CHARLESTON – The West Virginia Supreme Court of Appeals has issued a memorandum decision in a lawsuit against the Marshall University Board of Governors for sending photographs to a patient's place of employment.

"This court has considered the parties’ briefs, oral arguments, and the record on appeal," the Oct. 20 decision states. "Upon consideration of the standard of review, the briefs, oral arguments, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure."

The memorandum decision was concurred by Chief Justice Margaret Workman and Justices Menis Ketchum and Allen Loughry.

Justice Brent Benjamin issued his own concurring in part and dissenting in part opinion. Justice Robin Jean Davis issued her own dissenting opinion.

Approximately 12 years ago, L. Linda Mays underwent a mastectomy and reconstructive surgery on her left breach that included the insertion of an implant. Several years later, she grew concerned about the appearance of the reconstruction and the possibility that the implant had ruptured or shifted and in October 2010, she consulted with Dr. Adel A. Faltaous to inquire about whether she should undergo corrective surgery.

As part of the examination, photographs were taken of her naked breasts from just below the breasts to her neck and her name was written on the pictures, according to the decision.

The purpose of the photographs was to obtain authorization from Mays' insurance carrier for the proposed surgery and she understood that the proposed surgery would have to be preauthorized by her insurance company.

A few days later, one of Faltaous' employees sent a letter to Mays' employer seeking preauthorization for her surgery because the employee mistakenly believed that such requests were to be sent there and the letter included the photographs of Mays.

The letter had been opened by an assistant in the human resources department at Mays' work and the assistant showed the photographs and letter to her supervisor, who then asked her own supervisor what she should do with the photographs.

The upper-level supervisor did not look at the photographs, but directed the assistant to return the photographs to Mays and they were sealed in an envelope, marked "confidential" and hand-delivered to Mays.

On Feb. 22, 2013, Mays filed her complaint in Cabell Circuit Court against Marshall for negligent infliction of emotional distress, breach of duty of confidentiality, invasion of privacy and negligence.

On Feb. 27, 2014, Marshall filed a motion for partial summary judgment on Mays' claim for negligent infliction of emotional distress and Mays filed a response that she is an extremely modest person and was humiliated and embarrassed by the incident.

On May 23, 2014, the circuit court granted Marshall's partial summary judgment motion, according to the decision.

On May 5, 2014, Marshall filed a motion for summary judgment on Mays' three remaining claims and the motion was granted on July 15, 2014. Mays' appeal followed.

In her appeal, Mays argued that the circuit court erred in granting summary judgment on her claims.

The Supreme Court ruled that the circuit court erred in granting summary judgment on petitioner’s negligent infliction of emotional distress claim.

"As the circuit court noted, in order to have a viable claim for negligent infliction of emotional distress, petitioner must allege that her emotional distress was serious from the point of view of an ordinarily sensitive person, not a supersensitive person," the decision states. "The undisputed testimony of petitioner’s psychiatrist highlighted the uniqueness of petitioner’s emotional state when the events giving rise to this case occurred."

Particularly, this testimony alleged that Mays was predisposed to emotional distress by her previous life experiences and, as a result of these experiences, Mays developed psychological defense mechanisms; and the failure of petitioner’s defense mechanisms, in response to seeing the pictures of herself, caused her emotional harm.

"This court in no way seeks to minimize petitioner’s feelings of embarrassment as a result of the events herein described," the decision states. "However, under the peculiar facts of this case, we cannot say the circuit court erred by finding that the plaintiff failed to establish the elements of negligent infliction of emotional distress."

Given that the pictures were only seen by two people, the Supreme Court stated that it cannot say the circuit court erred when it found that petitioner does not have a viable claim for invasion of privacy, according to the decision.

In his concurring in part and dissenting in part opinion, Benjamin stated that he agreed with the majority’s decision to affirm the circuit court’s grant of summary judgment on Mays’ claims for negligent infliction of emotional distress, breach of the duty of confidentiality and negligence, but not on invasion of privacy.

Benjamin stated that Mays can prove the elements of a claim for invasion of privacy "under our law."

"Ms. Mays had a right to prevent photographs of her naked breasts from being published to her coworkers," Benjamin stated. "Further, the defendant’s publication of photographs of Ms. Mays’ naked breasts among her coworkers, although unintentional, was unreasonable."

In her dissenting opinion, Davis stated that, because Mays regularly sees the coworkers who saw the photographs, she is frequently reminded of the disclosure of her private and confidential medical photographs.

"It is not this court’s role to decide whether these actions constitute emotional distress or rise to the level of tortious conduct," she stated. "Instead, a jury should have been allowed to consider these facts and determine whether Ms. Mays is entitled to recover for her embarrassment and resulting injuries. Because the majority upheld the circuit court’s summary dismissal of Ms. Mays’ claims rather than letting a jury determine the factual issues presented, I resolutely dissent."

Faltaous’ office admits that it erroneously sent these photographs to Mays’ employer, and, therefore, contrary to the majority’s opinion, Mays should have been given the opportunity to present her claims for invasion of privacy and breach of confidentiality to a jury.

"Notwithstanding all of the supporting law to the contrary, the majority erroneously affirmed the circuit court’s grant of summary judgment to the respondent, effectively foreclosing Ms. Mays’ right to recover for the respondent’s egregious conduct," Davis states.

W.Va. Supreme Court of Appeals case number 14-0788

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