Clinic Not Liable for Nurse's Breach to Patient's Girlfriend

, New York Law Journal

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ALBANY - An upstate health clinic is not liable for the confidentiality breach that occurred when one of its nurses revealed to a patient's girlfriend that he had a sexually transmitted disease, the state Court of Appeals decided Thursday.

The 6-1 court said it was rejecting the plaintiff's argument in Doe v. Guthrie Clinic, 224, that absolute liability should be imposed on the clinic for the actions of the nurse, who was the sister-in-law of the girlfriend.

The patient complained that the nurse text-messaged word of his STD-positive status to her sister-in-law as the man was awaiting treatment at the Guthrie Clinic Steuben in Corning on July 1, 2010.

Doe knew that the nurse had breached confidentiality about his STD because his girlfriend forwarded him the text message while he was still at the clinic.

The nurse was fired after Doe complained to clinic officials five days later, according to the court.

"A medical corporation's duty of safekeeping a patient's confidential medical information is limited to those risks that are reasonably foreseeable and to actions within the scope of employment," Judge Eugene Pigott Jr. (See Profile) wrote for the majority of the court.

Pigott added that to hold hospitals and other health providers to strict liability for the acts of employees which were motivated entirely by personal reasons is "contrary to well-established precedent," citing N.X. v. Cabrini Medical Center, 97 NY2d 247 (2002), and Cornell v. State of New York, 46 NY2d 1032 (1979).

The patient, identified only as John Doe, had sought damages in a federal suit from the Guthrie Clinic for breach of its fiduciary duty of confidentiality.

While the U.S. Court of Appeals for the Second Circuit had held in Doe v. Guthrie Clinic, 710 F3d 492 (2013), that the nurse's actions "cannot be imputed to the defendants on the basis of respondeat superior," it withheld judgment on Doe's breach of fiduciary duty claim.

The federal judges asked the state court in a certified question whether John Doe could assert a specific and legally distinct cause of action against the defendant for breach of the fiduciary duty of confidentiality in the absence of respondeat superior (NYLJ, March 26, 2013).

The state court responded Thursday that the answer is "no."

The claim is the last remaining cause of action of eight originally brought by Doe. The others, which included breach of contract, negligent hiring, training and supervision of the nurse and negligent infliction of emotional distress, had earlier been dismissed by the U.S. District Court for Western New York or the Second Circuit.

Chief Judge Jonathan Lippman and Judges Victoria Graffeo, Susan Phillips Read, Robert Smith and Sheila Abdus-Salaam joined in Pigott's ruling.

Judge Jenny Rivera wrote in a dissent that the majority's ruling was too "narrow" and that it "undermines" the state's public policy to protect the confidentiality of patients' medical records.

That is particularly true, she wrote, in this digital age.

"The ease with which confidential patient information can now spread through personal digital devices and across social networks demands a strong legal regime to protect a patient's confidentiality," Rivera wrote.

Allowing patients a direct cause of action against the health care provider, "unhampered by questions as to whether an employee's conduct occurred within the scope of employment," is the best way to prevent abuses, Rivera said.

But Pigott said that imposing strict liability for any disclosure of patient information by any health care employee is "unnecessary and against precedent."

To extend Rivera's reasoning to one possible scenario, Pigott said, a medical corporation would face damages if a health center receptionist told someone at a cocktail party that a patient had been in the office to see a doctor as a patient.

That patient might have not told his family members about the visit because he did not want to worry them, yet he might have a cause of action for breach of fiduciary duty of confidentiality under Rivera's view of the question, Pigott argued.

T. Andrew Brown of Brown & Hutchinson in Rochester represented Doe.

Martha Brockway Stolley of Morgan, Lewis & Bockius in Manhattan argued for the clinic and its affiliates.

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