, to Fairfax Hospital's employees. 

Jessie later suffered a cardiopulmonary arrest and died. 

 In March 1990, Patricia Curtis, in her capacity as 

administrator of the estate of Jessie Curtis, filed a notice 

of claim against Fairfax Hospital System, Linda Beckett, and 
others, pursuant to the Virginia Medical Malpractice Act.1

 

Beckett was a nurse in the Hospital's neonatal intensive 

care unit at the time of Jessie's birth. 

 Following receipt of the notice of claim, Nancy 

Perrelli, INOVA Health System Foundation's Director of Legal 

Affairs, requested that the Hospital provide a complete copy 

of Patricia Curtis' medical records to Gerald R. Walsh, an 

attorney for the Hospital. Subsequently, Walsh directed 

"that a copy of the medical records be provided to Nurse 

Beckett." Perrelli complied with Walsh's directive. 

 The plaintiff's counsel learned during a discovery 

deposition of Beckett that she "had possession of, and had 

reviewed three to four days before the deposition, the 

medical records obtained from Perrelli, pursuant to the 

direction of defense counsel Walsh. Beckett brought a copy 

of the medical records to the deposition." The medical 

records contained very personal information about 

plaintiff's medical history before and after her pregnancy 

with Jessie Curtis. 

 IV. 

 A. 

 The defendants, relying upon Pierce v. Caday, 244 Va. 

285, 422 S.E.2d 371 (1992), argue that Virginia does not 

 

 1Patricia Curtis, administrator of the estate of Jessie 

Curtis, subsequently filed a motion for judgment against 

Fairfax Hospital and recovered a judgment which was affirmed 

by this Court. See Fairfax Hosp. Sys., Inc. v. Curtis, 249 

Va. 531, 457 S.E.2d 66 (1995). 
recognize a cause of action against a health care provider 

for the unauthorized disclosure of a patient's medical 

records. The plaintiff asserts, however, that she does have 

a cause of action against the defendants for the voluntary 

disclosure of her confidential medical records without her 

authorization. We agree with the plaintiff. 

 In Pierce v. Caday, a patient filed an action against 

her physician for the physician's alleged failure to assure 

nondisclosure of the patient's confidential information. 

The patient alleged that, even though her physician had 

assured her that certain matters she had discussed with him 

would remain confidential, the physician's employees had 

discussed the confidential information with others. The 

trial court dismissed the patient's action because, inter

alia, she had failed to give the physician written notice of 

the claim prior to filing suit, as required by former Code 

§ 8.01-581.2(A) of the Virginia Medical Malpractice Act, and 

her motion for judgment was insufficient in law because it 

failed to state a cause of action. 

 Declining to decide whether Virginia recognizes a cause 

of action against a health care provider for the wrongful 

disclosure of the patient's medical records and information 

because such issue was not dispositive of our decision in 

Pierce, we stated: 

 "Some courts in other jurisdictions . . . 

have recognized the nonstatutory right of a 

patient to recover damages from a physician for 

unauthorized disclosure of confidential 

communications concerning the patient; other 

courts have refused to create such a cause of 
action. . . . 

 In view of the General Assembly's repeated 

recognition of the privilege, we easily could 

adopt the view that a civil remedy lies in favor 

of a patient against a physician if the physician, 

or anyone under the physician's control, without 

the patient's consent makes an extra-judicial 

disclosure of confidential information obtained in 

the course of the physician-patient 

relationship. . . . 

 But it is unnecessary for us today to 

recognize expressly the existence of such a cause 

of action in Virginia in order to decide this 

case. Indeed, the issue has not been raised or 

debated, the parties presuming that such a cause 

of action is available. Therefore, we will assume 

without deciding that such an action will lie." 

244 Va. at 290-91, 422 S.E.2d at 373-74 (citations omitted). 

 In our jurisprudence, a health care provider owes a 

duty of reasonable care to the patient. Included within 

that duty is the health care provider's obligation 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. Indeed, confidentiality is an integral aspect 

of the relationship between a health care provider and a 

patient and, often, to give the health care provider the 

necessary information to provide proper treatment, the 

patient must reveal the most intimate aspects of his or her 

life to the health care provider during the course of 

treatment. 

