Petition for Writ of Certiorari — Smith v. Cook (No. 06-561)
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Supreme Qeut, uS
FILED
No. 06-561 £07 24 2008
INTHE OFFICE OF THE CLERK
SUPREME COURT OF THE UNITED STATES
BEVERLY SMITH,
Petitioner,
v.
DEANNA COOK AND ANGELA SMITH.
Respondents.
na an
ON PETITION FOR A WRIT OF CERTIORARI TO
THE VIRGINIA SUPREME COURT
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Thomas H. Roberts
Counsel of Record
Thomas H. Roberts & Associates, P.C.
105 South Ist Street
Richmond, Virginia 23219
Telephone: (804) 783-2000
Attorney for Petitioner
QUESTIONS PRESENTED
Whether an attorney is a state actor for purposes of an
action under 42 U.S.C. § 1983 for violation of the Due
Process Clause of the United States Constitution in the fact-
specific circumstance where the attorney issues and causes to
be served a subpoena of a nonparty’s medical records without
prior notice and opportunity to be heard in a state which does
not provide any remedy to the nonparty for the deprivation of
that property interest in privacy when the disclosure is made
in response to the subpoena.
Whether, in the context of the narrow facts of this
case, by failing to give the requisite notice to a person not a
party to the litigation that her medical records were being
commanded by subpoena to be produced in a state where
there is no deterrence created by a viable cause of action or
remedy against the health care provider for producing the
records without notice to the patient in response to the
subpoena, is the act of issuing the subpoena and causing it to
be served upon the health care provider without notice to the
patient sufficient to hold the attorney to have wielded the
compulsive power of the state to seize the patient’s property
without pre-deprivation notice or opportunity to be heard in
violation of the Due Process Clause of the United States
Constitution
ii
PARTIES TO THE PROCEEDINGS
Petitioner is Beverly Smith.
Respondents are Deanna Cook, an attorney in the
Commonwealth of Virginia and her client Angela Smith.
iil
TABLE OF CONTENTS
CR FOIE on sicicinedsinsinctttiontdenenstkideieliiasincliteciens i
Parties to the Proceeding.....c.sccccssoscsesscconnssevessessseconees li
OOO OE OE iiciicccccstonsicnnrsenmaniditictincienantaiae iil
Table of Cited Authorities SS Soe rise MASON ECT Ss eee iv
FRRES CE AOIOUN eivcscecesitvtccnivionnstieviaicirenanmsialion Vill
Petition for Writ Of Certior ari .......ccsccccssseccorsssereccsssens ]
BE. Sea OR IEE I ONO RL ELE Mec ENE Ue AE |
Statement OF FUTisGictwOM...0.00ss.ececceressecesvsevecesevevensvevove 2
Constitutional and Statutory Provisions Involved ......2
Seine OE CO ra sais cnciisiniatccispinsteceessdbciivicatiendictolabe 5
Reasons for Granting the Writ ...................:ccccceeeeeeeeees 7
I. ‘In rare and fact specific
circumstances, an attorney should be
_considered a “state actor” liable for
violation of due process when the
private attorney, acting on her client's
behalf and as an officer of the court,
invokes the machinery of the state to
effect an ex parte seizure of property
iV
without prior notice or an opportunity
i 7
The State Action in This Case ............... 10
The Applicable Tests ...... ssasahisgidiimniscitaidid 13
The Amended Motion for
Judgment Properly Alleged The
Necessary State Action to
Sustain an Actionable §1983
i SERECRLD BCE BO eee REDE NOE 24
a ne RA AIL ITE NTE MANET St SADR RO AAD 24
PE b iniicisscidisansaccinncsdaisisbiddiniiadcasiabenaneaiioaes 1A
Vv
TABLE OF AUTHORITIES
Cases
Adickes v. S. H. Kress & Co., 398 U.S. 144,
90 S. Ct. 1598; 26 L. Ed. 2d 142-(1970). .............0068 9,15
Angelico v. Lehigh Valley Hosp., Inc.,
194 F.3d 268 (3A CR. 1999).....c.scrcocsscesecesees $, 21,22, 23
PIG 1, TIO WE SIGE veccsecsscsneisvsincsvovaasenpiasevermievors 23
Atlas v. Stolberg, 694 So. 2d 772 (Fla. 4th DCA 1997) ......8
Barnard v. Young, 720 F.2d 1188 (10th Cir. 1983)............. 8
Burton v. Wilmington Parking Authority,
365 U.S. 715, 81 S. Ct. 856;
© Fic Fas Ae Bo GAD cccncicicastatacemeetasaans 10,14,15,16, 20
Crowe v. Lucas, 595 F.2d 985 (Sth Cir. 1979) ............000008 15
Dennis v. Sparks, 449 U.S. 24, 101 S. Ct. 183;
hic ee Fie Fe 0 itihchchstsinipcesdsascnccitgeitoaecin 14
Dyess v. La. State Univ. Bd. of Supervisors,
2005 U.S. Dist. LEXIS 18314 (D. La. 2005).......000...... 8
Ex parte Va., 100 U.S. 339,
BF Mig Sits OT CRA itv lacisinsidddelcemcienios bi, 32,58, 20
Fairfax Hospital v. Curtis,
254 Va. 437,492 S.E.2d 642 (1997)........scssrccssrcessrereeees 6
Flagg Bros., Inc. v. Brooks, 436 U.S. 149,
98 S. Ct. 1729; 56 L. Ed. 2d 185 (1978)........ ESET 9, 15
Griswold v. Connecticut, 381 U.S. 479,
OSS. Ce, 1678; 16 1. Ed. Zk SiG C196) cncccevcevecccversenss 9
Hahn v. Star Bank, 190 F.3d 708 (6th Cir. 1999)................ 8
Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278
AR He Ue Pe fe” TS | | Reememeneen es 12
Howerton v. Gabica, 708 F.2d 380 (9" Cir.1983). ........... 16
Jackson v. Metropolitan Edison Co.,
419 US. 345, 95 S. Ct. 449,
G2 EB ZO 477 CEST) scevenscerscsvessvncens 15, 16, 17, 20, 21
Jackson v. Pantazes, 810 F.2d 426 (4th Cir. 1987)........... a4
Jordan v. Fox, Rothschild, O'Brien & Frankel,
ee Ee Ce iy Fe i icsnhiticessscsnenvcceuentintnetceasiiinnicn 21
Lombard v. Louisiana, 373 U.S. 267, 83 S. Ct. 1122;
i. ee te CE incieincniicmnnortchtndacinesecsesenescnantacs 15
Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744,
73 L. Ed. 2d 482 (1982).9, 10, 13, 14, 15, 16, 18, 19, 20
Marsh v. Alabama, 326 U.S. 501,
66 S. Ct. 276; 90 L. Ed. 265 (1946).............cccsessees 15,19
Vil
Mills v. Criminal Dist. Court # 3,
rg wl ges ee, | eee nen iam enCets preemie mere 8
Monell v. New York City Dept. of Social Servs.,
436 U.S. 65856 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). 12
Monroe v. Pape, 365 U.S. 167
SiS, Ch. S732 FE, a FOIE cineesiseseieccsecesavsnt 12
Polk County v. Dodson, 454 U.S. 312,
70 L. Ed. 2d 509, 102 S. Ct. 445 (1981).................. 8, 13
Moose Lodge No. 107 v. Irvis, 497 U.S. 163,
92'S. Ct. 1965; 32 L. Ed. 2d 627 (1972). ............0:0c00000 21
Pfannsteil v. City of Marion,
PE Fe Ee Ce Gee CWE vticcecsntndccactanccnionstioniotunes 14
Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705,
a i ii ities tance onncdioancdcesacotnsinaaaiis 9
Screws v. United States, 325 U.S. 91,
6S S. Ce. 1631; BSL. Edd, 1495 (1946S)... 00.0. cccnccccccces.2ss 12
Sullivan v. Little Hunting Park, 396 U.S. 229,
: 90 S. Ct. 400; 24 L. Ed. 2d 386 (1969)... eee 15
Terry v. Adams, 345 U.S. 461,
73S. Ce, BOR: ST 1. BG. ENSZ CE9SS) iciccacecnceevsincines 15,19
United States v. Classic, 313 U.S. 299,
GIS. Ce. 1033; SS Li Bek. FSGS CIDA). cnncvcsitececcsecssscs 12
Vili
United States v. Price, 383 U.S. 787,
16 L. Ed. 24.267, 86S. Ct. £152: (1966) .......cccscercsceess 19
Williams v. United States, 341 U.S. 97, ;
FEB. CO. SIGs SS Le Bah, FIR IFS) vesoscssesersoranzesenion 12
Statute and Rules
United States Constitution, Amendment 14............... Zs Fa be
WUSC. 81) ck emanate eee 2
42 US.C. § 1983 ...crnrerecsencsrsreroversesesarssesesesseoenrorers in passim
VeCebeS 616 3,3
Va. Code § 32.1-127.1:03,
BS SUMCNGCS UR LODZ... vcccsescrsaceversseccnesenese Da Du Oe Io bey a
ix
TABLE OF APPENDICES
Appendix A — Virginia Supreme Court, Petition Denied .Al
Appendix B — Circuit Court for the City of Richmond,
IIE CIIOE vorseneccoreecoesccesiereeeneee ssesesceceeseeees A2
Appendix C —Circuit Court for the City of Richmond,
Failure to State a Cause of Action ...............0 A4
Appendix D — Amended State Complaint ...................... A8
Appendix E — Va. Code § 32.1-127.1:03 0... eee A27
PETITION FOR WRIT OF CERTIORARI
Brenda Smith (“Smith”) respectfully prays that a
writ of certiorari issue to review the judgment and opinion of
the Virginia Supreme Court entered in this proceeding on
July 26, 2006, in order to resolve the important issue
presented herein, that under certain very narrow factual
circumstances, a nonparty witness deprived of her property
interest in the privacy of her medical records without notice
or opportunity to be heard may obtain relief under 42 U.S.C.
§ 1983 against a private attorney who is a state actor when
issuing and causing to be served a subpoena commanding the
production of medical records in violation of the Due Process
Clause of the United States Constitution when those records
are produced and disseminated.
—+ - -4-- +--+ -- +--+ --+- -+--+-~-+4--+--+-
OPINIONS BELOW
The opinion of the Virginia Supreme Court that
gives rise to this petition is the order of the Virginia Supreme
Court denying Smith’s petition for appeal. It is reprinted in
Appendix A hereto at page Al. The order of the trial court,
the Circuit Court for the City of Richmond in the
Commonwealth of Virginia denying Smith a remedy for the
deprivation of her privacy of the medical information in her
medical records as a nonparty witness in prior litigation is set
forth in Appendix C at page A4. The order of the trial court
correcting its order of January 19, 2006 is set forth in
Appendix B at A3.
JURISDICTION _
On July 26, 2006, the Virginia Supreme Court
denied Smith’s petition for appeal of the January 19, 2006
order of the Circuit Court for the City of Richmond denying
Smith’s claim of a deprivation of her rights under the Due
Process Clause of the United States Constitution. Pursuant to
Supreme Court Rule 13(1) this petition has been filed within
90 days of the denial of her petition.
The jurisdiction of the Court is invoked pursuant to
28 U.S.C. § 1257
ee
—+4 — —- 4 — 4 - — - — - - - - -
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED IN THIS CASE
United States Constitution, Amendment XIV
Section |. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens
of the United States and of the state wherein they reside.
