Unauthorized Access To Medical Records Not Medical Malpractice: A lawsuit filed by patients who claimed that a nurse who was provided access to patient medical records by a hospital as part of her job accessed their medical records without their consent alleged, in part: CRH gave Johnson-Heck clinical privileges. Between January 2014 and June 2015, Johnson-Heck allegedly used her CRH-granted privileges to access medical records of twenty-three individuals who were not her patients. She accessed Plummer’s records on May 2, 2014, and Stillabower’s records on June 3, 2014; July 16, 2014; August 5, 2014; and June 20, 2015.
Stillabower and Heck (Johnson-Heck’s then current husband) were embroiled in a custody/visitation disagreement when Johnson-Heck and Heck via text message and emails revealed to Stillabower that they knew some of Stillabower’s personal medical information. Stillabower contacted CRH to voice her suspicion that someone had accessed her protected health information. CRH’s investigation revealed Johnson-Heck’s access to Stillabower’s records as early as June 29, 2016, but CRH did not notify Stillabower of the nature and extent of the breach until early October 2016. In early October 2016, Plummer received a letter from CRH notifying her about Johnson-Heck’s unauthorized access into her medical records.
The plaintiffs filed an amended complaint that alleged CRH was vicariously liable for Johnson-Heck’s breach of their privacy, CRH was liable for negligent training and supervision of Johnson-Heck, CRH was liable for its own inadequate protection of confidential patient information, Johnson-Heck was liable for “negligence, breach of professional duty, invasion of privacy by intrusion, invasion of privacy by public disclosure of private facts, intentional infliction of emotional distress, [and] negligent infliction of emotional distress[.]”
Not all claims by patients against healthcare providers fit within the Indiana Medical Malpractice Act (“MMA”) nor is the MMA intended to encompass cases of ordinary negligence. Instead, the MMA covers only “curative or salutary conduct of a health care provider acting within his or her professional capacity” and “not conduct unrelated to the promotion of a patient’s health or the provider’s exercise of professional expertise, skill, or judgment.”
Johnson-Heck’s legal submission to the Indiana Medical Review Panel admitted she “never provided care to either Plummer or Stillabower, nor did she ever have a practitioner-patient relationship with either of them.” Accordingly, her accessing of the plaintiffs’ medical records “lacks a temporal connection to any care provided” by CRH to the plaintiffs as patients. The Court of Appeals of Indiana held in its opinion filed on May 4, 2023: “Johnson-Heck’s use of her CRH privileges to access medical records of Appellants, who were not her patients, “was unrelated to any professional service executed on their behalf as [CRH] patients.” See McKenzie, 185 N.E.3d at 376. Moreover, to the extent CRH was exercising professional judgment when designing “protocols for creating, maintaining, and accessing patient information[,]” id., those professional services were not provided “to a patient.” See id. (holding Community’s professional judgments about policies around patient information systems were “directed inward to Community employees, not outward to its patients”). Appellants’ claim sounds in ordinary negligence rather than medical malpractice.”
Source Plummer v. Amy L. Beard, Commissioner of the Indiana Department of Insurance, Opinion 22A-CT-2559.
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