 We hold that in the absence of a statutory command to 

the contrary, or absent a 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 authorization, 

and that violation of this duty gives rise to an action in 

tort. We observe that our holding today is consistent with 

decisions of most jurisdictions which have considered this 

issue. See Horne v. Patton, 287 So.2d 824, 830 (Ala. 1974); 

Alberts v. Devine, 479 N.E.2d 113, 119 (Mass.), cert.

denied, 474 U.S. 1013 (1985); Simonsen v. Swenson, 177 N.W. 

831, 832 (Neb. 1920); MacDonald v. Clinger, 446 N.Y.S.2d 

801, 804 (N.Y. App. Div. 1982); Humphers v. First Interstate 

Bank, 696 P.2d 527, 535 (Or. 1985); but see Quarles v. 

Sutherland, 389 S.W.2d 249, 252 (Tenn. 1965) (rejecting a 

cause of action in tort for health care provider's 

dissemination of patient's confidential information). 

 B. 

 The defendants suggest that even if the plaintiff has a 

cause of action for the wrongful disclosure of her medical 

records, she is not entitled to recover against them because 

she placed her medical condition "at issue" when she filed 

the notice of medical malpractice against the Hospital and 

others to recover damages for the death of her daughter. 

The plaintiff responds that she did not waive her right to 

the confidentiality of her medical records by preparing to 

file, and by later filing, an action against the Hospital 

and others in her capacity as administrator for her deceased 

daughter's estate. 

 Code § 8.01-399, in effect when the wrongful 

disclosures were made, and which we have described as 
"merely a rule of evidence," Pierce v. Caday, 244 Va. at 

290, 422 S.E.2d at 373, stated: 

 "Except at the request of, or with the 

consent of, the patient, no duly licensed 

practitioner of any branch of the healing arts 

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 if such 

information was necessary to enable him to furnish 

professional care to the patient; provided, 

however, that when the physical or mental 

condition of the patient is at issue in such 

action . . . no fact communicated to, or otherwise 

learned by, such practitioner in connection with 

such attendance, examination or treatment shall be 

privileged and disclosure may be required." 

(Emphasis added). 

 Code § 8.01-399, before amendment in 1993, permitted 

disclosure of information that a patient had conveyed to a 

health care provider when that patient's physical or mental 

condition was at issue in a civil action in certain 

circumstances. Additionally, the express words contained in 

the aforementioned version of Code § 8.01-399 state that 

"disclosure may be required." 

 This statute did not automatically compel disclosure of 

a patient's confidential medical information in all 

instances, but permitted a court, in the exercise of its 

discretion, to require disclosure of such information. We 

hold that if the patient did not manifestly place his or her 

medical condition at issue in a civil proceeding, then the 

statute required a determination by a judicial officer 

whether the patient's condition was at issue in the civil 

action before the health care provider was entitled to 
disseminate the patient's confidential communications to 

third persons. 

 The notice of claim that the plaintiff forwarded to the 

Hospital and others, in her capacity as administrator of her 

daughter's estate, simply did not manifestly place Curtis' 

medical condition at issue. Thus, before disseminating such 

information, the Hospital was required, in accordance with 

the aforementioned version of Code § 8.01-399, to obtain 

permission from either a court or the patient. The 

defendants concede that they unilaterally disseminated the 

plaintiff's confidential medical records to an attorney and 

a nurse without the requisite consent from the patient or 

determination from a judicial officer.2

 

 

 2Code § 8.01-399 has been subsequently amended and 

currently states in relevant part: 

 "A. Except at the request or with the consent 

of the patient, no duly licensed practitioner of 

any branch of the healing arts 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. 

 B. Notwithstanding subsection A, when 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. In addition, 

disclosure may be ordered when a court, in the 

exercise of sound discretion, deems it necessary to 

the proper administration of justice. However, no 

disclosure of facts communicated to, or otherwise 

learned by, such practitioner shall occur if the 

court determines, upon the request of the patient, 

that such facts are not relevant to the subject 

matter involved in the pending action or do not 

appear to be reasonably calculated to lead to the 
 C. 

