Virginia Supreme Court partially resurrects civil suit against Carilion

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By Neil Harvey, Roanoke Times – 11/3/2018

A patient whose civil suit against Carilion Clinic was dismissed in 2016 saw that result partially reversed by the Virginia Supreme Court this week.

Lindsey Parker of Ferrum claimed that in 2012, while she was a patient at a Carilion facility in Rocky Mount, two employees of the health care provider accessed and shared details of her medical history with someone she knew.

Parker’s suit, filed in Roanoke Circuit Court in 2015, alleged that Carilion was directly liable for not properly safeguarding her information, and that it was also vicariously liable for the employees’ alleged breach of their duty not to disclose.

She sought $1.5 million in compensatory damages and $350,000 in punitive damages.

At hearings in 2016, lawyers for Carilion argued that the two workers had acted outside the scope of their employment, which they said would preclude Parker’s complaint, and they contested the issue of direct liability because her claims did not rise from a corporate action.

Judge Chris Clemens sustained Carilion’s objections, but granted Parker a 21-day window to file an amended complaint. His order said that if she did not do that, the case would be dismissed with prejudice.

Parker did not amend her complaint, and it was dismissed. She appealed her case to the higher court, however — a filing that still fell within the longer deadline for appeals.

On Thursday, the Virginia Supreme Court issued a ruling on the appeal, affirming the circuit court decision with regard to direct liability.

On the issue of vicarious liability, however, the court determined that more consideration needed to be paid to the circumstances by which the employees accessed the information and their ultimate reasons for sharing it.

In the opinion, Justice D. Arthur Kelsey wrote that liability could not be established simply by showing the workers were “‘on the clock,’ using the employer’s property or on the employer’s premises at the time of the alleged tortious acts or omissions.”

“Instead, the employee must have committed the tort while actively engaged in a job-related service,” Kelsey wrote.

The opinion said that the employees’ motives behind the disclosures also were factors that needed to be examined more closely.

“Because none of these factual contests can be addressed at the pleading stage of this case, we reverse the circuit court’s order sustaining Carilion’s demurrer” to the claim of vicarious liability, the opinion said.

It’s expected that a mandate will now be issued, returning the case to Roanoke Circuit Court.

Steve Emmert, a Virginia Beach attorney who publishes a website devoted to court decisions, said that in light of the reversal, either party could now file a petition for rehearing, asking the justices to take another look at it.

If that occurs, he said, the process could take another two to three months.

“If there is no petition for rehearing, I would expect a mandate to come between two and a half to three weeks,” Emmert said, but added that once it’s back in circuit court, there is no set time frame during which the case must be tried.

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