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Lawson v. Patricia Halpern-Reiss and Central Vermont Medical Center

Supreme Court of Vermont

May 17, 2019

Elizabeth Lawson
v.
Patricia Halpern-Reiss and Central Vermont Medical Center

          On Appeal from Superior Court, Washington Unit, Civil Division Mary Miles Teachout, J.

          David C. Sleigh and Kyle L. Hatt of Sleigh Law, St. Johnsbury, for Plaintiff-Appellant.

          Nicole Andreson and Angela R. Clark of Dinse, Knapp & McAndrew, P.C., Burlington, for Defendant-Appellee Central Vermont Medical Center.

          PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Howard, Supr. J. (Ret.), Specially Assigned

          EATON, J.

         ¶ 1. In this appeal, we are asked to recognize a common-law private right of action for damages resulting from the unjustified disclosure to a third party of information obtained by medical personnel during treatment. Plaintiff alleges in her lawsuit that she incurred damages as the result of an emergency room nurse informing a police officer that she was intoxicated, had driven to the hospital, and was intending to drive home. The trial court granted defendant Central Vermont Medical Center (CVMC) summary judgment based on its determination that nothing in the record supported an inference that the nurse's disclosure of the information was for any reason other than her good-faith concern for plaintiff's and the public's safety. In this opinion, we recognize a common-law private right of action for damages based on a medical provider's unjustified disclosure to third persons of information obtained during treatment. Like the trial court, however, we conclude that CVMC was entitled to judgment as a matter of law because, viewing the material facts most favorably to plaintiff and applying the relevant law we adopt today, we conclude that no reasonable factfinder could determine that the disclosure was for any purpose other than to mitigate the threat of imminent and serious harm to plaintiff and the public. Accordingly, we affirm the trial court's judgment. I. Facts and Procedural History

         ¶ 2. The following facts are taken from the parties' statements of undisputed material facts, viewing them most favorably to plaintiff, the nonmoving party.[1] During the early morning hours of May 10, 2014, plaintiff drove herself to CVMC after lacerating her arm. She arrived at the emergency room at 2:12 a.m. The charge nurse (Clinical Nurse Coordinator) detected a heavy odor of alcohol on plaintiff's breath, and it became apparent to the nurse that plaintiff had been drinking. Members of the treatment team administered an alco-sensor test to assess plaintiff's level of intoxication. The test revealed a breath-alcohol concentration of .215, over two and one-half times the legal limit, at 2:40 a.m.

         ¶ 3. Based on information provided by plaintiff, the charge nurse understood that plaintiff did not have a ride home. After her laceration was treated, plaintiff did not meet the criteria for admission to the hospital and was cleared for discharge. She was discharged at 3:05 a.m.

         ¶ 4. A police officer was on duty in the emergency room pursuant to a contract between CVMC and the Berlin Police Department. Shortly before plaintiff was discharged, the charge nurse approached the officer and informed him that plaintiff was blatantly intoxicated, [2] that she had driven herself to the hospital, and that she was about to drive herself home. After receiving this information from the charge nurse and communicating with plaintiff, the officer arrested her on suspicion of driving while intoxicated. The resulting criminal charge was later dismissed by the prosecutor.

         ¶ 5. In July 2016, plaintiff filed a complaint against the charge nurse and CVMC, alleging that she incurred damages as the result of (1) the nurse's negligent disclosure of information obtained during plaintiff's medical treatment, in violation of the standard of care applicable to medical providers; and (2) CVMC's inadequate training and failure to develop policies regarding the disclosure of information obtained during medical treatment.

         ¶ 6. In December 2017, following discovery, defendants moved for summary judgment. Regarding plaintiff's negligence claim against the charge nurse, defendants argued that this Court has never recognized a duty enforceable in a tort action not to disclose information obtained during medical treatment and that, even if such a duty existed, the nurse's disclosure of information in this case fully complied with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), see 42 U.S.C. § 1320d-6 (concerning wrongful disclosure of individually identifiable health information), because it was done to avert an imminent threat to plaintiff's and the public's safety. Defendants further argued that plaintiff could not prevail on her claim against CVMC because that claim was dependent upon the underlying claim against the charge nurse. In opposing summary judgment, plaintiff noted that the vast majority of jurisdictions have recognized a private right of action for damages resulting from the disclosure of information obtained during medical treatment. She argued that there were disputed material facts concerning whether the disclosure of the information in this case was necessary to protect plaintiff or the public.