 The defendants point out that during the subsequent 

medical malpractice panel proceedings, the chairman of the 

panel granted Beckett's motion to depose Curtis over her 

objections because "Patricia Curtis' health is at issue in 

this action, [and] the privilege may not be asserted." The 

defendants also note that in the civil action styled 

Patricia Curtis, as Administrator for the Estate of Jessie 

Curtis, et al. v. Fairfax Hospital Systems, Inc., the trial 

court ruled that the defendants were entitled to obtain 

Patricia Curtis' medical records from other health care 

providers covering a period of two years before and one year 

after the birth of the deceased infant. Continuing, the 

defendants assert that these rulings demonstrate that the 

 

discovery of admissible evidence. 

 . . . . 

 D. Neither a lawyer, nor anyone acting on the 

lawyer's behalf, shall obtain, in connection with 

pending or threatened litigation, information from 

a practitioner of any branch of the healing arts 

without the consent of the patient except through 

discovery pursuant to the Rules of the Court as 

herein provided. 

 . . . . 

 F. Nothing herein shall prevent a duly 

licensed practitioner of the healing arts from 

disclosing any information which he may have 

acquired in attending, examining or treating a 

patient in a professional capacity 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. 
plaintiff's medical condition was at issue and, hence, she 

had no privilege in the disseminated medical records. 

 The defendants' contentions are not persuasive. The 

defendants disseminated the plaintiff's medical records 

before the aforementioned rulings of the medical malpractice 

panel and the trial court in the subsequent civil action. 

And, as we have already noted, an independent judicial 

officer, not the Hospital or the director of legal affairs 

for the Hospital's parent company, was the appropriate 

person to make the determination whether Curtis' physical 

condition was at issue. 

 D. 

 The defendants contend that a health care provider who 

discloses medical confidences without the patient's consent 

should only be subjected to liability if such disclosure was 

made in a "non-judicial" context. The defendants say that 

"[i]n Pierce v. Caday, this Court carefully noted that if it 

were to recognize a theory of tort liability against a 

physician for the unauthorized disclosure of medical 

confidences, such an action would be limited to 'extrajudicial' disclosures." 

 As we have already demonstrated, the defendants' 

assertion is without merit because in Pierce we did not 

consider whether we would recognize a cause of action for 

the wrongful dissemination of a patient's medical 

information; nor did we articulate what limitations, if any, 

we would place upon such cause of action. Furthermore, the 
disclosure of the plaintiff's confidential information in 

this case did constitute an "extra-judicial disclosure." 

Here, the Hospital's director of legal affairs made a 

unilateral decision to disseminate the plaintiff's medical 

records to the Hospital's attorney and a nurse without a 

judicial determination that the plaintiff's physical 

condition was at issue and without the determination that 

disclosure of those records was required. 

 V. 

 The defendants assert that the trial court erred by 

ruling that the plaintiff was entitled to recover for 

emotional distress caused by the defendants' negligent acts. 

 We disagree. 

 As a general rule, in tort cases, absent accompanying 

physical harm or wanton and willful conduct, emotional 

distress damages are not recoverable. Carstensen v. 

Chrisland Corp., 247 Va. 433, 446, 442 S.E.2d 660, 668 

(1994)3

; Sea-Land Serv., Inc. v. O'Neal, 224 Va. 343, 354, 

297 S.E.2d 647, 653 (1982); Womack v. Eldridge, 215 Va. 338, 

340, 210 S.E.2d 145, 147 (1974). However, as we noted in 

 

 3Contrary to the defendants' assertions, the plaintiff's 

claim is unlike the claims we considered in Carstensen v. 

Chrisland Corp. There, the plaintiffs alleged, among other 

things, that they experienced humiliation, embarrassment, 

anger, frustration, and emotional distress because of a title 

insurance company's breach of its alleged fiduciary duty to 

them. Approving the trial court's judgment which dismissed 

the plaintiffs' claims, we held that the plaintiffs failed to 

identify an exception to the general rule which would have 

permitted them to recover emotional distress damages. 247 

Va. at 445-46, 442 S.E.2d at 667-68. 
Sea-Land, there are exceptions to this general rule: "[W]e 

have approved the recovery of damages for humiliation, 

embarrassment, and similar harm to feelings, although 

unaccompanied by actual physical injury, where a cause of 

action existed independently of such harm." 224 Va. at 354, 

297 S.E.2d at 653. 

 Here, we are of opinion that the plaintiff's cause of 

action falls within the exception to the general rule 

because her cause of action is independent of the 

humiliation, embarrassment, and harm to feelings that she 

suffered. Without question, a patient, whose intimate 

personal medical information is wrongfully disseminated to 

third parties, will experience some degree of humiliation, 

embarrassment, and hurt. Under these circumstances, we 

perceive no logical reason to refuse recovery of emotional 

distress damages. 