No state Shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any state deprive any person of
life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws.
* * * :
Section 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.
42. U.S.C. § 1983
Every person who under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be |
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, Suit in equity, or other proper
~proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in
such officer's judicial capacity, injunctive relief shall not
be granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the pv ~oses of
this section, any Act of Congress applicable exclusively
to the District of Columbia shall be considered to be a
statute of the District of Columbia.
Va. Code § 32.1-127.1:03, as amended in 2002
Appendix E
Va Code § 16.1-265. Subpoena; attorney-issued subpoena.
Upon application of a party and pursuant to the rules of
the Supreme Court of Virginia for the issuance of
subpoenas, the clerk of the court shall issue, and the court
—
on its own motion may issue, subpoenas requiring
attendance and testimony of witnesses and production of
records, documents or other tangible objects at any
hearing.
Subpoenas duces tecum for medical records shall be
subject to the provisions of §§ 8.01-413 and 32.1-
127.1:03 except that no separate fee shall be imposed. A
subpoena may also be issued in a civil proceeding by an
attorney-at-law who is an active member of the Virginia
State Bar at the time of issuance, as an officer of the
court. Any such subpoena shall be on a form approved by
the Committee on District Courts, signed by the attorney
as if a pleading and shall include the attorney's address. A
copy, together with the attorney's certificate of service
pursuant to Rule 1:12, shall be mailed or delivered to the
clerk's office of the court in which the case is pending on
the day of issuance by the attorney. The law governing
subpoenas issued by a clerk shall apply mutatis mutandis,
except that attorneys may not issue subpoenas in those
cases in which they may not issue a summons as provided
in § 8.01-407. When an attorney-at-law transmits one or -
more subpoenas or subpoenas duces tecum to a sheriff to
be served in his jurisdiction, the provisions in § 8.01-407
regarding such transmittals shall apply. A sheriff shall not
be required to serve an attorney-issued subpoena that is
not issued at least five business days prior to the date
production of evidence is required.
If the time for compliance with a subpoena issued by an
attorney is less than 14 days after service of the subpoena,
the person to whom it is directed may serve upon the
party issuing the subpoena a written objection setting
forth any grounds therefor. If objection is made, the party
on whose behalf the subpoena was issued and served
shall not be entitled to compliance, except pursuant to an
order of the court, but may, upon notice to the persen to
whom the subpoena was directed, move for an order to
compel compliance. Upon such timely motion, the court
may quash, modify or sustai _ the subpoena.
—+ — - +--+ - - +--+ - 4 - + ~ - 4 + - 4
STATEMENT OF THE CASE
Beverly Smith (“Smith”) filed suit in state court
against Angela Cook (“Cook”), her client Angela Smith and
others seeking redress pursuant to 42 U.S.C. § 1983 for
denial of due process in connection with the deprivation of
her privacy interest in the health care information contained
in her medical records, and the right to contest the disclosure
and dissemination of that information, interests protected by
both state statute and by the penumbra of the United States
Constitution.
Cook, a private attorney licensed by the
Commonwealth of Virginia, on behalf of her client Angela
Smith and as an officer of the court, pursuant to Va Code §
16.1-265 issued a subpoena to a health care provider for
Smith’s medical records in a custody case in which patient
Smith was not a party without providing the statutorily
required notice under Va. Code § 32.1-127.1:03.
In 2002, Va. Code § 32.1-127.1:03 provided in
pertinent part, “No party to an action shall request or cause
the issuance of a subpoena duces tecum for the medical
records of a nonparty witness unless a copy of the request for
the subpoena or a copy of the attorney-issued subpoena is
provided to the nonparty witness simultaneously with filing
the request or issuance of the attorney-issued subpoena.”
Additionally, the statute required that with a copy of the
subpoena, the nonparty witness was to receive “a statement
informing them of their rights and remedies....”
Cook did not send a copy of the subpoena to Smith as
required by statute and Smith did not receive the copy of the
attorney issued subpoena or the notice and statement of rights
and remedies required by law, prior to the deprivation of her
medical privacy. .
Wm
Once served and in response to the subpoena the
health care provider produced the records disclosing Smith’s
personal and confidential content and information in her
psychiatric medical records without her authorization,
resulting in the loss of her statutory right of privacy to the
content and information of her medical/health records and in
emotional and physical injuries.
While Virginia in Fairfax Hospital v. Curtis, 254 Va.
437,492 S.E.2d 642 (1997) recognized a cause of action
against medical care providers for unauthorized disclosure of
a patient’s health care information, the Virginia Court
determined that dis¢fosure of that information in response to
a subpoena is not unauthorized irrespective of the failure of
the attorney to provide the statutory notice and disclosures
and not actionable under state law.
The suit including the due process claim brought
under 42 U.S.C. § 1983 was dismissed on January 19, 2006
for failure to state a cause of action on the demurrer to the
pleadings filed by the defendant.
A petition for appeal was timely filed to the Virginia
Supreme Court. The Virginia Supreme Court denied the
petition for appeal on July 26, 2006.
This petition for certiorari is timely filed.
+ + 4 a 4 - - 4 -- + -
REASONS FOR GRANTING THE WRIT
I. In rare and fact specific circumstances, an
attorney should be considered a “state actor” liable
for violation of due process when the private attorney, |
acting on her client's behalf and as an officer of the
court, invokes the machinery of the state to effect an
ex parte seizure of property without prior notice or an
opportunity to be heard.
In most instances involving attorney issued subpoena
the party to whom the subpoena is directed and the parties to
the litigation receive notice of the issuance of the subpoena
and are able to be heard before any deprivation occurs.
Merely because the instances are rare in which an
attorney issuing a subpoena invokes the machinery of the
state to effectuate an ex parte seizure of property without
prior notice or opportunity to be heard does not justify a
blanket rule of law, removed from factual inquiry, that a
private attorney issuing a subpoena can never be a state actor.
A number of Federal Circuits and states have held otherwise.
See Hahn v. Star Bank, 190 F.3d 708, 717 (6th Cir. 1999)(“‘a
private attorney issuing a subpoena does not become a state
actor for the purposes of § 1983”) Barnard v. Young, 720
F.2d 1188, 1189 (10th Cir. 1983)(“Application of the Lugar
test does not change the vast weight of authority that private
attorneys, by virtue of being officers of the court, do not act
under color of state law within the meaning of section 1983.
Polk County v. Dodson, 454 U.S. 312, 318, 70 L. Ed. 2d 509,
102 S. Ct. 445 (1981). n2”) Angelico v. Lehigh Valley Hosp.,
Inc., 184 F.3d 268, 278 (3d Cir. 1999)(“an attorney does not
become a state actor simply by employing the state's
subpoena laws”) See also Atlas v. Stolberg, 694 So. 2d 772
(Fla. 4th DCA 1997)(“‘it is well settled that private lawyers
are not state actors for purposes of section 1983 liability”)
Dyess v. La. State Univ. Bd. of Supervisors, 2005 U.S. Dist.
LEXIS 18314 (D. La. 2005) (“This Court concurs with these
decisions and holds that a private attorney's issuance of a
subpoena does not make the attorney a state actor for
purposes of § 1983” and “the Fifth Circuit has not addressed
whether an attorney who issues a subpoena may fairly be said
to be a state actor, it has held that "private attorneys . . . are
not official state actors, and generally are not subject to suit
under section 1983." Mills v. Criminal Dist. Court # 3, 837
F.2d 677, 679 (Sth Cir. 1988)).
A claim upon which relief may be granted to Smith
against Cook under § 1983 must embody at least two
elements. Smith is first bound to show that she has been
deprived of a right "secured by the Constitution and the laws"
of the United States. Smith must secondly show that Cook
deprived her of this right acting "under color of any statute"
of the State of Virginia. It is clear that these two elements
denote two separate areas of inquiry. Flagg Bros., Inc. v.
Brooks, 436 U.S. 149, 155-156 (U.S. 1978) citing Adickes v.
S. H. Kress & Co., 398 U.S. 144, 150.(1970).
In order to rely on the Due Process Clause, a plaintiff
must have a protectible interest. Smith’s protectible interest
is her constitutional and statutory interest in medical privacy.
Virginia law recognizes plaintiff's rights of privacy in
Virginia Code § 32.1-127.1:03. Likewise, Smith has a
constitutional right to medical privacy. See eg. Roe v. Wade,
410 U.S. 113, 93 S. Ct. 705 (1973), Griswold v. Connecticut,
381 U.S. 479, 85 S. Ct. 1678 (1965) (marital privacy in
decisions of birth control). Defendant Cook deprived
plaintiff of her right to medical privacy under Virginia law
and her property interest in medical privacy without notice or
‘an opportunity to be heard in violation of Fourteenth
Amendment to the U.S. Constitution.
Because the Fourteenth Amendment is directed at the
States, it can be violated only by conduct that may be fairly
characterized as "state action." Lugar v. Edmondson Oil Co.,
457 U.S. 922, 923-924 (1982). Here, under applicable U. S.
Supreme Court precedent, the State’s express “deputization”
of attorney Cook to issue process, and the service of the
process on the health care provider caused the unlawful
release and disclosure of Smith’s private health/medical
information in the medical records as well as the right to
contest the disclosure of that information, property rights
granted to her by Virginia statute and protected by the Due
Process Clause of the Constitution. The claim against
defendant Cook thus concerns the relationship between the §
10
1983 requirement of action under color of state law and the
Fourteenth Amendment requirement of state action. /d.
The question of whether an individual acted “under
color of state law” and, therefore, whether the individual is
liable for the federal or constitutional injury under 42 U.S.C.
§ 1983, is inherently a mixed question of law and fact and
has been recognized by the U. S. Supreme Court as fact
specific. Lugar v. Edmondson Oil Co., 457 U.S. 922, 938-
939 (1982). It necessarily requires a sifting of the facts and
circumstances involving any alleged public-private action.
Burton yv. Wilmington Parking Authority, 365 U.S. 715, 722
(1961).
The “State Action” In this Case
The actions which caused the injury in this case
involve State-authorized and served legal process
commanding the production of the medical records of Smith
without prior notice to Smith or opportunity to be heard and
without any deterrence to health care providers from
complying with the subpoena’s command.
The force and compulsion of state power is behind an
attorney-issued subpoena. A subpoena is the order of an arm
of the state compelling the presence of a person under threat
of contempt. That the state traditionally grants litigants and
their attorneys the privilege of invoking the subpoena power
does not alter the fact that it is the state, not the litigant or his
attorney, which is compelling the attendance. The state could
not effectively provide a forum for the litigation of legal
disputes without power to compel the attendance of
witnesses. The fact that a subpoena issues in the name of the
il
state and the fact that a subpoena implements the general
state interest of providing a forum for litigation amply
demonstrate that the issuance of a subpoena is not merely a
private act. The litigant or attorney who invokes the
subpoena power acts for the state when commanding
production of documents. Because she is engaged in
litigation in a state forum, she has been entrusted by the state
with significant state power. The significance of a private
party acting for and in the name of the State is not a new
concept. Virginia has provided the United States Supreme
Court with a number of opportunities that explain the reach
of the Constitution in restraining violations made under color
of state law which include Ex parte Va., 100 U.S. 339, 347
(U.S. 1880). In that case, this Court addressed the restraint of
the Fourteenth Amendment against “one who acts in the
name and for the State and is clothed with the State’s power.”
