April 9, 2022

The Court of Appeals of Indiana (“Indiana Appellate Court”) discussed medical privacy issues and possible causes of action for violating a patient’s medical privacy in its opinion dated February 15, 2022 in a case where plaintiff Amanda Henry (“Henry”) filed claims against a hospital alleging invasion of privacy by intrusion into emotional seclusion, invasion of privacy by public disclosure of private facts (PDPF), and negligent retention.

Henry had injured the tip of her ring finger on her right hand while closing a sliding glass door and sought treatment at the defendant hospital the next day. Henry’s employer (“Linda”) shared a photo of Henry’s injured finger with Linda’s husband (“Ken”), who was employed as a radiologic technician with the defendant hospital, who suggested treatment options for Henry’s injury. Ken was not a part of Henry’s care team and did not perform the x-ray but accessed the x-ray images and texted them to his wife, who showed Henry the images when she returned to work. In her deposition, Henry described the feelings she had about the access of her medical records, her issues with trust, and feeling that her privacy had been breached.

Henry filed her complaint against the hospital, alleging negligence in its failure to protect the “privacy, security, and confidentiality of health records generated or maintained by providers within its network.” The trial court granted the hospital’s motion for summary judgment finding: (1) Henry’s claims for invasion of privacy by means of intrusion upon emotional seclusion and public disclosure of private facts are not recognized in Indiana; (2) there is no provision for recovery for emotional damages without satisfying the modified impact rule, which Henry, on the facts set forth, does not satisfy; and (3) any negligent retention claim fails because the designated materials reveal nothing in the spouse’s background that would raise a red flag or prevent him from being hired . . . there is nothing in the spouse’s employment disciplinary record, consisting mainly of parking violations and tardiness, that would suggest that he had a disciplinary history of conduct dangerous to others or would disclose confidential patient information.

Indiana Appellate Court Opinion

Invasion Of Privacy

One who intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. The tort of invasion of privacy includes (1) intrusion upon seclusion, (2) appropriation of likeness, (3) public disclosure of private facts, and (4) false light publicity.

The Indiana Appellate Court stated with regard to Henry’s invasion of privacy claim: “Henry’s claims here are ones for emotional injuries related to her intrusion claim, which are not recognized in Indiana appellate decisions involving invasion of privacy by intrusion into emotional seclusion or solace. We acknowledge that certain health information is meant to remain private and that there are laws protecting against the disclosure of same, most notably the Health Insurance Portability and Accountability Act of 1996. Henry makes a good argument as to why intrusion into emotional solace in general should be recognized, especially in terms of medical breaches. Yet, in her particular case, we cannot grant her the relief she seeks. Invasion of privacy by intrusion into emotional seclusion or solace is not recognized. The court did not err.”

Public Disclosure Of Private Facts

Public disclosure of private facts (“PDPF”) occurs when a person gives ‘publicity’ to a matter that concerns the ‘private life’ of another, a matter that would be ‘highly offensive’ to a reasonable person and that is not of legitimate public concern. Further, a communication to a single person or to a small group of persons is not actionable because the publicity element requires communication to the public at large or to so many persons that the matter is substantially certain to become one of public knowledge. The release of the information to even two co-workers does not satisfy the publicity requirement articulated in the Restatement.

The Indiana Appellate Court held: “because PDPF had not been recognized in Indiana, the trial court did not erroneously dismiss that plaintiff’s PDPF claim … [a]dditionally, assuming for the sake of argument that Henry’s PDPF claim was viable, the court would nonetheless be correct in granting summary judgment in favor of Community under the facts before us. One of the legs of publication is missing. Here, Henry shared the fact that she had injured her finger and was going to seek treatment at the Hospital. She texted a photograph of her injured finger in a splint to Linda [her employer] from the Hospital. Therefore, the fact of Henry’s particular injury was not private as to Linda. The information that Ken shared with Linda was merely cumulative of the information Henry had already shared with her … The record reveals that Ken and Linda’s intent was to be helpful. We have held that release of information to even two co-workers does not satisfy the publicity requirement.”

Negligent Retention

Negligent hiring and retention claims consist of the traditional elements found in negligence actions: (1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) an injury proximately caused by the breach of that duty. The determination whether a duty of care is to be imposed also involves a consideration of three factors: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy concerns.

The Indiana Appellate Court held that the trial court “properly concluded that no duty could be imposed based on an examination of Ken’s prior instances of misconducting himself by receiving notice of parking violations and by repeatedly being tardy. Had Henry argued that her damages were caused by Ken’s tardiness or by an incident in the parking lot, and that Community was aware of Ken’s conduct in that regard, that might have been a different story. However, that is not the case here … Even Ken’s worst offense as reported in his disciplinary history reveals that he performed an x-ray on the wrong patient. This misconduct would not have alerted Community to the behavior at issue here, nor would his history of tardiness and parking violations. We conclude that the court correctly entered summary judgment in favor of Community on this claim.”

The Indiana Appellate Court further stated that “independent stand-alone actions for negligent infliction of emotional distress are not cognizable in Indiana.”

Source Henry v. Community Healthcare System Community Hospital, 21A-CT-2150.

If you or a loved one were harmed as a result of the unauthorized disclosure of your medical records in Indiana or in another U.S. state, you should promptly find an Indiana medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your claim for the unauthorized disclosure of your confidential health information and represent you or your loved one in an unauthorized disclosure of your medical records case, if appropriate.

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