 VI. 

 The defendants argue that the trial court erred by 

failing to grant their motion for summary judgment which 

asserted that the plaintiff's claims are barred by the twoyear statute of limitations contained in Code § 8.01-

243(A).4

 The defendants state that the trial court 

"concluded that the claims were subject to a two-year 

 

 4Code § 8.01-243(A) states in relevant part: "Unless 

otherwise provided in this section or by other statute, every 

action for personal injuries, whatever the theory of recovery 

. . . shall be brought within two years after the cause of 

action accrues." 
limitations period which accrued on March 7, 1990. . . . 

Since the case at bar was not filed until February 4, 1994, 

Plaintiff's claims would be barred by limitations, but for 

the Court's conclusion that the filing of the wrongful death 

claim in November 1991 tolled the statute until the entry of 

a final order, which followed commencement of the instant 

actions." Responding, the plaintiff argues that the 

defendants are precluded from raising this issue on appeal 

because they failed to raise it in the trial court. We 

agree with the plaintiff. 

 As we have already stated, the plaintiff filed two 

separate motions for judgment against the defendant, and, 

the second motion, styled Patricia Curtis, Plaintiff v. 

Fairfax Hospital, by and through INOVA Health System 

Hospitals, Inc., contained a count captioned "Count I: 

Medical Malpractice." The plaintiff alleged in that count 

that the defendant, Fairfax Hospital, breached the 

applicable standard of care owed to her by disseminating her 

medical records without her authorization. 

 The defendants filed a motion for summary judgment 

raising the statute of limitations defense. The defendants 

stated in their motion: "[d]efendants, Inova Health System 

Foundation, Inc., Nancy Perrelli, and Fairfax Hospital by 

and through Inova Health System Hospitals, Inc., . . . move 

this Court . . . for entry of Summary Judgment with respect 

to Count III (Conspiracy to Commit Malpractice) and Count V 

(Punitive Damages)." The defendants' "Memorandum of Points 
and Authorities in Support of Motion for Summary Judgment" 

asserted that the plaintiff's claims of conspiracy were 

barred by the two-year statute of limitations contained in 

Code § 8.01-243(A). 

 The trial court's opinion letter, which explained the 

court's rationale for denying the defendants' motion for 

summary judgment states: "[t]he defendants move now for 

summary judgment as to Count III (conspiracy to commit 

malpractice) and Count V (punitive damages), in support of 

which they claim that the statute of limitations bars the 

action. . . ." The trial court's order, denying the motion 

for judgment, incorporated its opinion letter by reference. 

 The defendants filed a motion for reconsideration which 

stated: "[d]efendants, Inova Health System Foundation, 

Inc., Nancy Perrelli, and Fairfax Hospital . . . 

respectfully move this Court for reconsideration of its 

Order denying defendants' Motion for Summary Judgment with 

respect to Count III (Conspiracy to Commit Malpractice) and 

Count V (Punitive Damages)." 

 The defendants did not request, and the trial court did 

not make, a ruling on the issue whether the plaintiff's 

cause of action for negligence in Count I of her motion for 

judgment was barred by the statute of limitations. And, on 

the morning of trial, the plaintiff took a voluntary nonsuit of her purported claim of conspiracy to commit 

malpractice. The defendants' statute of limitations defense 

was limited to the plaintiff's claim of conspiracy to commit 
malpractice, and the statute of limitations defense was not 

asserted against the plaintiff's negligence claim. Hence, 

the defendants may not, for the first time on appeal, assert 

the statute of limitations defense to bar the plaintiff's 

negligence action. Rule 5:25. 

 VII. 

 In view of the foregoing, we will affirm the judgment 

of the trial court. 

Affirmed.