The constitutional provision, therefore, must mean
that no agency of the State, or of the officers or agents by
whom its powers are exerted, shall deny to any person within
its jurisdiction the equal protection of the laws. Whoever, by
virtue of public position under a State government, deprives
another of property, life, or liberty, without due process of
law, or denies or takes away the equal protection of the laws,
violates the constitutional inhibition; and as he acts in the
name and for the State, and is clothed with the State's power,
his act is that of the State. This must be so, or the
constitutional prohibition has no meaning. Then the State has
clothed one of its agents with power to annul or to evade it.
But the Constitutional Amendment was ordained for a
purpose. It was to secure equal rights to all persons, and, to
insure to all persons the enjoyment of such rights, power was
12
given to Congress to enforce its provisions by appropriate
legislation. Such legislation must act upon persons, not upon
the abstract thing denominated a State, but upon the persons
who are the agents of the State in the denial of the rights
which were intended to be secured. Ex parte Va., 100 U.S.
339, 347 (1880). There can be no doubt at least since Ex
parte Virginia, 100 U.S. 339, 346-347, that Congress has the
power to enforce provisions of the Fourteenth Amendment
against those who carry a badge of authority of a State and
represent it in some capacity, whether they act in accordance
with their authority or misuse it. See Home Tel. & Tel. Co. v.
Los Angeles, 227 U.S. 278, 287-296, 33 S. Ct. 312 (1913);
Monroe v. Pape, 365 U.S. 167, 171-172, 81 S. Ct. 473, 497
(1961) partially overruled by Monell v. New York City Dept.
of Social Servs., 436 U.S. 658, 695-701, 56 L. Ed. 2d 611, 98
S. Ct. 2018 (1978) (municipalities are not immune from §
1983 actions)
Congress, in enacting § 1983 meant to give a remedy
to parties deprived of constitutional rights, privileges and
immunities by an official's abuse of his position. Cf Williams
v. United States, 341 U.S. 97, 71 S. Ct. 576 (1951); Screws v.
United States, 325 U.S. 91, 65 S. Ct. 1031 (1945); United
States v. Classic, 313 U.S. 299, 61 S. Ct. 1031 (1941).
Monroe v. Pape, 365 U.S. at 172, 81 U.S. at 497.
In the present case, Cook caused an attorney-issued
subpoena to be served upon Dr. Kryzanowski for the
production of a non-party’s private health care records
without providing the statutorily mandated notice under
Virginia Code § 32.1-127.1:03 to the non-party, Smith. The
content of those records was thereafter indiscriminately
disclosed to the attorneys and litigants in a state domestic
13
proceeding and Smith was harmed suffering humiliation,
emotional and physical injuries. Smith was damaged by the
loss of her right to have a judicial officer determine whether
there was a basis for disseminating her confidential patient
information and communications with her doctor to third
persons before the dissemination. Smith was required to
obtain medical treatment and incurred medical bills
associated with the disclosure. AMFJ § 66 — 73
The Applicable Tests
As previously indicated, the question of whether an
individual acted “under color of state law” and, therefore, P
whether she is a “state actor” is fact specific. The focus is
not whether the person is a state employee.’ Although in
' See, e.g., Polk County v. Dodson, 454 U.S. 312, 318, 70 L.
Ed. 2d 509, 102 S. Ct. 445 (1981), where the Supreme Court
held that a public defender's actions, when performing a
lawyer's traditional functions as counsel in a state criminal
proceeding, would not support a § 1983 suit. However, the
Court specifically stated that it was not necessary in that case
to consider whether that requirement was identical to the
"state action" requirement of the Fourteenth Amendment
because the public defender, although a state employee, in
the day-to-day defense of his client, acted in a role
adversarial to the State. Accordingly, on the facts of that
case, it was "peculiarly difficult" to detect any action of the
State! 454 U.S., at 320. Lugar v. Edmondson Oil Co., 457
U.S. 922, 935 (U.S. 1982). In the present case, however,
attorney Cook was not in an adversarial role to the State, but
was acting as an arm of the state using the expressly granted
power and agency of the State to command by legal process
14
most instances being employed by the state will suffice due
to the duties of the employee, but as will be explained below,
the reverse is also true, one need not be an employee of the
state to act under color of state law. In Lugar v. Edmondson
Oil Co., 457 U.S. 922, 938-939 (1982), the "complaint
alleged that in attaching his property respondents had acted
jointly with the State to deprive him of his property without
due process of law." To sustain the claim, the Supreme
Court required that conduct alleging deprivation of a Federal
right must be "fairly attributable" to the State. Two elements
establish "fair attribution," elements which are present in the
case at bar: (1) the deprivation must be caused, in part, by
either the exercise of some right or privilege created by the
State or by a person for whom the State is responsible, and
(2) the party charged with the deprivation must be said to be
a state actor. The latter is satisfied not only if he is a state
official, but also if he has acted together with or has obtained
significant aid from state officials, or because his conduct is
otherwise chargeable to the State. Id. at 937. \n interpreting
this standard, courts have made clear that "both parts of the
Lugar test are satisfied where the nature of the relationship
between the state and private actor is one of interdependence
or symbiosis," i.e. an "arrangement that confers on each a
variety of mutual benefits." Jackson v. Pantazes, 810 F.2d
426,430 (4th Cir. 1987), citing Burton v. Wilmington Parking
Authority; see also Dennis v. Sparks, 449 U.S. 24, 27-29
(1980); Pfannsteil v. City of Marion, 918 F.2d 1178, 1187
(Sth Cir. 1990); Crowe v. Lucas, 595 F.2d 985 (Sth Cir.
the release of Smith’s private medical information, albeit
without affording Smith the due process to which she was
entitled.
15
1979).? In keeping with the fact specific nature of “state
action,” the Lugar Court noted a variety of tests under which
state-action may be established:
[T]he Court has articulated a number of different
factors or tests in different contexts: e. g., the "public
function" test, see Terry v. Adams, 345 U.S. 461
(1953); Marsh v. Alabama, 326 U.S. 501 (1946); the
"state compulsion" test, see Adickes v. S. H. Kress &
Co., 398 U.S., at 170; the "nexus" test, see Jackson
v. Metropolitan Edison Co., 419 U.S. 345 (1974);
Burton v. Wilmington Parking Authority, 365 U.S.
715 (1961); and, in the case of prejudgment ‘
attachments, a "joint action test," Flagg Brothers,
436 U.S., at 157. n21 Whether these different tests are
actually different in operation or simply different
5
—
Numerous other Supreme Court cases have
recognized that private action is fairly attributable to the
state. See Terry v. Adams, 345 U.S. 461 (1953) (Political
activities of the private, racist Jaybird Association deprives
citizens of voting rights because of their color); Burton v.
Wilmington Parking Authority, 365 U.S. at 725 ("By its
inaction, the Authority, and through it the state, has not only
made itself a party to the refusal of service, but has elected to
place its power, property and prestige behind the admitted
discrimination"); Lombard v. Louisiana, 373 U.S. 267 (1963)
(Action by private lunch counter owner constituted state
action despite absence of state ordinance requiring
discriminatory conduct); Sullivan v. Little Hunting Park, 396
U.S. 229 (1969) (Actions by private homeowners association
under restrictive covenants enforcible by state process
constituted state action).
16
ways of characterizing the necessarily fact-bound
inquiry that confronts the Court in such a situation
need not be resolved here. See Burton, supra, at 722
("Only by sifting facts and weighing circumstances
can the nonobvious involvement of the State in
private conduct be attributed its true significance”).
Lugar v. Edmondson Oil Co., 457 U.S. at 938-939
(1982)(emphasis added).
Using the public function test, the Supreme Court has
found state action present "in the exercise by a private entity
of powers traditionally exclusively reserved to the State.”
Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352
(1974). In the present case, the subpoena power is a power
traditionally exclusively reserved to the state. By statute that
power is exercised by an officer of the court, the attorney
Cook. The public function test is satisfied. The joint action
test for state action is met where private persons are "willful
participantf{s] in joint activity with the State or its agents" that
effects a constitutional deprivation. Howerton v. Gabica, 708
F.2d 380, 383 (CA9 1983).
Attorney Cook, although a private attorney and acting
on behalf of her client, a private party, willfully participate in
the joint activity with the State and specifically the judiciary
by compelling production of documents by means of a
subpoena duces tecum. The joint action test is satisfied.
Finally, under the nexus test, the court must consider whether
there is a "sufficiently close nexus between the State and the
challenged action of the regulated entity so that the action of
the latter may be fairly treated as that of the State itself."
17
Jackson, 419 U.S. at 351. Here it is important to note that the
power to is.ue the subpoena duces tecum is not given to the
public at large, but is given to attorneys, a profession
regulated by the State and ultimately the court. The
subpoena on its face reeks of the authority of the State. “To
the person summoned: You are commanded to make
available the documents and tangible things designated and
described below....” It is hard to imagine a closer nexus to
the state, then the wielding of the judiciaries power to
command the production of the documents. The nexus test is
satisfied.
Instigating state court litigation does not make an
attorney a state actor, due to the fact that as this court and all-
attorneys know, instigating litigation does nothing to take
property from a person. Most of the actions conducted by
attorneys in representing private parties before the courts of
the Commonwealth of Virginia may not be attributed to the
state and are therefore not state action. However, on the
specific facts of this case, the question is whether the
attorney, armed with the subpoena power has been clothed to
act in the name and for the State, by virtue of the statutory
authority and power expressly granted to the attorney as an
officer of the court to issue a subpoena for documents
commanding under threat of legal sanction the production of
those documents without affording to a non-party the notice
that their property interests are about to be taken and without
any deterrence or liability of the physician to determine
whether the patient was given notice of the subpoena.
There is no question but that Beverly Smith's
property interest in the privacy of her health records was
taken from her without notice or opportunity to be heard. In
18
this regard, she was “deprived .. . of life, liberty, or property,
without due process of law” by persons who were “the agents
of the State in the denial of the rights which were intended to
be secured.” Ex Parte Virginia, supra, 100 U.S. at 347. In
issuing the subpoena, Cook, was not merely engaging in
private practice of law on behalf of her private client—she
was also acting as the agent of the State, ordering the
production of the documents and with it the property of
Beverly Smith, the confidential health information. The
actions of issuing and causing to be served the process, these
action are chargeable as “State actions” and Cook is liable for
the violations of Jaw and injury that arise from her authorized
but improper actions.
In Lugar v. Edmonson Oil Co., it was the joint action
of the creditor with the clerk and the Sheriff that caused the
taking, satisfying the “joint action test.” See, Lugar v.
Edmondson Oil Co., 457 U.S. 922, 939, 102 S. Ct. at 2755
n.21. In Lugar, it was the pre-judgment taking, accomplished
with the assistance of the sheriff, that created an actionable
constitutional violation. In that case, a lessee-operator of a
truckstop in Virginia was indebted to his supplier, an oil
company. Lugar, 457 U.S. at 924. The supplier sued on the
debt and sought prejudgment attachment of the lessee’s
property. /d. Under Virginia law, the prejudgment attachment
procedure required only that the creditor allege in an ex parte
petition a belief that the debtor. was disposing of or might
dispose of his property in order to defeat his creditors. /d.
