Background Facts
J.J., a minor child, alleged that Poplar Bluff Regional Medical Center, L.L.C. (“PBRMC”) was a health care provider, and that in January of 2021 he received in-patient mental health treatment with PBRMC. While J.J. was a patient, an employee of PBRMC (“Employee”) recognized J.J. as a schoolmate and former boyfriend of her daughter. Although Employee was not involved in J.J.’s medical treatment, she accessed J.J.’s medical records, discovered his protected health information and his personally identifiable information (together, PHI and PII information), and then revealed to her daughter J.J.’s in-patient presence at PBRMC and the reason for his treatment. Employee’s daughter repeated J.J.’s medical information to other students at J.J.’s school, resulting in J.J. being harassed and bullied.
J.J. filed a lawsuit against PBRMC for the unlawful disclosure of his mental health information. PBRMC filed a motion to dismiss J.J.’s suit for damages based on his failure to file an affidavit of merit, as required by Section 538.225.1 in all cases against health care providers for damages resulting from the provision of health care services. The trial court agreed and dismissed J.J.’s claim for his failure to file an affidavit of merit pursuant to Section 538.225.1. J.J. appealed.
Section 538.225.1 provides: “In any action against a health care provider for damages for personal injury or death on account of the rendering of or failure to render health care services, the plaintiff or the plaintiff’s attorney shall file an affidavit with the court stating that he or she has obtained the written opinion of a legally qualified health care provider which states that the defendant health care provider failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that such failure to use such reasonable care directly caused or directly contributed to cause the damages claimed in the petition.”
Missouri Appellate Court Opinion
In its opinion filed on September 26, 2023, the Missouri Court of Appeals Eastern District Division Three (“Missouri Appellate Court”) stated: “J.J. alleged that PBRMC breached its fiduciary duty of confidentiality towards him, breached their implied contract to keep his medical information confidential, violated the MMPA, was generally negligent in its protection of his PHI and PII information, was negligent in its training and supervision of its employees, and was negligent per se under HIPAA and HITECH.”
“Missouri case law recognizes that physicians owe their patients a fiduciary duty of confidentiality not to disclose any medical information received in connection with the treatment of the patient, and it allows a cause of action for damages in tort based on the breach of that duty … This duty to maintain confidential medical records applies to all employees in a health care setting, and the health care provider has a statutory duty under HIPAA and HITECH to establish and enforce procedures to ensure its employees likewise comply with this duty of confidentiality … In addition to actions in tort, a health care provider’s breach of confidentiality arguably can also give rise to liability under the MMPA.”
“J.J.’s true claims stem solely from PBRMC’s breach of confidentiality. The purpose of Section 538.225.1 is to weed out meritless medical malpractice lawsuits … J.J.’s action here against PBRMC is for breach of its duty of confidentiality, and not an action for medical malpractice.”
“PBRMC is a health care institution and its purpose is to provide professional medical treatment. Medical treatment necessarily involves the exercise of professional medical judgment that complies with a reasonable standard of medical care. By contrast, the keeping of confidential medical records in a health care setting is an administrative duty incidental to providing medical treatment, and it does not involve the application of professional medical judgment that complies with a reasonable standard of medical care. Resolution of J.J.’s claim here does not involve determining whether PBRMC exercised professional medical judgment that fell below the standard of reasonable medical care when providing J.J. medical treatment … Rather, Employee, who accessed and disseminated J.J.’s PHI and PII information, was not involved in his health care, and the record does not suggest her dissemination of his PHI and PII information was related to her, or anyone else’s, professional medical judgment. Instead, J.J.’s recitation of fact, which we accept as true on appeal … suggests that Employee’s dissemination of his confidential medical information was more akin to an act of gossip.”
“Even though Employee’s failure to preserve the confidentiality of J.J.’s PHI and PII information occurred at a health care institution, the failure was not related to J.J.’s medical treatment and did not involve a question of medical judgment, and thus PBRMC’s breach of confidentiality cannot be considered a failure to render a “health care service”
within the meaning of Section 538.225.1.”
Source J.J. v. Poplar Bluff Regional Medical Center, L.L.C., No. ED111339.
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