THE CIRCUIT COURT OF THE CITY OF ROANOKE J. Christopher
ARTHUR KELSEY JUSTICE
Parker sued Carilion Clinic, Carilion Healthcare Corporation
(collectively, "Carilion"), and two Carilion
employees, Christy Davis and Lindsey Young, claiming that
they had disclosed her confidential medical information to
others. Parker served process on Carilion but did not serve
Davis or Young. The circuit court granted Carilion's
demurrers and dismissed all of Parker's claims against
it, which included both vicarious and direct liability
claims. Parker challenges that holding on appeal. We agree
with Parker that the circuit court should not have dismissed
her vicarious liability claim on demurrer, but we agree with
Carilion that the circuit court correctly dismissed the
direct liability claims.
complaint, Parker claimed that she had been diagnosed with a
medical condition at Rocky Mount Obstetrics &
Gynecology. J.A. at 2. Almost seven months later, she
visited her primary care physician at Rocky Mount Family
Practice for treatment unrelated to her previous diagnosis.
Carilion owned and operated both healthcare facilities. While
awaiting treatment at Rocky Mount Family Practice, Parker
spoke with an acquaintance, Trevor Flora, in the waiting
room. Davis, a Carilion employee working at Rocky Mount
Family Practice, saw Parker conversing with Flora, with whom
she also was acquainted.
accessed Parker's confidential medical information and
discovered Parker's previous diagnosis. Davis then
contacted her friend Young, who was a Carilion employee
working at a third facility and who also knew Flora. Davis
told Young that Parker was at Rocky Mount Family Practice
conversing with Flora and disclosed Parker's previous
diagnosis to Young. Young then accessed Parker's
confidential medical information and confirmed Davis's
disclosure. Young thereafter disclosed Parker's previous
diagnosis to Flora, who revealed the disclosure to Parker.
complaint alleged that Davis, Young, and Carilion had
disclosed her confidential medical information in breach of
the tort duty that we recognized in Fairfax Hospital v.
Curtis, 254 Va. 437, 442 (1997). She based her
unauthorized-disclosure claim against Carilion on two
theories: (i) Carilion was vicariously liable under
respondeat superior principles for the breach by Davis and
Young of their duties not to disclose and (ii) Carilion was
directly liable because it failed to secure her confidential
medical information from unauthorized access and disclosure,
as evidenced by Davis and Young's acts.
also asserted a negligence per se claim against Carilion. She
based this claim on the theory that the federal Health
Insurance Portability and Accountability Act of 1996, Pub. L.
No. 104-191, 110 Stat. 1936 (codified as amended in scattered
sections of 26, 29, and 42 U.S.C.) ("HIPAA"),
imposed statutory requirements that Carilion violated by
failing to secure, and thus protect from unauthorized
disclosure, her confidential medical information. Parker
argued that Code § 8.01-221 converted these statutory
violations into a negligence per se claim under Virginia law.
answer, Carilion admitted that Davis and Young were its
employees at the time that they accessed and disclosed
Parker's confidential medical information. In its
demurrer to the unauthorized-disclosure count, however,
Carilion argued with respect to Davis and Young that they
acted outside the scope of their employment, precluding
Parker's respondeat superior claim as a matter of law.
Carilion also contested the legal viability of Parker's
direct liability claims, in which she had asserted a breach
of the non-disclosure duty recognized in Fairfax
Hospital and negligence per se based upon HIPAA
October 25, 2016, the circuit court entered an order
sustaining Carilion's demurrers but granting Parker 21
days within which to amend her complaint. The order provided
that if she did not do so, "the case is dismissed with
prejudice." J.A. at 80. Parker did not amend her
complaint but instead filed a notice of appeal on December 2,
Rule 1:1 & the Notice of Appeal
threshold matter, Carilion asserts that Parker failed to file
her notice of appeal within 30 days from the entry of the
final order as required by Rule 5:9(a). Under Rule 1:1,
Carilion reasons, the final order was entered on the date
that it was signed, notwithstanding the fact that the order
provided Parker 21 additional days within which to file an
amended complaint. Although we held in Norris v.