Acting upon the petition of the supplier, the clerk of the state
court issued a writ of attachment, which was then executed
by the county sheriff, thereby sequestering lessee's property.
Id. The Supreme Court held that where a state has created a
procedure whereby state officials, acting on the ex parte
19
petition of a private party, may attach disputed property, state
action exists. /d. at 941-42.
“Private persons, jointly engaged with state officials
in the prohibited action, are acting "under color" of
law for purposes of the statute. To act "under color"
of law doés not require that the accused be an officer
of the State. It is enough that he is a willful
participant in joint activity with the State or its
agents,"”
Lugar v. Edmondson Oil Co., 457 U.S. 922, 941 (US.,
1982), quoting United States v. Price, 383 U.S., at 794. The
U.S. Supreme Court has “consistently held that a private
party's joint participation with state officials in the seizure of
disputed property is sufficient to characterize that party as a
‘state actor’ for purposes of the Fourteenth Amendment.”
Lugar v. Edmondson Oil Co., 457 U.S. 922, 941 (U.S..,
1982). 1
In the present case, the taking of Smith’s privacy was
accomplished by virtue of Cook’s joint role both as private
advocate and also as an officer of the Court authorized by
statute to issue the subpoena for the documents, satisfying the
both the “joint action test” and the “public function test.”
Lugar at 938-39 citing Terry v. Adams, 345 U.S. 461 (1953),
a case involving a political parties exclusion of persons based
upon race and Marsh v. Alabama, 326 U.S. 501 (1946), a
case involving a corporation owned town’s prohibition on
distribution of literature. In both cases, the traditional role of
government in voting or management of a town caused the
Court to consider the public function rather than the fact that
the political party and corporation were private.
Similarly, Cook, by issuing the subpoena, fulfilled the
role of the court which traditionally issued orders for the
production of documents. Under the facts of this case, where
Beverly Smith was denied the statutory notice and
opportunity to be heard, it is even more important to cause
the legislation to act upon persons and not the abstract thing
denominated a State, but upon persons who are the agents of
the State in the denial of the rights which were intended to be
secured. Ex parte Va., 100 U.S. 339, 347 (U.S. 1880).
Additionally, holding Cook to be acting under of
color of state law under the circumstances of this case is
required by the "nexus" test. Lugar, at 938-39 citing
Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974)
and Burton v. Wilmington Parking Authority, 365 U.S. 715
(1961). In this case, the authority to issue subpoenas by
attorneys is given, and therefore the proscriptions of the
— Fourteenth Amendment must be complied with by the
attorney as certainly as though the proscription was written
into the statute authorizing the attorney to issue the subpoena,
as in fact itis. In Burton, a case involving a private
restaurant leasing space from a public facility, the Court
stated, “what we hold today is that when a State leases public
property in the manner and for the purpose shown to have
been the case here, the proscriptions of the Fourteenth
Amendment must be complied with by the lessee as certainly
as though they were binding covenants written into the
agreement itself.” Burton v. Wilmington Parking Authority,
365 U.S. 715, 726 (U.S. 1961). The Court reiterated the
detailed inquiry necessary in deciding these cases, stating
“But the inquiry must be whether there is a sufficiently close
nexus between the State and the challenged action of the
21
regulated entity so that the action of the latter may be fairly
treated as that of the State itself. Moose Lodge No. 107,
supra, at 176. The true nature of the State's involvement may
not be immediately obvious, and detailed inquiry may be
required in order to determine whether the test is met. Burton
v. Wilmington Parking Authority, supra.” Jackson v.
Metropolitan Edison Co., 419 U.S. 345, 351 (U.S. 1974)
(finding no state action in a regulated enterprise).
The Third Circuit in Angelico recognized the
necessity of a fact specific inquiry hedging its ruling with the
term “simply” and cited approvingly from Jordan v. Fox,
Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1264 (3d Cir.
1994), that “a
a private individual who enlists the compulsive powers
of the state to seize property by executing on a
judgment without pre-deprivation notice or hearing acts
under color of law and so may be held liable under
section 1983 if his acts cause a state official to use the
state's power of legal compulsion to deprive another of
property.
Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 278 (3d
Cir. 1999) citing Jordan v. Fox, Rothschild, O'Brien &
Frankel, 20 F.3d at 1267.
Private attorneys, acting on their client's behalf, who
invoke the machinery of the state to effect an ex parte seizure
of property without notice or opportunity to be heard should
be found to be state actors under § 1983.
22
The specific legal and factual inquiry must focus on
the compulsive power of the state to seize property without
pre-deprivation notice or an opportunity to be heard. In the
context of the narrow facts of this case, the inquiry is whether
by failing to give the requisite notice to a person not a party
to the litigation that her medical records were being -
commanded by subpoena to be produced where there is no
deterrence created by a viable cause of action or remedy
against the health care provider for producing the records
without notice to the patient in response to the subpoena, is
the act of issuing the subpoena and causing it to be served
upon the health care provider without notice to the patient
sufficient to hold the attorney to have wielded the compulsive
power of the state to seize the patient’s property without pre-
deprivation notice or opportunity to be heard in violation of
the Due Process Clause of the United States Constitution.
In Angelico, the Third Circuit focused on the
distinction between the potential for state involvement and
actual state involvement. Angelico v. Lehigh Valley Hosp,,
Inc., 184 F.3d 268, 278 (3d Cir. 1999). The court approved
of the lower court’s analysis which in pertinent part provided:
Although plaintiff notes that there are potential lega!
consequences attached to failure to obey a subpoena
which might ultimately involve invoking the
assistance of state officials, such possibility serves
only to highlight the difference between resorting to
an available state procedufe and actually using state
officials to enforce or carry out that procedure. The
potential for involving the coercive power of the state
likewise exists when a judgment by confession is
entered, yet .. . a private party is not converted into a
23
_ State actor as long as the assistance of state officials
remains merely a potential threat. It is only when, and
if, such potential is realized that a private party may
be converted into a state actor for purposes of
satisfying the state action element of a § 1983 claim.
Angelico I, 1996 WL 524112, at 2. =.
The Third Circuit found the analysis sound and
consistent with the Supreme Court's analysis in Lugar,
concluding “We hold, therefore, that an attorney does not
become a state actor simply by employing the state's
subpoena laws.” Angelico v. Lehigh Valley Hosp., Inc., 184
F.3d 268, 278 (3d Cir. 1999).
In Angelico, the defendants were lawyers who were
retained to obtain and execute a confessed judgment in a rent
dispute-
In the present case, where the state does not provide
any deterrence to health care providers from producing the
health care records in response to the subpoena by denying
any cause of action against them coupled with the attorney’s
failure to provide any pre-deprivation notice to the patient,
the command of the state authorized subpoena is itself the
compulsive power of the state, the machinery of the state to
effect an ex parte seizure of property upon which the private
attorney can be found to be a state actor under § 1983 and
liable for failing to provide notice and opportunity to be
heard.
24
The Amended Motion for Judgment Properly
Alleged The Necessary State Action to Sustain an
Actionable §1983 Claim
Under the facts alleged in the Amended Motion for
Judgment, defendant Cook, acting under color of state law,
deprived Beverly Smith not only of the confidential mental
health information, but also her right to notice of the
subpoena to enable her to move to quash. Cook acted under
color of state law. A9-A13 (Ff 7, 8, 9, 10, 11, 16, 19.) Smith
had a property right to the content of her medical record and
the privacy of that content. Va. Code § 32.1-127.1:03. Al4
(4 23 & 25). As an officer of the Court, and pursuant to state
statute, Cook acting for Angela Smith caused the loss of that
property right without notice or an opportunity to be heard in
violation of due process under the Fourteenth Amendment to
the United States Constitution. A14-A16 (FJ 22 — 37).
Beverly Smith was damaged as a proximate result. A15-A18
(4 36 & 37).
Upon de novo review, defendant Cook’s assertion on
demurrer that Smith failed to state a cause of action under 42
U.S.C. § 1983 should therefore be overruled and denied and
the case remanded to Virginia for trial consistent with this
Court’s ruling.
ee ee ene er en ee ee oe oe oe
CONCLUSION
For the foregoing reasons, the petition for writ of
certiorari should be granted.
25
Respectfully submitted,
Thomas H. Roberts, Esquire
Counsel of Record
Thomas H. Roberts & Associates, P.C.
105 South Ist Street
Richmond, Virginia 23219
Telephone: (804) 783-2000
Facsimile: (804) 783-2105 -
Attorney for Petitioner
APPENDIX A
OPINION OF THE VIRGINIA SUPREME COURT
DATED AND FILED JULY 26, 2006
ee ee ee ee ee ee ee ee ee ee
VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond on Wednesday the 26th
day of July 2006.
Beverly Smith, Appellant,
against Record No. 060761
Circuit Court No. 760CL04S01780-00/06-697
Leslie J. Kryzanowski, et al., Appellees.
From the Circuit Court of the City of Richmond
Upon review of the record in this case and
consideration of the argument submitted in support of and in
opposition to the granting of an appeal, the Court is of
opinion there is no reversible error in the judgment
complained of. Accordingly, the Court refuses the petition
for appeal.
A 2
APPENDIX B
OPINION OF THE CIRCUIT COURT FOR THE CITY OF
RICHMOND, COMMONWEALTH OF VIRGINIA DATED
AND FILED JUNE 19, 2006
~ 4 4-4 4 Ht -
VIRGINIA:
IN THE CIRCUIT COURT FOR THE CITY OF
RICHMOND
BEVERLY SMITH,
Plaintiff
Vv. CASE NO. 760CL04201780-00
LESLIE J. KRYZANOWSKTJ, et al.
Defendants. .
~ ORDER CORRECTING
CLERICAL MISTAKES AND ERRORS ARISING
FROM OVERSIGHT
Upon the motion to correct the order of 1/19/06, and
in keeping with the Court’s opinion as set forth in its letter of
January 11, 2006 and incorporated in said order, it is
ADJUDGED ORDERED and DECREED that the last
paragraph of page 2 of the order dated 1/19/2006 is corrected
to read
“IT FURTHER APPEARING that Plaintiff's Motion
for Judgment and First Amended Motion for Judgment were “
filed by Plaintiff and her counsel, Thomas H. Roberts,
Esquire and are NOT in violation of Virginia Code Ann §
A 3
8.01-271.1 and that the Plaintiff's claim under 42 U.S.C. §
1983 was NOT unreasonable, frivolous, meritless and
vexatious so as to award costs and attorneys fees under 42
U.S.C. § 1988, it is hereby”
The endorsements of counsel are dispensed with in
the discretion of the court pursuant to Rule 1:13.
A4
APPENDIX C
OPINION OF THE CIRCUIT COURT FOR THE CITY OF
RICHMOND, COMMONWEALTH OF VIRGINIA DATED
AND FILED JANUARY 19, 2006
-+-—-+--+--+4+--+--+-—+--+#+ - +--+--+4--+-
VIRGINIA:
IN THE CIRCUIT COURT FOR THE CITY OF
RICHMOND
JOHN MARSHALL COURTS BUILDING
BEVERLY SMITH
Plaintiff,
V. Case No. 760CL04S01780-00/06-697
LESLIE J. KRYZANOWSKI, et al.,
Defendants.