         ¶ 7. In May 2018, the trial court granted summary judgment to CVMC.[3] After noting that the patient's privilege set forth in 12 V.S.A. § 1612 is an evidentiary privilege applicable only in judicial proceedings, see Kuligoski v. Brattleboro Retreat, 2016 VT 54A, ¶ 60, 203 Vt. 328, 156 A.3d 436, and that plaintiff had failed to identify any Vermont authority in support of a greater rule of confidentiality than that set forth in HIPAA, the court ruled that the disclosure at issue here did not violate HIPAA. In so ruling, the court relied on a HIPAA regulation permitting the disclosure of information based on the presumed good-faith belief that the disclosure was necessary to prevent a serious and imminent threat to the health or safety of a person or the public. In the court's view, there was no record basis for any reasonable inference that plaintiff's disclosure to an onsite police officer was for law enforcement purposes or any reason other than a good-faith concern for plaintiff's and the public's safety. Having found no negligence, the court granted CVMC summary judgment on both counts set forth in plaintiff's complaint.[4] II. The Claims of Error

         ¶ 8. On appeal, plaintiff argues that: (1) the trial court erred in holding that there is no common law remedy for a health care provider's breach of a duty of confidentiality; and (2) assuming there is such a remedy, the court erred in granting CVMC summary judgment insofar as there are material facts in dispute as to whether the nurse breached the duty of confidentiality regarding information obtained during the course of medical treatment. A. Private Right of Action

         ¶ 9. Plaintiff first argues that this Court should recognize a common-law private remedy for breach of a medical provider's duty of confidentiality concerning the disclosure of information obtained during medical treatment. Plaintiff seeks a common-law remedy because neither Vermont law nor HIPAA provides a private right of action to obtain damages incurred as the result of a medical provider's disclosure of information obtained during treatment. See Warren Pearl Constr. Corp. v. Guardian Life Ins. Co., 639 F.Supp.2d 371, 377 (S.D.N.Y. 2009) (collecting numerous federal court cases recognizing that no private right of action exists under HIPAA); Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C. (Byrne I), 102 A.3d 32, 41, 45 (Conn. 2014) (noting "the long line of federal and state cases establishing that there is no private right of action, express or implied, under HIPAA," which enforces its provisions through administrative imposition of fines and imprisonment); Bonney v. Stephens Mem'l Hosp., 2011 ME 46, ¶¶ 17, 19, 17 A.3d 123 (noting that all courts addressing issue have concluded that no private right of action exists under HIPPA, which provides only for administrative enforcement of its provisions).

         ¶ 10. On the other hand, although HIPAA serves in part to "protect the privacy of patients' health information given emerging advances in information technology," it does not preempt causes of action arising under state common or statutory law imposing liability for "health care providers' breaches of patient confidentiality." Byrne I, 102 A.3d at 35, 45-48 (citing federal and state courts holding that HIPAA does not preempt state law imposing liability over and above that authorized by federal law). Indeed, as many courts have recognized, HIPAA may act as a guidepost or otherwise "inform the relevant standard of care" for state law claims alleging unlawful disclosure of information obtained during medical treatment. Id. at 46-48, 49 (citing cases and concluding that "to the extent it has become the common practice for Connecticut health care providers to follow the procedures required under HIPAA in rendering services to patients, HIPAA and its implementing regulations may be utilized to inform the standard of care applicable to such claims arising from allegations of negligence in the disclosure of patients' medical records pursuant to a subpoena").

         ¶ 11. English common law did not afford patients a cause of action based on an expectation of privacy in information disclosed during medical treatment, Hammonds v. Aetna Cas. & Sur. Co., 243 F.Supp. 793, 795 n.1 (N.D. Ohio 1965), but the notion "that physicians should respect the confidences revealed by their patients in the course of treatment is a concept that has its genesis in the Hippocratic Oath." McCormick v. England, 494 S.E.2d 431, 435 (S.C. 1997). By the 1960s and 1970s, several courts had recognized a private right of action for damages resulting from medical providers' wrongful disclosure of information obtained during treatment, and currently the vast majority[5] of jurisdictions addressing whether to recognize such a cause of action have chosen to do so. See Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C. (Byrne II), 175 A.3d 1, 7, 11-15 (Conn. 2018) (discussing cases and joining clear modern consensus of courts recognizing private cause of action for damages resulting from unlawful disclosure of patients' medical information); McCormick, 494 S.E.2d at 435 (citing majority of jurisdictions recognizing cause of action based on medical provider's unauthorized disclosure of information obtained during treatment); see also J. Zelin, Annotation, Physician's Tort Liability for Unauthorized Disclosure of Confidential Information About Patient, 48 A.L.R.4th 668, § 2(a) (1986) (stating that courts have generally recognized right of patients to recover damages from physicians for unauthorized disclosure of information obtained during treatment).

         ¶ 12. In recognizing this common-law private right of action, courts have relied on various theories, "including invasion of privacy, breach of implied contract, medical malpractice, and breach of a fiduciary duty or a duty of confidentiality." McCormick, 494 S.E.2d at 436. The most commonly accepted theory is breach of the duty of confidentiality, insofar as "health care providers enjoy a special fiduciary relationship with their patients" such that "recognition of the privilege is necessary to ensure that the bond remains." Byrne II, 175 A.3d at 12; see Biddle v. Warren Gen. Hosp., 715 N.E.2d 518, 523 (Ohio 1999) (citing cases for proposition that "courts have moved toward the inevitable realization that an action for breach of confidence should stand in its own right, and increasingly courts have begun to adopt an independent tort in their respective jurisdictions"); Hu ...


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