Mitchell that an order sustaining a demurrer and
dismissing the case unless the plaintiff files an amended
complaint within a specified period of time does not become
final until the time for amendment lapses,
see 255 Va. 235, 239-40 (1998), Carilion argues that
Rule 1:1's definition of when such an order is
entered controls for the purpose of the 30-day
deadline that Rule 5:9(a) imposes. We disagree.
5:9(a) provides in relevant part that
[n]o appeal shall be allowed unless, within 30 days after the
entry of final judgment or other appealable order or decree,
or within any specified extension thereof granted by this
Court pursuant to Rule 5:5(a), counsel for the appellant
files with the clerk of the trial court a notice of appeal
and at the same time mails or delivers a copy of such notice
to all opposing counsel.
requirement is "mandatory, not merely directory."
School Bd. v. Caudill Rowlett Scott, Inc., 237 Va.
550, 556 (1989). In Norris, we considered whether
the circuit court had authority under Rule 1:1 to grant a
nonsuit. See 255 Va. at 239. The circuit court
entered an order on June 20 sustaining a demurrer and
dismissing the case unless the plaintiffs filed an amended
motion for judgment by July 8. See id. at 238. On
July 15, the plaintiffs filed a motion for nonsuit, which the
court granted, but they never filed an amended motion for
judgment as the June 20 order had required. See id.
Because July 15 was later than 21 days after June 20 but
sooner than 21 days after July 8, we directly answered the
question whether Rule 1:1's 21-day period began to run on
June 20 (when the order was entered) or on July 8 (when the
entered order became final).
ruled that the circuit court retained jurisdiction until 21
days after July 8 because an order merely sustaining a
demurrer is not final, but an order dismissing a case is
final. See Norris, 255 Va. at 239 (citing Bibber
v. McCreary, 194 Va. 394, 395 (1952)); Commercial
Bank of Lynchburg v. Rucker, 24 S.E. 388, 388 (1896).
Furthermore, a trial court may enter an order dismissing a
case if an amended complaint is not filed before a specified
deadline. See Norris, 255 Va. at 239 (citing
London-Va. Mining Co. v. Moore, 98 Va. 256, 257
(1900)). In such cases, there is no dismissal if the
plaintiff files the amended complaint before the deadline,
and the order thus never becomes final. Dismissal - and
finality - occur only when the deadline expires without the
filing of an amended complaint. See generally Kent
Sinclair & Leigh B. Middleditch, Jr., Virginia Civil
Procedure § 9.6, at 740 (6th ed. 2014) ("A court
order sustaining or overruling a demurrer does not, of
itself, result in a final judgment; there must also be either
a failure by the plaintiff to amend within the time allowed
by the court or a direct dismissal of the case by the
not analyzed in Norris, the commencement of the
30-day period for filing a notice of appeal requires
"the entry of [a] final judgment or other
appealable order or decree," Rule 5:9(a) (emphasis
added), and Norris, Bibber,
London-Virginia Mining Co., and Commercial Bank
of Lynchburg all decisively hold that an order merely
sustaining a demurrer without dismissing the case is not
final. Consequently, the 30-day period provided by Rule
5:9(a) does not begin to run in the absence of a final order,
and in the case before us, no final order existed until the
deadline for filing an amended complaint had expired. Absent
a statutory provision stating otherwise, an order must be
both entered and final before the 30-day
period for filing a notice of appeal commences. Thus,
Parker's notice of appeal was timely.
reviewing an order granting a demurrer, we accept as true all
factual allegations expressly pleaded in the complaint and
interpret those allegations in the light most favorable to
the claimant. See Coutlakis v. CSX Transp., Inc.,
293 Va. 212, 215 (2017). "Two important limitations on this
principle, however, deserve emphasis." Coward v.
Wellmont Health Sys., 295 Va. 351, 358 (2018).
First, while we also accept as true unstated inferences to
the extent that they are reasonable, we give them no
weight to the extent that they are unreasonable. The
difference between the two turns on whether "the
inferences are strained, forced, or contrary to reason,"
and thus properly disregarded as "arbitrary
inferences." Second, we must distinguish allegations of
historical fact from conclusions of law. We assume the former
to be true arguendo, but we assume nothing about the
correctness of the latter because "we do not accept the
veracity of conclusions of law camouflaged as factual
allegations or inferences." "Instead, we review all
conclusions of law de novo." Id. at 358-59
(emphases in original) (footnote and citations omitted).
appeal, Parker contends that the circuit court erred in
granting the demurrers because she adequately pleaded four
distinct causes of action:
• Tort claims against Davis and Young individually for
breach of the "health care provider" duty of
non-disclosure recognized in Fairfax Hospital.