ORDER -
THIS MATTER CAME TO BE HEARD upon the
Motions to Reconsider this Court's overruling of the
Demurrers of Defendants Deanna Cook ("Cook") and Angela
Smith to Count Il (Negligence) of the First Amended Motion
for Judgment ("AM/J") filed by Plaintiff Beverly Smith, and
upon the alternative Motions for Summary Judgment file by
Cook and Angela Smith seeking the dismissal of the same
Count II, and upon Plaintiffs response thereto, and
THIS MATTER CAME TO BE HEARD upon the
Demurrer to Count III (Medical Malpractice) filed by
A 5
Defendant Leslie J. Kryzanowski, M.D. ("Dr.
Kryzanowski"), and upon Plaintiffs response thereto, and
THIS MATTER CAME TO BE HEARD upon the
Motions for Sanctions filed by Defendants Deanna Cook and
Angela Smith, and
IT APPEARING that by previous letter opinion dated
June 2, 2005, and by subsequent Order dated June 27, 2005,
both of which are incorporated herein by reference, this
Court sustained the demurrers of the Defendants as to all
counts of Plaintiff's Motion for Judgment, with leave to
amend, and
IT FURTHER APPEARING that Plaintiff thereupon
filed her AMJ, to which the Defendants filed their demurrers
and other responsive pleadings, and
IT FURTHER APPEARING that following oral
argument on the Defendants’ demurrers, this court issued its
letter opinion dated October 17, 2005, which is incorporated
herein by reference, sustaining the demurrers of the
Defendants as to Count I of Plaintiffs AMJ without leave to
amend, sustaining the demurrer of Dr. Kryzanowski as to
Count II of Plaintiffs AMJ without leave to amend,
overruling the demurrer of Cook and Angela Smith as to
Count II, and overruling the demurrer of Dr. Kryzanowski as
to Count III, and
IT FURTHER APPEARING that the Defendants
thereupon filed their further dispositive pleadings referenced
in the first two paragraphs above, and oral argument was held
on November 15, 2005, and
A 6
IT FURTHER APPEARING that Plaintiff thereupon
filed her motion for leave to file a Second Amended Motion
for Judgment, and
IT FURTHER APPEARING for the reasons stated in
this Court's letter opinion dated November 22, 2005, which is
incorporated herein by reference, that the Demurrers of Cook
and Angela Smith as to Count LI of Plaintiffs AMJ should be
sustained, without further leave to amend, and
IT FURTHER APPEARING for the reasons stated in
this Court's letter opinion dated November 22,2005, that Dr.
Kryzanowski's Demurrer to Count III of Plaintiffs AMJ
should be sustained, without further leave to amend, and
IT FURTHER APPEARING that Plaintiffs Motion for
Judgment and First Amended Motion for Judgment were
filed by Plaintiff and her counsel, Thomas H. Roberts,
Esquire in violation of Virginia Code Ann. § 8.01-271.1, that
such pleadings were not well grounded in fact or warranted
by existing law or a good faith argument for the extension,
modification, or reversal of existing law, and were interposed
for an improper purpose to harass or to use unnecessary
delay and needless increase in the cost of litigation, and that
the conduct of Plaintiff and Plaintiff's counsel in the
prosecution of this case was otherwise sanctionable under
Code Section 8.01-271.1, and that the filing of Plaintiff's
claim under 42 U.S.C. § 1983 was unreasonable, frivolous,
meritless and vexation, so as to warrant an award of costs and
attorneys’ fees to Cook and Angela Smith pursuant to 42
D.S.C. § 1988, it is hereby
ORDERED that the Demurrers of Defendants Deanna
Cook and Angela Smith to Count II of Plaintiff's AMJ are
A7
sustained, and Count II is dismissed as to such Defendants
with prejudice and without leave to amend, and it is hereby
ORDERED that the Demurrer of Defendant Dr.
Kryzanowski to Count III of Plaintiff's AMJ is sustained and
Count III is dismissed as to such Defendant with prejudice
and without leave to amend, and it is herby_
ORDERED that Plaintiff's motion for leave to file her
Second Amend Motion for Judgment is denied, and it is
hereby
ORDRED that insofar as no Counts remain pending
as to any Defendant, this cause is hereby dismissed with
prejudice as to all Defendants, and it is herby
ORDERED that for the reasons stated in the court's
letter dated January 11, 2006, defendants Deanna Cook and
Angela Smith's Motion for Sanctions is Denied.
Plaintiff's exceptions are noted.
The endorsements of counsel are waived pursuant to
Rule 1:13.
And nothing further remaining to be done herein, it is
ORDERED that his matter is stricken from the docket and
placed among the ended causes of this court.
It is so ORDERED.
A $
APPENDIX D
AMENDED MOTION FOR JUDGMENT IN THE
CIRCUIT COURT FOR THE CITY OF RICHMOND,
COMMONWEALTH OF VIRGINIA DATED AND FILED
JUNE 27, 2005.
~+4--4--+4--4--+4--+4--+4--+4--+--+--+--+-
VIRGINIA:
IN THE CIRCUIT COURT FOR THE CITY OF
RICHMOND
BEVERLY SMITH,
Plaintiff,
vs. Case No. 760CL04S01780-00
LESLIE J. KRYZANOWSKI,
and
ANGELA SMITH,
and
DEANNA COOK,
Defendants.
FIRST AMENDED
Motion for Judgment
Comes now the plaintiff, by counsel, and for her first
amended motion for judgment, moves for judgment jointly
and severally against defendants LESLIE J.
KRYZANOWSKI, ANGELA SMITH, and DEANNA
COOK on the grounds and in the amount shown below:
1. Plaintiff Beverly Smith is a citizen of Virginia and the
United States and is a resident of Goochland, Virginia.
A9
2. Defendant Leslie Kryzanowski is a medical doctor
specialized in psychiatry who provided medical and mental
health treatment to Beverly Smith.
3. Defendant Angela Smith is a resident of Virginia who was
a party litigant in a certain proceeding involving, inter alia,
custody and visitation of a juvenile in the Juvenile and
Domestic Relations District Court for Goochland County,
Virginia.
4. Defendant Deanna Cook is a resident of Virginia and is an
attorney licensed in the Commonwealth of Virginia and was
at all times relevant herein acting as an agent and attorney for
Angela Smith in addition to other capacities as set forth
below.
5. Plaintiff Beverly Smith is the paternal grandmother of
Stone Wyatt Smith, the juvenile who was the subject of a
custody and visitation dispute by and between Angela Dawn
Smith and Dean E. Smith in the Juvenile and Domestic
Relations District Court for Goochland County, Virginia.
6. Plaintiff Beverly Smith was not a party or “party witness”
to the litigation in the Juvenile and Domestic Relations
District Court for Goochland County, Virginia.
7. In 2000, Virginia Code § 16.1-265 provided in pertinent
part as follows:
Upon application of a party and pursuant to the rules of the
Supreme Court of Virginia for the issuance of subpoenas, the
clerk of the court shall issue, and the court on its own motion
may issue, subpoenas requiring attendance and testimony of
witnesses and production of records, documents or other
tangible objects at any hearing. Subpoenas duces tecum for
medical records shall be subject to the provisions of §§$§§
8.01-413 and 32.1-277.1:03 except that no separate fee shall
be imposed. A subpoena may also be issued in a civil
proceeding by an attorney-at-law who is an active member of
A10
the Virginia State Bar at the time of issuance, as an officer of
the court. Any such subpoena shall be on a form approved by
the Committee on District Courts, signed-by the attorney as if
a pleading and shall include the attorney’’s address. A copy,
together with the attorney’’s certificate of service pursuant to
Rule 1:12, shall be mailed or delivered to the clerk’’s office
of the court in which the case is pending on the day of
issuance by the attorney. The law governing subpoenas
issued by a clerk shall apply mutatis mutandis, except that
attorneys may not issue subpoenas in those cases in which
they may not issue a summons as provided in §§ 8.01-407
and may not issue a subpoena duces tecum less than five
business days prior to the date that production of evidence is
required. When an attorney-at-law transmits one or more
subpoenas or subpoenas duces tecum to a sheriff to be served
in his jurisdiction, the provisions in §§ 8.01-407 regarding
such transmittals shall apply. If the time for compliance with
a subpoena issued by an attorney is less than fourteen days
after service of the subpoena, the person to whom it is
directed may serve upon the party issuing the subpoena a
written objection setting forth any grounds therefor. If
objection is made, the party on whose behalf the subpoena
was issued and served shall not be entitled to compliance,
except pursuant to an order of the court, but may, upon notice
to the person to whom the subpoena was directed, move for
an order to compel compliance. Upon such timely motion,
the court may quash, modify or sustain the subpoena.
(Emphasis added)
8. In or around August, 2002, under color of state law,
pursuant to a procedural scheme created by statute, citing as
authority for her actions, §§ 8.01-413, 16.1-89 and 16.1-265,
Deanna Cook, an attorney in the Commonwealth of Virginia,
acting for and on behalf of Angela Smith, a party to the
All
custody and visitation proceedings, by her attorney, issued an
attorney issued subpoena duces tecum (See the attached
Exhibit 1 incorporated herein by this reference with Exhibit
“A” describing the medical/psychiatric records of Beverly
Smith to be produced), commanding the production of
Beverly Smith’s medical/psychiatric records from Leslie J.
Krzanowski without affording to Beverly Smith any notice
that her records were being subpoenaed and all in violation of
§ 8.01-399(D) and § 32.1-127.1:03.
9. The subpoena was issued under color of state law by an
officer of the court but was not a “court authorized
subpoena.”
10. In 2002, Virginia Code § 32.1-127.1:03(H)(1) provided
in pertinent part, “No party to an action shall request or
cause the issuance of a subpoena duces tecum for the medical
records of a nonparty witness unless a copy of the request for
the subpoena or a copy of the attorney-issued subpoena is
provided to the nonparty witness simultaneously with filing
the request or issuance of the attorney-issued subpoena.”
11. Additionally, in 2002, Virginia Code § 32.1-127.1:03
provided in part that “In instances where medical records
being subpoenaed are those of a ...nonparty witness, the party
requesting or issuing the subpoena shall deliver to the
..nonparty witness together with the copy of the request for
subpoena, or a copy of the subpoena in the case of an
attorney-issued subpoena, a statement informing them of
their rights and remedies....”
12. Additionally, in 2002, Virginia Code § 32.1-127.1:03
provided in part that the statement referenced above should
be provided to the nonparty witness as follows:
NOTICE TO PATIENT
The attached document means that (insert name of party
requesting or causing issuance of the subpoena) has either
Al2
asked the court to issue a subpoena or a subpoena has been
issued by the other party's attorney to your doctor or other
health care providers (names of health care providers inserted
here) requiring them to produce your medical records. Your
doctor or other health care provider is required to respond by
providing a copy of your medical records: If you believe your
records should not be disclosed and object to their disclosure,
you have the right to file a motion with the clerk of the court
to quash the subpoena. You may contact the clerk's office to
determine the requirements that must be satisfied when filing
a motion to quash and you may elect to contact an attorney to
represent your interest. If you elect to file a motion to quash,
it must be filed as soon as possible before the provider sends
out the records in response to the subpoena. If you elect to
file a motion to quash, you must notify your doctor or other
health care provider(s) that you are filing the motion so that
the provider knows to send the records to the clerk of court in
a sealed envelope or package for safekeeping while your
motion is decided.
