LITTLE ROCK — A Pulaski County circuit judge said Tuesday that he’ll decide within 10 days whether an invasion-of-privacy lawsuit over unauthorized access to the hospital records of murdered television personality Anne Pressly should go to trial or be thrown out of court.
Circuit Judge Leon Johnson concluded an hour-long hearing on the case Tuesday — three weeks before the third anniversary of the 26-year-old KATV, Channel 7, news anchor’s rape and slaying by an intruder in her Heights neighborhood home — by promising to make a ruling by Oct. 14. The suit was filed by Pressly’s mother, Patricia Cannady against St. Vincent Infirmary Medical Center, a doctor and two former employees.
Cannady filed the suit two years ago after the doctor and former employees admitted to illegally looking at Pressly’s medical records, for which they were convicted of misdemeanor violations of federal medical privacy laws.
In the October 2009 lawsuit, Cannady claims that unauthorized personnel reading her daughter’s medical records constitutes an invasion of privacy that was so “extreme” and “outrageous” that it “was beyond all possible bounds of decency and was utterly intolerable in a civilized community.”
The suit alleges that the doctor, the ex-staff members and possibly other hospital workers are guilty of privacy violations and “outrageous” behavior with the hospital being negligent in failing to prevent unauthorized access to its medical records. Cannady, as executor of Pressly’s estate, is seeking unspecified damages.
On Tuesday, attorneys for both sides offered differing views of the case.
Lawyers for the hospital, ex-staff members and doctor urged Johnson to throw out the case, arguing that they have 128 years of court precedent on their side mandating that Johnson rule on their behalf. The Cannady lawyers countered that the issues raised by the case have never been reviewed by an Arkansas court and will likely have to be decided by the Arkansas Supreme Court.
On behalf the hospital, attorney Beverly Rowlett said courts in Arkansas, both federal and state, have regularly ruled since the 19th century that lawsuits claiming outrage and invasion of privacy expire with the death of the individual who could claim to have been harmed.
“The plaintiffs are asking the court to ignore a line of case law that extends back to 1883,” Rowlett told the judge.
The state’s Survival Statute, Arkansas Code 16-62-101, explicitly bars libel and slander lawsuits on behalf of deceased people, she argued. She also said that the law has been interpreted by the courts to include other actions, such as malicious prosecution. Acknowledging there’s no direct precedent involving the privacy and outrage complaints of Cannady, Rowlett said the courts have clearly acted to bar those actions that seek to address emotional injuries on behalf of deceased people.
The law only allows tangible injuries — whether to people or property — to survive the death of the injured party, the attorneys argued. With no direct evidence of damage available — since the person is deceased — juries would be forced to speculate about the extent of injury, said attorney Timothy Boone, representing Jay Holland, the doctor.
“Why is this law?” Boone asked the judge. “Because how in the world would you prove [emotional damage] without the person allegedly harmed? It would be wholly speculative for someone else to testify what that damage would be.”
Arguing on behalf of Cannady and Pressly’s family, attorney Gerry Schulze said the lawsuit breaks new ground without overturning established precedent.
Schulze argued that the defendants are relying too heavily on court precedents that don’t directly apply to the accusations of the lawsuit. Some of those cases cited by the defense, an 1883 ruling and another in 1913, are too old to be applicable, he argued.
He said the Survival Statute, as interpreted by the Arkansas Supreme Court, allows all lawsuits to extend past the death of the injured party, with the exception of actions for libel, slander and injury to reputation. If a claim is not barred by statute, Schulze argued, then it should be allowed.
In October 2008, Cannady, alarmed when her daughter didn’t answer the phone, arrived at Pressly’s home to find Pressly bloody and unconscious in bed, suffering brain damage so severe she was almost brain dead on arrival at St. Vincent’s.
Pressly never regained consciousness and died five days later.
The October 2008 death of the TV reporter, raped and fatally beaten in an upscale Little Rock neighborhood, and the month-long police investigation that followed and the subsequent prosecution of a 28-year-old Lee County man captured statewide attention.
DNA from a single hair found on Pressly’s bed led investigators to Curtis Lavelle Vance, an admitted smalltime burglar and petty thief from Marianna. Vance admitted to police that he attacked Pressly during a break-in.
Vance was convicted of rape and capital murder after a nine-day trial in November 2009 and sentenced to life in prison after jurors declined to impose the death penalty. His conviction was upheld in June by the Arkansas Supreme Court.
In August, Vance, representing himself, filed a handwritten petition challenging his conviction and sentence, claiming his attorneys were incompetent, but no action has been taken in response to the petition.
Arkansas, Pages 9 on 10/05/2011