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Velcoff v. MedStar Health, Inc.

Court of Appeals of The District of Columbia

June 21, 2018

Jessica Velcoff, Ph.D., Appellant,
MedStar Health, Inc., Appellee.

          Argued December 19, 2017

          Appeal from the Superior Court of the District of Columbia (CAB-6448-16) (Hon. Jeanette J. Clark, Trial Judge)

          Jonathan B. Nace for appellant.

          K. Nichole Nesbitt for appellee.

          Before Glickman, Thompson, and McLeese, Associate Judges.


         Appellant Jessica Velcoff, Ph.D., brought this action against MedStar Health, Inc., alleging that MedStar unlawfully disclosed her sensitive mental-health information. Dr. Velcoff appeals the trial court's dismissal of the complaint for failure to state a claim. We vacate the trial court's decision and remand for further proceedings.


         The complaint alleges the following. Dr. Velcoff suffered life-threatening injuries in a work-related car collision. She was admitted to National Rehabilitation Hospital (NRH), which is owned and operated by MedStar, for treatment that included psychological treatment. She submitted a claim for workers' compensation benefits. At some point during her inpatient treatment, she was told that "workers' comp was the client, not you." After she was discharged, she continued outpatient psychological treatment with an NRH clinical psychologist. During her treatment, MedStar gave her a privacy policy indicating that her personal health information would be kept confidential and disclosed only as required by law.

         In connection with her treatment, Dr. Velcoff shared personal and confidential information with her psychologist, unrelated to the processing of any workers' compensation claim. When her psychologist began questioning her on topics similar to those asked by her workers' compensation insurance company, Dr. Velcoff became concerned that her psychologist was not protecting her confidential information. When Dr. Velcoff asked what her psychologist had shared with the insurance company, her psychologist acknowledged having "shared everything." At this point, Dr. Velcoff stopped treatment with NRH's psychology department. Dr. Velcoff ordered a copy of her records, which confirmed that her psychologist had shared Dr. Velcoff s treatment file, including detailed notes of her sessions, with the insurance company, without Dr. Velcoff s consent.

         The complaint alleges that MedStar violated the District of Columbia Consumer Protection Procedures Act (CPPA), D.C. Code § 28-3901 et seq. (2013 Repl. & 2017 Cum. Supp.). Under the CPPA, "[a] consumer may bring an action seeking relief from the use of a trade practice in violation of a law of the District." D.C. Code § 28-3905 (k)(1)(A). Illegal trade practices include "representing] that . . . services . . . have characteristics . . . that they do not have"; "misrepresenting] as to a material fact which has a tendency to mislead"; or "fail[ing] to state a material fact if such failure tends to mislead." D.C. Code § 28-3904 (a), (e), (f). The complaint alleges that MedStar committed illegal trade practices in violation of the CPPA by breaking its promise to protect Dr. Velcoff s confidential mental-health information except as required by law. The complaint also alleges that MedStar violated the CPPA by disclosing Dr. Velcoff s mental-health information in violation of the D.C. Mental Health Information Act (MHIA), D.C. Code § 7-1201.01 et seq. (2018 Repl).

         The MHIA prohibits the unauthorized disclosure of mental-health information. D.C. Code § 7-1201.02. Under the MHIA, the following mental-health information may in some circumstances be disclosed to third-party payors: "(1) Administrative information; (2) Diagnostic information; (3) The status of the client (voluntary or involuntary); (4) The reason for admission or continuing treatment; and (5) A prognosis limited to the estimated time during which treatment might continue." D.C. Code § 7-1202.07 (a); see also D.C. Code § 7-1201.01 (15) (defining "[t]hird-party payor" as "any person who provides . . . medical . . . benefits whether on an indemnity, reimbursement, service or prepaid basis, including, but not limited to, insurance carriers, governmental agencies and employers"). Disclosure under this provision requires the client's written authorization or consent. D.C. Code §§ 7-1202.02 (a), -1202.07 (a).

         The MHIA provides additional protection to "personal notes regarding a client." D.C. Code § 7-1201.03. Specifically,

such personal notes shall not be maintained as a part of the client's record of mental health information. Notwithstanding any other provision of this chapter, access to such personal notes shall be strictly and absolutely limited to the mental health professional and shall not be disclosed except to the degree that the personal notes or the information contained therein are needed in litigation brought by the client against the mental ...

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