13. Plaintiff Beverly Smith did not receive the foregoing
notice or statement of rights and remedies.
14. The Virginia Code § 32.1-127.1:03(D) provides for
disclosure of medical records under circumstances not
present in this case. The code provides in pertinent part as
follows: D. Health care entities may disclose health records:
13. To the attorney and/or guardian ad litem of a minor
who represents such minor in any judicial or
administrative proceeding, if the court or administrative
hearing officer has entered an order granting the attorney
or guardian ad litem this right and such attorney or
guardian ad litem presents evidence to the health care
entity of such order;
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15. Leslie J. Krzanowski produced to Angela Smith and
Deanna Cook and to the court the medical/psychiatric records
of Beverly Smith without Beverly Smith’s authorization or
consent and without notice to Beverly Smith.
16. In turn, Angela Smith by her attorney Deanna Cook
disseminated the medical/psychiatric information of Beverly
Smith without Beverly Smith’s authorization or consent and
without notice to Beverly Smith.
17. Leslie J. Krzanowski and Angela Smith jointly engaged
and participated with Deanna Cook, acting as an officer of
the court, in depriving Beverly Smith of the confidential
medical information contained in the medical records.
Count 1
42 U.S.C. § 1983
18. Paragraphs | - 17 are incorporated herein.
19. Plaintiff need not allege that the defendants were acting
on behalf of the state, but instead that the defendants “under
color of any statute, ordinance, regulation, custom or usage
of” Virginia “subjects, or causes to be subjected, any citizen
of the United States...to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws” which is what plaintiff alleges by this and other
paragraphs herein.
20. 42 U.S.C. § 1983 provides in pertinent part as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
Within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in
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an action at law, suit in equity, or other proper proceeding
for redress... ;
21. Plaintiff was deprived of (1) her medical privacy secured
by the Constitution and laws and (2) her property right to the
confidentiality of her medical records under Virginia law
without due process.
22. The Due Process Clause of the Fourteenth Amendment
provides that "[n]o State shall ... deprive any person of life,
liberty, or property, without due process of law." 14th
Amendment to the U.S. Constitution.
23. Beverly Smith has a constitutional right to medical
privacy. See eg. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705
(1973), Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct.
1678 (1965) (marital privacy in decisions of birth control).
24. Beverly Smith had a constitutional right to due process
before her property was taken from her.
25. While the written, printed or electronically recorded
material maintained by Dr. Leslie J. Krzanowski are by
Virginia statute, the property of Dr. Krzanowski under Va.
Code § 32.1-127.1:03, the plaintiff had a statutory right of
privacy to the content and information of her medical/health
records. Id. (“There is hereby recognized a patient’s right of
privacy in the content of a patient’s medical record.”(Va.
Code § 32.1-127.1:03 as it read in 2002).
26. Beverly Smith challenges the constitutionality of Va.
Code § 32.1-127.1:03 to the extent that it may be interpreted
to provide any right of ownership to Dr. Krzanowski
independent of Beverly Smith to the content and information
in contrast to the written, printed or electronically recorded
material maintained by Dr. Leslie J. Krzanowski.
27. Cook as an officer of the court acting under color of state
law pursuant to a procedural scheme created by state statute
deprived plaintiff of her property interest namely her medical
Al5
privacy without notice or an opportunity to be heard in
violation of 14th Amendment to the U.S. Constitution.
28. Beverly Smith’s deprivation of her medical privacy
resulted from the exercise of a right or privilege having its
source in state authority.
29. Beverly Smith was deprived of her right to notice and to
an opportunity to be heard.
30. Defendants are appropriately characterized as “state
actors.”
31. Leslie J. Krzanowski and Angela Smith jointly and
willfully engaged and participated with Deanna Cook, who
was acting as an officer of the court when she issued the
subpoena for medical records which contained the
confidential medical information belonging to Beverly Smith
depriving her of her property interest in the confidentiality of
her medical information contained in the medical records,
and thereby acted “under color” of law for purposes of 42
U.S.C. §1983.
32. Defendants acted pursuant to a procedural scheme
created by statute which is the product of state action.
33. This is not the case of a mere private misuse of a state
statute.
34. Leslie J. Krzanowski, Angela Smith, Deanna Cook, all
acted under color of law, albeit as a result of the abuse of the
authority by Deanna Cook, to obtain the disclosure of the
medical/psychiatric information of Beverly Smith without
her consent, authorization and without notice.
35. The privacy of the medical/psychiatric information of
Beverly Smith constituted the private property of Beverly
Smith.
36. The private property of Beverly Smith was taken without
due process of law, without notice and without
compensation.
Al6
37. Asa result of the Constitutional violations, Beverly
Smith has suffered the loss of her privacy, and further
suffered emotional distress, including but not limited to
physical injuries including loss of appetite, sleeplessness,
nausea together with depression and other severe emotional
injuries, and past and future medical bills.
Count 2
Negligence
38. Paragraphs | - 17 are incorporated herein.
39. Leslie J. Krzanowski, Angela Smith and Deanna Cook,
each owed Beverly Smith a duty not to breach the privacy
interest that Beverly Smith had to her medical/psychiatric
records.
40. The foregoing duty was not voided by any abuse of
authority by an attorney issuing a subpoena pursuant to §§
8.01-413, 16.1-89 or 16.1-265 of the Code of Virginia where
no notice was provided to Beverly Smith as required by §
32.1-127.1:03.
41. It is well established in Virginia that a health care
provider owes a duty of reasonable care to its patient,
including but not limited to a duty and obligation by the
health care provider 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. Fairfax Hospital v.
Curtis, 254, Va. 437, 442, 492 S.E.2d 642 (1997).
42. The foregoing duty was not voided by any abuse of
authority by an attorney issuing a subpoena pursuant to §§
8.01-413, 16.1-89 or 16.1-265 of the Code of Virginia where
no notice was provided to Beverly Smith as required by §
32.1-127.1:03.
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43. It is well established in Virginia that confidentiality is an
integral aspect of the relationship between a health care
provider and a patient. Fairfax Hospital v. Curtis, 254, Va.
437, 442, 492 S.E.2d 642 (1997).
44. The foregoing duty was not voided by any abuse of
authority by an attorney issuing a subpoena pursuant to §§
8.01-413, 16.1-89 or 16.1-265 of the Code of Virginia where 7
no notice was provided to Beverly Smith as required by §
32.1-127.1:03.
45. It is well established in Virginia that in the absence of a
statutory 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. Fairfax Hospital v. Curtis, 254, Va. 437, 442,
492 S.E.2d 642 (1997).
46. The foregoing duty was not voided by any abuse of
authority by an attorney issuing a subpoena pursuant to §§
8.01-413, 16.1-89 or 16.1-265 of the Code of Virginia where
no notice was provided to Beverly Smith as required by §
32.1-127.1:03.
47. 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. Fairfax
Hasp. by & Through INOVA Health Sys. Hosps. v. Curtis,
254 Va. 437, 442 (Va., 1997).
48. In the present case there was neither a statutory
command to the contrary, nor a serious danger to the patient
or others that relieved Dr. Kryzanowski of her duty.
Al8
49. The foregoing duty was not voided by any abuse of
authority by an attorney issuing a subpoena pursuant to §§
8.01-413, 16.1-89 or 16.1-265 of the Code of Virginia where
no notice was provided to Beverly Smith as required by §
32.1-127.1:03.
50. It was well established that Virginia Code § 32.1-
127.1:03, entitled “Patient health records privacy” provides
in pertinent part that “ There is hereby recognized a patient's
right of privacy in the content of a patient's medical record.
Patient records are the property of the provider maintaining
them, and, except when permitted by this section or by
another provision of state or federal law, no provider, or
other person working in a health care setting, may disclose
the records of a patient.”
51. The foregoing duty was not voided by any abuse of
authority by an attorney issuing a subpoena pursuant to §§
8.01-413, 16.1-89 or 16.1-265 of the Code of Virginia where
no notice was provided to Beverly Smith as required by §
32.1-127.1:03. -
52. Numerous other courts have recognized a right of
privacy in a patients records. See Whalen v. Roe, 429 U.S.
589, 598-99, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977); United
States v. Westinghouse Elec. Corp., 638 F.2d 570, 578 (3rd
Cir. 1980); Shoemaker v. Handel, 608 F. Supp. 1151, 1159
(D.N.J. 1985).
53. Nevertheless, defendants Leslie J. Krzanowski, Angela
Smith, and Deanna Cook caused the confidential information
of the plaintiff to be disclosed without plaintiff's consent and
without following the procedures outlined in Va. Code §
32.1-127.1:03.
54. Deanna Cook issued and caused to be served the
attorney issued subpoena for documents seeking the
production of medical records of plaintiff without providing
Al9¥
to plaintiff a copy of the request in contravention of the
duties imposed by Va. Code that provided in pertinent part
that “No party to an action shall request or cause the issuance
of a subpoena duces tecum for the medical records of a
nonparty witness unless a copy of the request for the
subpoena or a copy of the attorney-issued subpoena is
provided to the nonparty witness simultaneously with filing
the request or issuance of the attorney-issued subpoena.”
55. Deanna Cook issued and caused to be served the
attorney issued subpoena for documents seeking the
production of medical records of plaintiff without providing
to plaintiff a statement of rights and remedies in
contravention of the duties imposed by Virginia Code § 32.1-
127.1:03 that provided in pertinent part that provided in part
that “In instances where medical records being subpoenaed
are those of a ...nonparty witness, the party requesting or
issuing the subpoena shall deliver to the ...nonparty witness
together with the copy of the request for subpoena, or a copy
of the subpoena in the case of an attorney-issued subpoena, a
statement informing them of their rights and remedies....”
including the following “NOTICE TO PATIENT
The attached document means that (insert name of party
requesting or causing issuance of the subpoena) has either
asked the court to issue a subpoena or a subpoena has been
issued by the other party's attorney to your doctor or other
health care providers (names of health care providers inserted
here) requiring them to produce your medical records. Your
doctor or other health care provider is required to respond by
providing a copy of your medical records. If you believe your
records should not be disclosed and object to their disclosure,
you have the right to file a motion with the clerk of the court
to quash the subpoena. You may contact the clerk's office to
determine the requirements that must be satisfied when filing
A20
a motion to quash and you may elect to contact an attorney to
represent your interest. If you elect to file a motion to quash,
it must be filed as soon as possible before the provider sends _
out the records in response to the subpoena. If you elect to
file a motion to quash, you must notify your doctor or other
health care provider(s) that you are filing the motion so that
the provider knows to send the records to the clerk of court in
a sealed envelope or package for safekeeping while your
motion is decided.
56. The defendant Angela Smith acted by and through her
agent as described above.
57. The defendant Dr. Kryzanowski delivered the medical
records and disclosed the medical information and contents
of the medical records to Deanna Cook, failed to protect and
preserve the confidentiality of the her patient, the plaintiff,
failing to refuse to comply with the attorney issued subpoena
which did not meet the statutory requirements set forth in §
32.1-127.1:03, failing to notify the plaintiff of the receipt of a
subpoena for the records, failing to move to quash the
subpoena, failing to act in accordance with the duty of
reasonable care of a health care provider owes to her patient,
including but not limited to a duty and obligation by the
health care provider 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 as recognized by
Fairfax Hospital v. Curtis, 254, Va. 437, 442, 492 S.E.2d 642
(1997) which provides no exception for attorney issued
~ subpoena in contravention of Va. Code. § 32.1-127.1:03.