See Appellant's Suppl. Br. at 3-6.
• A respondeat superior claim against Carilion, as Davis
and Young's employer, that alleged vicarious liability
for the employees' torts. See Appellant's
Br. at 16-19; Appellant's Suppl. Br. at 7-11.
• A direct claim against Carilion for breach of the
"health care provider" duty of non-disclosure
recognized in Fairfax Hospital. See
Appellant's Br. at 16-19.
• A direct claim against Carilion alleging negligence
per se based upon violations of federal HIPAA provisions.
See id. at 20-22.
address these arguments in the same sequence.
Claims Against Davis & Young Individually
pleaded tort claims against Davis and Young individually,
asserting that they were "healthcare providers" and
thus owed a duty under Fairfax Hospital not to
disclose her confidential medical information without her
authorization. See J.A. at 4-5. On appeal, Parker
argues in her first assignment of error that the circuit
court "erred in ruling there is no cause of action under
Virginia law against an employee of a healthcare provider
when the employee makes an extra-judicial disclosure of
sensitive confidential personal health information without
the authorization of the patient-plaintiff."
Appellant's Suppl. Br. at 1 (altering capitalization).
circuit court, however, never addressed whether a viable
cause of action existed against Davis and Young individually.
Instead, the court held only that Carilion could not be
liable under respondeat superior principles because, based on
Parker's allegations, Davis and Young had acted outside
the scope of their employment. Parker nonetheless contends
that we should address the issue given its importance to the
underlying issue of respondeat superior
we appreciate Parker's concerns,  we cannot address them in
the present appeal. Rule 5:17(c)(1)(iii) requires an
assignment of error to "address the findings or rulings
in the trial court or other tribunal from which an appeal is
taken." See Wright v. Commonwealth, 292 Va.
386, 393-94 (2016), cert. denied, __U.S.__, 137
S.Ct. 1442 (2017). For these reasons, we dismiss this
assignment of error and offer no opinion on the question
whether Parker's complaint alleged facts that, if true,
would prove that Davis and Young qualified as
"healthcare providers," J.A. at 4, for purposes of
personal liability under Fairfax
Carilion's Vicarious Liability
asserts that the circuit court erred by ruling as a matter of
law that Carilion was not vicariously liable for Davis and
Young's tortious acts. She contends that when Carilion
"admitted . . . that Davis and Young were its
employees," there arose a rebuttable presumption that
Davis and Young were acting within the scope of their
employment when they committed the alleged tort. See
Appellant's Suppl. Reply Br. at 2; see also Majorana
v. Crown Cent. Petroleum Corp., 260 Va. 521, 526
acknowledges the rebuttable presumption but contends that the
cases cited by Parker apply only when considering "the
evidentiary burden at trial, not whether the plaintiffs'
complaints alleged facts sufficient to state a vicarious
liability claim." Appellees' Suppl. Br. at 17-18.
And even if those cases apply at the pleading stage, Carilion
adds, Parker's own pleadings, coupled with the factual
interpretations that she advocates on appeal, show "that
the defendant could not, as a matter of law, be held
vicariously liable." Id. at 18; see
also Oral Argument Audio at 18:04 to 18:11 (arguing that
"there has to be more . . . than just asserting magic
words of employer-employee relationship"); id.
at 18:32 to 18:36 (arguing that Parker pleaded herself out of
the presumption because of "the information that's
not provided" in the complaint).
Carilion's first point, we disagree that the presumption
applies only at trial and has no role at the pleading stage
of the case. There has always been in law a symmetry between
pleadings and proof. On essential matters, the latter can go
no further than the former. See Ted Lansing Supply Co. v.
Royal Aluminum & Constr. Corp., 221 Va. 1139, 1141
(1981) ("Pleadings are as essential as proof, the one
being unavailing without the other." (citation
omitted)); Martin P. Burks, Common Law and Statutory Pleading
and Practice § 334, at 638 (T. Munford Boyd ed., 4th ed.
