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MCCORMICK v. ENGLAND11/17/1997
Sally McCormick filed a complaint alleging that her physician, Kent England, breached a duty of confidentiality by disclosing information about her emotional health during a divorce proceeding involving her former husband. The special circuit court judge struck the allegation from the complaint, finding it did not state a cause of action. McCormick appeals. We hold South Carolina shall recognize a cause of action for a physician's breach of a duty of confidentiality. Accordingly, we reverse and remand.
FACTUAL/PROCEDURAL BACKGROUND
Dr. England was the family physician for McCormick, her former husband, and their children. McCormick and her husband became involved in a divorce action in which custody of the children was at issue. In support of his Motion for Emergency Relief and a Restraining Order, McCormick's husband submitted two letters to the family court regarding McCormick's emotional status. One letter was from a licensed social worker, defendant Michael Meyers, who alleged that McCormick had a severe drinking problem which caused her to be a danger to herself and to her family. The other letter was prepared by Dr. England and was addressed "To Whom It May Concern." In his letter, Dr. England diagnosed McCormick as suffering from "major depression and alcoholism, acute and chronic." Further, Dr. England stated the children had experienced school difficulties due to the family
McCormick brought this action for negligence, libel, invasion of privacy, outrage, breach of confidence, and civil conspiracy against Dr. England and Meyers. She alleged in her fifth cause of action for breach of confidence that Dr. England and Meyers had breached "a duty of non-disclosure of confidential communications with the plaintiff concerning her mental health conditions" by publishing and disseminating these confidential communications to the public "in direct contravention of South Carolina statutory law." Specifically, McCormick alleged a duty of confidentiality existed pursuant to S.C. Code Ann. § 19-11-95 (Supp. 1996), entitled "Confidences of patients of mental illness or emotional conditions."
Dr. England filed a motion to strike the fifth cause of action for breach of confidence on the basis the facts alleged failed to constitute a cause of action. At the hearing on the motion, McCormick additionally relied on the Physicians' Patient Records Act, S.C. Code Ann. §§ 44-115-10 to -150 (Supp. 1996), which prohibits the disclosure of medical records without the patient's consent.
The judge granted the motion to strike the breach of confidence action as to Dr. England, stating, "It is well known that South Carolina does not recognize the physician-patient privilege at common law." The judge found there was no statutory duty of confidentiality alleged that was applicable to Dr. England. The judge noted that, under its terms, § 19-11-95 applies only to licensed psychologists, counselors, family therapists, social workers, and registered nurses. Therefore,
McCormick filed a motion to alter or amend the order in which she argued that a physician's duty of confidentiality exists under the common law, and that her cause of action should not have been stricken if she was entitled to recovery under any theory. The judge denied the motion, stating he would have considered allowing McCormick to amend her pleadings to allege a cause of action for common law breach of confidence, but that he was not convinced such a duty exists since South Carolina does not recognize the physician-patient privilege. He also noted that any damages which might be recovered could be recovered under her claim for invasion of privacy. Finally, the judge found that even if a cause of a
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