58. The disclosure by the defendants was voluntary.
59. The disclosure was not authorized by law.
60. The disclosure was not necessary in connection with the
care of the patient or plaintiff.
A2l
61. The disclosure was not necessary in connection with the
protection or enforcement any of the defendant’s legal rights.
62. The disclosure was not done in order to comply with
state or federal law.
63. The disclosure of information was not in conformity
with the usual procedures in place designed to protect the
confidential medical information of patients.
64. The defendants Leslie J. Krzanowski, Angela Smith and
Deanna Cook had a duty to honor the implied promise of
confidentiality of plaintiff's confidential medical and
personal information.
65. The foregoing duty was not voided by any abuse of
authority by an attorney issuing a subpoena pursuant to §§
8.01-413, 16.1-89 or 16.1-265 of the Code of Virginia where
no notice was provided to Beverly Smith as required by §
32.1-127.1:03.
66. When the patient does not manifestly place her medical
condition at issue in a civil proceeding, then the statute
requires a determination by a judicial officer whether there is
a basis for disseminating the patient’s confidential
communications to third persons before the dissemination or
disclosure.
67. Upon information and belief, no such determination was
made.
68. Defendants Leslie J. Krzanowski, Angela Smith and
Deanna Cook breached that duty by disclosing confidential
information to unauthorized persons, including but not
limited to plaintiff's son’s attorney and to the court, Angela
Smith and Deanna Cook.
69. Defendants Leslie J. Krzanowski, Angela Smith and
Deanna Cook breached that duty by disclosing confidential
information to unauthorized persons, including but not
limited to plaintiff's son’s attorney and to the court, Angela
Smith, Deanna Cook, and Deborah S. Tinsley, and violated
the standard of care by disclosing confidential information to
unauthorized persons.
70. Asa direct and proximate result plaintiff has suffered
physical injuries including loss of appetite, sleeplessness,
nausea together with depression and other severe emotional
injuries.
71. Asa direct and proximate result plaintiff has suffered
and will suffer serious physical, emotional and mental
injuries together with past and future medical losses.
72. As a direct and proximate result of the breach and
violation stated above, plaintiff suffered humiliation,
embarrassment, and similar harm to her feelings, and is
therefore entitled to damages for emotional distress and
injuries which are presumed.
73. Asa direct and proximate result of the breach and
violation stated above, plaintiff suffered damages, including
but not limited to the loss of privacy in her confidential
personal and medical information.
Count 3
Malpractice against Dr. Leslie Krzanowski
74. Paragraphs | - 17 and 39 - 73 are incorporated herein.
75. Upon receipt of that information by the patient, the
physician impliedly promises not to violate the confidence.
Because the duty to honor the implied promise of
confidentiality is but another component of the treatment
rendered, the breach of that duty should be judged like the
breach of the general duty. Thus, as with a violation of the
standard of care generally, a breach of the duty of
confidentiality, "resulting in damages, gives rise to a cause of
action sounding in tort against the physician.”
A23
76. Defendant Leslie J. Krzanowski breached the terms of
the promise and implied agreement that she had with plaintiff
which resulted in past and future physical, emotional and
mental injuries to the plaintiff together with past and future
medical bills all of which were foreseeable at the time of the
agreement to provide services and treatment
WHEREFORE, Plaintiff moves for judgment as follows:
a. As-+to Count | and 2, jointly and severally against Leslie J.
Krzanowski, Angela Smith, and Deanna Cook in the amount
of $250,000.00 in compensatory damages or such other
amount as the law may allow, together with costs and
attorneys fees in this matter expended; and
b. As to Count 1, plaintiff also prays for such further relief as
may be provided by 42 U.S.C. § 1983.
c. As to Count 3, against Leslie J. Krzanowski in the amount
~ of $250,000.00 in damages or such other amount as the law
may allow, together with costs in this matter expended.
d. Such other and further relief as may be appropriate.
Trial by jury is demanded.
Respectfully Submitted:
BEVERLY SMITH
By: /s/
Counsel
Thomas H. Roberts, Esq.
VSB: # 26014
Thomas H. Roberts & Associates, P.C.
105 South Ist Street
Richmond, Virginia 23219-3718
A 24
Tele: (804) 783-2000
Fax: (804) 783-2105 _
TO: 18 WTC e105
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A 26
EXHIBIT “A”
Produce the originals or legible copies of the follo ag documents to the
law offices of Bremner, Janus. Cook & Marcus, 701 E. Franklin Street Ste.
1800, Richmond, VA 23219, on or before December 23, 2002 as 3:00 p.m.:
Comes of the full and complete Gie, omittiag nothing, of Beverly Smith,
lowsrens address: 1284 Masiin Road, Goochland, VA 23063), including
ut not Limited to. all examination reparts and notes; sied:¢al Aistories acd
ronsultanén reports; correspondence to and from the abave-ramod
individuals ether physiczans: correspondence wand tom family members of
che above-named individuals: progress and he notes dnd furses notes,
PSY TOGISETICAl, peychisizic ant neuropsycaclogira: test data, te8%9 Sctres, 249%
eeweré, raw deta 2nd eva) urtios and peer ooh reports; Cherapy renerts
and in-progress notes, statements and reports of conditios, treatment,
digencsis and progposia; hospitz! admission and Garharge reports;
mergeucy medical care renoris, laboratory tests results and reports, hills :
exd/or ssatemente. from the beginning of treatrment tirsugh th
present
APPENDIX E
VA CODE § 32.1-127.1:03, AS AMENDED IN 2002
~~ 4 - 4 — 4-4 - 4 - 4 A H-
§ 32.1-127.1:03. Patient health records privacy.
A. There is hereby recognized a patient's right of privacy in
the content of a patient's medical record.-Patient records are
the property of the provider maintaining them, and, except
when permitted by this section or by another provision of
state or federal law, no provider, or other person working in a
health care setting, may disclose the records of a patient.
Patient records shall not be removed from the premises where
they are maintained without the approval of the provider,
except in accordance with a court order or subpoena
consistent with § 8.01-413 C or with this section or in
accordance with the regulations relating to change of
ownership of patient records promulgated by a health
regulatory board established in Title 54.1. :
No person to whom disclosure of patient records was made
by a patient or a provider shall redisclose or otherwise reveal
the records of a patient, beyond the purpose for which such
disclosure was made, without first obtaining the patient's
specific consent to such redisclosure. This redisclosure
prohibition shall not, however, prevent (i) any provider who
receives records from another provider from making
subsequent disclosures as permitted under this section or (ii)
any provider from furnishing records and aggregate or other
data, from which patient-identifying prescription information
has been removed, encoded or encrypted, to qualified
A 28
researchers, including, but not limited to, pharmaceutical
manufacturers and their agents or contractors, for purposes of
clinical, pharmaco-epidemiological, pharmaco-economic, or
other health services research.
B. As used in this section:
"Agent" means a person who has been appointed as a
patient's agent under a power of attorney for health care or an
advance directive under the Health Care Decisions Act (§
54.1-2981 et seq.).
"Guardian" means a court-appointed guardian of the person.
"Health services" includes, but is not limited to, examination,
diagnosis, evaluation, treatment, pharmaceuticals, aftercare,
habilitation or rehabilitation and mental health therapy of any
kind.
"Parent" means a biolegical, adoptive or foster parent.
"Patient" means a person who is receiving or has received
health services from a provider.
"Patient-identifying prescription information" means all
prescriptions, drug orders or any other prescription
information that specifically identifies an individual patient.
"Provider" shall have the same meaning as set forth in the
definition of "health care provider" in § 8.01-581.1, except
that state-operated facilities shall also be considered
providers for the purposes of this section. Provider shall also
include all persons who are licensed, certified, registered or
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permitted by any of the health regulatory boards within the
Department of Health Professions, except persons regulated
by the Board of Funeral Directors and Embalmers or the
Board of Veterinary Medicine.
"Record" means any written, printed or electronically
recorded material maintained by a provider in the course of
providing health services to a patient concerning the patient
and the services provided. "Record" also includes the
substance of any communication made by a patient to a
provider in confidence during or in connection with the
provision of health services to a patient or information
otherwise acquired by the provider about a patient in
confidence and in connection with the provision of health
services to the patient.
C. The provisions of this section shall not apply to any of the
following:
1. The status of and release of information governed by §§
65.2-604 and 65.2-607 of the Virginia Workers’
Compensation Act; or
2. Except where specifically provided herein, the records of
minor patients.
D. Providers may disclose the records of a patient:
1. As set forth in subsection E of this section, pursuant to the
written consent of the patient or in the case of a minor
patient, his custodial parent, guardian or other person
authorized to consent to treatment of minors pursuant to §
54.1-2969; also, in emergency cases or situations where it is
A30
impractical to obtain the patient's written consent, pursuant to
the patient's oral consent for a provider to discuss the
patient's records with a third party specified by the patient;
2. In compliance with a subpoena issued in accord with
subsection H of this section, pursuant to court order upon
good cause shown or in compliance with a subpoena issued
pursuant to subsection C of § 8.01-413;
3. In accord with subsection F of § 8.01-399 including, but
not limited to, situations where disclosure is reasonably
necessary to establish or collect a fee or to defend a provider
or the provider's employees or staff against any accusation of.