1952). A prima facie civil case - that is, the cluster of
factual and legal assertions, which, if true, would authorize
a judicial remedy - remains the same from the beginning of a
judicial proceeding to its end. A demurrer, a motion for
summary judgment, a motion to strike, and a motion to set
aside a verdict all use the same definition of a prima facie
case when the question presented is the legal sufficiency of
discussion, we applied the rebuttable presumption at the
demurrer stage in Plummer v. Center Psychiatrists,
Ltd., 252 Va. 233, 235-36 (1996). We elaborated on the
point in Majorana. In that case, a pleading
asserting an employer's liability under the doctrine of
respondeat superior alleged an employment relationship. The
employer filed a motion for summary judgment that relied only
on the allegations in the claimant's pleading "to
support its argument that [the employee] was acting outside
the scope of his employment." Majorana, 260 Va.
that summary judgment was improper because the rebuttable
presumption arising out of the complaint supplied
the necessary permissible inference that the tortfeasor had
acted within the scope of his employment. See id. at
527 (stating that "[t]he sole issue . . . was whether
the trial court erred by holding, as a matter of law, that
the [pleading] did not state the necessary elements of
respondeat superior within its factual allegations");
see also Plummer, 252 Va. at 237. Plummer
and Majorana confirm the proper timing of the
scope-of-employment presumption. It begins with the
complaint, not the presentation of evidence at trial.
Carilion's second point, that Parker's complaint and
its factual inferences themselves rebutted the presumption,
the resolution of that issue depends on what the presumption
actually presumes. Quite a lot, apparently, if we were to
grant Parker's requested remedy: "Upon remand,"
Parker argues, the circuit court "should be instructed
that when an employee is allowed access to medical
information as part of their employment with a health care
provider, and the employee wrongfully distributes or
discloses such confidential information, they are acting
within the scope of their employment as a matter of
law." Appellant's Suppl. Br. at 8.
Parker's perspective, neither her complaint nor its
factual inferences could possibly provide a basis for
self-refutation because "[u]nder these facts there is
respondeat superior liability of the master-employer as a
matter of law." Id. at 9. In response, Carilion
argues that Parker "has affirmatively alleged facts
demonstrating that [Davis and Young] were not acting
within the scope of their employment," and thus, the
circuit court properly dismissed the complaint as a matter of
Appellees' Suppl. Br. at 19 (emphasis in original).
cannot fully agree with either Parker or Carilion.
is opposed to making one man pay for another man's
wrong." Oliver Wendell Holmes, Jr., Agency, 5
Harv. L. Rev. 1, 14 (1891). On the strength of this premise,
we have insisted that "[a] master is not liable for
every wrong which a servant may commit during the continuance
of an employment." E.H. Abernathy v. Romaczyk,
202 Va. 328, 332 (1960) (citation omitted); see also
McNeill v. Spindler, 191 Va. 685, 694 (1950) (same).
Virginia has not recognized such an omnipotent form of
vicarious liability. See, e.g., Appalachian
Power Co. v. Robertson, 142 Va. 454, 466 (1925)
(stating that "if the act be done while the servant is
at liberty from service, and pursuing his own ends,
exclusively, there can be no question of the freedom from
liability, even if the injury could not have been committed
without facilities afforded to the servant by his relations
to the master" (citation omitted)). Instead, under the
traditional "doctrine of respondeat superior, an
employer is liable for the tortious act of his employee if
the employee was performing his employer's business and
acting within the scope of his employment."
Kensington Assocs. v. West, 234 Va. 430, 432 (1987).
the doctrine in such low-resolution terms, however, has led
to "difficulties" in its application, Giant of
Md., Inc. v. Enger, 257 Va. 513, 516 (1999), and has
proven to be conceptually "vexatious," Gina
Chin & Assocs. v. First Union Bank, 260 Va. 533, 541
(2000), and "perplexing," Kidd v. De Witt,
128 Va. 438, 443 (1920). Less charitable observations suggest
that the "highly indefinite" scope-of-employment
"devoid of meaning in itself" and is
"obviously no more than a bare formula to cover the
unordered and unauthorized acts of the servant for which it
is found to be expedient to charge the master with liability,
as well as to ...