Tuesday, October 27, 2015
The West Virginia Supreme Court of Appeals has held that an employee of The Marshall University failed to establish an invasion of privacy claim on these facts
Approximately twelve years ago, petitioner underwent a mastectomy and reconstructive surgery on her left breast that included the insertion of an implant. Several years later, petitioner grew concerned about the appearance of the reconstruction and the possibility that the implant had ruptured or shifted. In October of 2010, petitioner consulted with Adel A. Faltaous, M.D., a plastic surgeon employed by respondent, to inquire about whether she should undergo corrective surgery. As part of petitioner’s examination, photographs were taken of her naked breasts, from “just below the breasts to about the neck.” Petitioner’s face was not photographed, but her name was written on the picture. The purpose of the photographs was, in part, to obtain authorization from petitioner’s insurance carrier for the proposed surgery. Petitioner understood that the proposed surgery would have to be preauthorized by her insurance company.
A few days later, one of Dr. Faltaous’s employees sent a letter to petitioner’s employer seeking preauthorization for petitioner’s surgery because the employee mistakenly believed that such requests were to be sent there. The letter included the aforementioned photographs of petitioner and was opened by an assistant in the human resources department at petitioner’s work. After reading the letter and viewing the photographs, 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. Instead, he directed the assistant to return the photographs to petitioner. The photographs were sealed in an envelope, marked “confidential,” and hand-delivered to petitioner. When petitioner opened the envelope, the photographs fell face-down on her desk. There is no evidence that anyone saw the photographs after they fell on the desk.
The court found that the situation might be embarrassing but was not actionable.
Justice Benjamin disageed
In the instant case, I believe that Ms. 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. Further, the defendant’s publication of photographs of Ms. Mays’ naked breasts among her coworkers, although unintentional, was unreasonable.
And Justice Davis
Linda Mays, a breast cancer survivor who had undergone a mastectomy and reconstruction, consulted Dr. Faltaous regarding further reconstructive surgery. During this medical consultation, photographs were taken of Ms. Mays’ exposed torso to be used for the limited purpose of medical confidential photographs to Ms. Mays’ employer, where they were viewed by two of Ms. Mays’ coworkers. Because Ms. Mays regularly sees those coworkers, 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. 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.