wrongful conduct; also as required in the course of an
investigation, audit, review or proceedings regarding a
provider's conduct by a duly authorized law-enforcement,
licensure, accreditation, or professional review entity;
4. In testimony in accordance with §§ 8.01-399 and 8.01-
400.2:
5. In compliance with the provisions of § 8.01-413;
6. As required or authorized by any other provision of law
including contagious disease, public safety, and suspected
child or adult abuse reporting requirements, including, but
not limited to, those contained in §§ 32.1-36, 32.1-36.1, 32.1-
40, 32.1-41, 32.1-276.5, 32.1-283, 32.1-283.1, 37.1-98.2,
53.1-40.10, 54.1-2403.3, 54.1-2906, 54.1-2907, 54.1-2966,
54.1-2966.1, 54.1-2967, 54.1-2968, 63.1-55.3 and 63.1-
248.11 63.1-248.3;
7. Where necessary in connection with the care of the patient,
including in the implementation of a hospital routine contact
process;
8. In the normal course of business in accordance with
accepted standards of practice within the health services
setting; however, the maintenance, storage, and disclosure of
the mass of prescription dispensing records maintained in a
pharmacy registered or permitted in Virginia shall only be
accomplished in compliance with §§ 54.1-3410, 54.1-3411
and 54.1-3412;
9. When the patient has waived his right to the privacy of the
medical records;
10. When examination and evaluation of a patient are
undertaken pursuant to judicial or administrative law order,
but only to the extent as required by such;
11. To the guardian ad litem in the course of a guardianship
proceeding of an adult patient authorized under Article 1.1 (§
37.1-134.6 et seq.) of Chapter 4 of Title 37.1;
12. Te the attorney appointed by the court to represent a
patient in a civil commitment proceeding under § 37.1-67.3;
13. To the attorney and/or guardian ad litem of a minor
patient who represents-such minor in any judicial or
administrative proceeding, provided that the court or
administrative hearing officer has entered an order granting
the attorney or guardian ad litem this right and such attorney
or guardian ad litem presents evidence to the provider of such
order;
A 32
14. With regard to the Court-Appointed Special Advocate
(CASA) program, a minor's records in accord with § 9.1-156;
15. To an agent appointed under a patient's power of attorney
or to an agent or decision maker designated in a patient's
advance directive for health care or for decisions on
anatomical gifts and organ, tissue or eye donation or to any
other person consistent with the provisions of the Health Care
Decisions Act (§ 54.1-2981 et seq.);
16. To third-party payors and their agents for purposes of
reimbursement;
17. As is necessary to support an application for receipt of
health care benefits from a governmental agency or as
required by an authorized governmental agency reviewing
such application or reviewing benefits already provided;
18. Upon the sale of a medical practice as provided in § 54.1-
2405; or upon a change of ownership or closing of a
pharmacy pursuant to regulations of the Board of Pharmacy;
19. In accord with § 54.1-2400.1 B, to communicate a
patient's specific and immediate threat to cause serious bodily
injury or death of an identified or readily identifiable person;
20. To the patient, except as provided in subsections E and F
of this section and subsection B of § 8.01-413;
21. In the case of substance abuse records, when permitted by
and in conformity with requirements of federal law found in
42 U.S.C. § 290dd-2 and 42 C.F.R. Part 2;
A 33
22. In connection with the work of any entity established as ~
set forth in § 8.01-581.16 to evaluate the adequacy or quality
of professional services or the competency and qualifications
for professional staff privileges:
23. If the records are those of a deceased or mentally
incapacitated patient to the personal representative or
executor of the deceased patient or the legal guardian or
committee of the incompetent or incapacitated patient or if
there is no personal representative, executor, legal guardian
or committee appointed, to the following persons in the
following order of priority: a spouse, an adult son or
daughter, either parent, an adult brother or sister, or any other
relative of the deceased patient in order of blood relationship;
24. For the purpose of conducting record reviews of inpatient
hospital deaths to promote identification of all potential
organ, eye, and tissue donors in conformance with the
requirements of applicable federal law and regulations,
including 42 C.F.R. § 482.45, (i) to the provider's designated
organ procurement organization certified by the United States
Health Care Financing Administration and (11) to any eye
bank or tissue bank in Virginia certified by the Eye Bank
Association of America or the American Association of
Tissue Banks;
25. To the Office of the Inspector General for Mental Health,
Mental Retardation and Substance Abuse Services pursuant
to Chapter 16 (§ 37.1-255 et seq.) of Title 37.1; and
26. (Expires July 1, 2003) To an entity participating in the
activities of a local health partnership authority established
A 34
pursuant to Article 6.1 (§ 32.1-122.10:001 et seq.) of Chapter
4 of Title 32.1, pursuant to subdivision D 1 of this section.
E. Requests for copies of medical records shall (i) be in
writing, dated and signed by the requester; (ii) identify the
nature of the information requested; and (iii) include
evidence of the authority of the requester to receive such
copies and identification of the person to whom the
information is to be disclosed. The provider shall accept a
photocopy, facsimile, or other copy of the original signed by
the requestor as if it were an original. Within fifteen days of
receipt of a request for copies of medical records, the
provider shall do one of the following: (i) furnish such copies
to any requester authorized to receive them; (ii) inform the
requester if the information does not exist or cannot be
found; (iii) if the provider does not maintain a record of the
information, so inform the requester and provide the name
and address, if known, of the provider who maintains the
record; or (iv) deny the request (a) under subsection F, (b) on
the grounds that the requester has not established his
authority to receive such records or proof of his identity, or
(c) as otherwise provided by law. Procedures set forth in this
section shall apply only to requests for records not
specifically governed by other provisions of this Code,
federal law or state or federal regulation.
F. Except as provided in subsection B of § 8.01-413, copies
of a patient's records shall not be furnished to such patient or
anyone authorized to act on the patient's behalf where the
_ patient's attending physician or the patient's clinical
psychologist has made a part of the patient's record a written
statement that, in his opinion, the furnishing to or review by
the patient of such records would be injurious to the patient's
A 35
health or well-being. If any custodian of medical records
denies a request for copies of records based on such
statement, the custodian shall permit examination and
copying of the medical record by another such physician or
clinical psychologist selected by the patient, whose licensure,
training and experience relative to the patient's condition are
at least equivalent to that of the physician or clinical
psychologist upon whose opinion the denial is based. The
person or entity denying the request shall inform the patient
of the patient's right to select another reviewing physician or
clinical psychologist under this subsection who shall make a
judgment as to whether to make the record available to the
patient. Any record copied for review by the physician or
clinical psychologist selected by the patient shall be
accompanied by a statement from the custodian of the record
that the patient's attending physician or clinical psychologist
determined that the patient's review of his record would be
injurious to the patient's health or well-being.
G. A written consent to allow release of patient records may,
but need not, be in the following form:
CONSENT TO RELEASE OF CONFIDENTIAL HEALTH
CARE
INFORMATION
Information or Records to be
a
A 36
As the person signing this consent, | understand that I am
giving my permission to the above-named provider or other
named third party for disclosure of confidential health care
records. | also understand that I have the right to revoke this
consent, but that my revocation is not effective until
delivered in writing to the person who is in possession of my
records. A copy of this consent and a notation concerning the
persons or agencies to whom disclosure was made shall be
included with my original records. The person who receives
the records to which this consent pertains may not redisclose
them to anyone else without my separate written consent
unless such recipient is a provider who makes a disclosure
permitted by law.
This Consent expires ON (Gate)........ccccerccesorcersssveeseceeresseses
Signature of Patient...............ccccscsrcsseeees ee ciiicaninaiins
H. |. No party to an action shall request the issuance of a
subpoena duces tecum for an opposing party's medical
records or cause a subpoena duces tecum to be issued by an
attorney unless a copy of the request for the subpoena or a
copy of the attorney-issued subpoena is provided to opposing
counsel or the opposing party if they are pro se,
simultaneously with filing the request or issuance of the
subpoena. No party to an action shall request or cause the
issuance of a subpoena duces tecum for the medical records
of a nonparty witness unless a copy of the request for the
subpoena or a copy of the attorney-issued subpoena is
provided to the nonparty witness simultaneously with filing
the request or issuance of the attorney-issued subpoena.
A 37
In instances where medical records being subpoenaed are
those of a pro se party or nonparty witness, the party
requesting or issuing the subpoena shall deliver to the pro se
party or nonparty witness together with the copy of the
request for subpoena, or a copy of the subpoena in the case of
an attorney-issued subpoena, a statement informing them of
their rights and remedies. The statement shall include the
following language and the heading shall be in boldface
capital letters:
NOTICE TO PATIENT
The attached document means that (insert name of party
requesting or causing issuance of the subpoena) has either
asked the court to issue a subpoena or a subpoena has been
issued by the other party's attorney to your doctor or other
health care providers (names of health care providers inserted
here) requiring them to produce your medical records. Your
doctor or other health care provider is required to respond by
providing a copy of your medical records. If you believe your
records should not be disclosed and object to their disclosure,
you have the right to file a motion with the clerk of the court
to quash the subpoena. You may contact the clerk's office to
determine the requirements that must be satisfied when filing
a motion to quash and you may elect to contact an attorney to
represent your interest. If you elect to file a motion to quash,
it must be filed as soon as possible before the provider sends
out the records in response to the subpoena. If you elect to
file a motion to quash, you must notify your doctor or other
health care provider(s) that you are filing the motion so that
the provider knows to send the records to the clerk of court in
a sealed envelope or package for safekeeping while your
motion is decided.
A38
2. Any party filing a request for a subpoena duces tecum or
causing such a subpoena to be issued for a patient's medical
records shall include a Notice to Providers in the same part of
the request where the provider is directed where and when to
return the records. Such notice shall be in boldface capital
letters and shall include the following language:
NOTICE TO PROVIDERS
IF YOU RECEIVE NOTICE THAT YOUR PATIENT HAS
FILED A MOTION TO QUASH (OBJECTING TO) THIS
SUBPOENA, OR IF YOU FILE A MOTION TO QUASH
THIS SUBPOENA, SEND THE RECORDS ONLY TO THE
CLERK OF THE COURT WHICH ISSUED THE
SUBPOENA OR IN WHICH THE ACTION IS PENDING
AS SHOWN ON THE SUBPOENA USING THE
FOLLOWING PROCEDURE: PLACE THE RECORDS IN
A SEALED ENVELOPE AND ATTACH TO THE
SEALED ENVELOPE A COVER LETTER TO THE
CLERK OF COURT WHICH STATES THAT
CONFIDENTIAL HEALTH CARE RECORDS ARE
ENCLOSED AND ARE TO BE HELD UNDER SEAL
PENDING THE COURT'S RULING ON THE MOTION TO
QUASH THE SUBPOENA. THE SEALED ENVELOPE
AND THE COVER LETTER SHALL BE PLACED IN AN
OUTER ENVELOPE OR PACKAGE FOR
TRANSMITTAL TO THE COURT.
3. Health care providers shall provide a copy of all records as
required by a subpoena duces tecum or court order for such
medical records. If the health care provider has, however,
actual receipt of notice that a motion to quash the subpoena
A39
has been filed or if the health care provider files a motion to
quash the subpoena for medical records, then the health care
provider shall produce the records to the clerk of the court
issuing the subpoena or in whose court the action is pending,
where the court shall place the records under seal until a
determination is made regarding the motion to quash. The
securely sealed envelope shall only be opened on order of the
judge. In the event the court grants the motion to quash, the
records shall be returned to the health care provider in the
same sealed envelope in which they were delivered to the
court. In the event that a judge orders the sealed envelope to
be opened to review the records in camera, a copy of the
judge's order shall accompany any records returned to the
provider. The records returned to the provider shall be in a
securely sealed enveiupe.
4. It is the duty of any party requesting a subpoena duces
tecum for medical records or the attorney issuing the
subpoena duces tecum to determine whether the patient
whose records are sought is pro se or a nonparty. Any request
for a subpoena duces tecum and any attorney-issued
subpoena for the medical records of a nonparty or of a pro se
party shall direct the provider (in boldface type) not to
produce the records until ten days after the date on which the
provider is served with the subpoena duces tecum and shall
be produced no later than ¢wenty days after the datc of such
service.
In the event that the individual whose records are being
sought files a motion to quash the subpoena, the court shall
decide whether good cause has been shown by the
discovering party to compel disclosure of the patient's private
records over the patient's objections. In determining whether
A40 :
good cause has been shown, the court shall consider (i) the
particular purpose for which the information was collected;
(ii) the degree to which the disclosure of the records would
embarrass, injure, or invade the privacy of the individual; (iii)
the effect of the disclosure on the individual's future health
care; (iv) the importance of the information to the lawsuit or
proceeding; and (v) any other relevant factor.
The provisions of this subsection have no application to
subpoenas for medical records requested under § 8.01-413, or
issued by a duly authorized administrative agency conducting
an investigation, audit, review or proceedings regarding a
provider's conduct. The provisions of this subsection apply to
the medical records of both minors and adults.
A subpoena for substance abuse records must conform to the
requirements of federal law found in 42 C.F.R. Part 2,
Subpart E.
Providers may testify about the medical records of a patient
in compliance with §§ 8.01-399 and 8.01-400.2.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.