                                                                                   FILED
No. 17-0643 – Barber v. Camden Clark Memorial Hospital                           May 31, 2018
                                                                                   released at 3:00 p.m.
                                                                               EDYTHE NASH GAISER, CLERK
WORKMAN, C. J., dissenting:                                                    SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA



                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).1 After being advised


       1
           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

                                               1

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.



              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


             occur sufficiently in advance of service of the subpoena to
             provide a reasonable opportunity for the patient/party to object
             to the request.

                                              2

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.


                                              3

              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

                                                4
              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.




                                               5

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
                                             6

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
                                        7

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, 2018.2



              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


       2
         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.

                                             8

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.3 Accordingly, I dissent.


       3
         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

                                               9

HIPAA preemption. Rather, it is based upon the wholesale inapplicability of the statute at
issue, as explained herein.
                                         10
