Opinion
C.A. No. N16C-09-150 CLS
05-31-2017
KURT BRYSON, Plaintiff, v. DELAWARE OCCUPATIONAL HEALTH RESOURCES, LLC, OMEGA MEDICAL LABORATORY, LTD., WALGREENS BOOTS ALLIANCE INC., WALGREENS COMPANY, and WALGREEN DELAWARE COMPANY, Defendants.
On Defendants' Motion to Dismiss.
DENIED. ORDER
Defendants Walgreens Boots Alliance Inc., Walgreens Company, and Walgreens Delaware Company (collectively "Walgreens") moved to dismiss the Complaint pursuant to Superior Court Civil Rule 12(b)(6). For the following reasons, Defendants' Motion to Dismiss is DENIED.
Facts
This action arises from an alleged breach of confidentiality. Mr. Bryson applied for a job at Guardian Construction Company, Inc. ("Guardian"), and the company required Mr. Bryson obtain a drug test before employment with Guardian. Mr. Bryson went to Defendant, Omega Medical Center ("Omega Medical Center") for his drug test on September 18, 2014. On this day in question, Mr. Bryson told a female agent and/or employee of Defendants Delaware Occupational Health Resources ("DOHR") and/or Omega Lab that he would fail the drug test because he is prescribed and takes prescription opiates. The employee informed Mr. Bryson that Omega Medical Center would contact him, and he would have to provide Omega Medical Center with his prescription. If he satisfied these prerequisites, Mr. Bryson's drug test would be reported to Guardian as a negative drug test. On September 22 or 23, Mr. Bryson claims that a woman by the name of Ms. O'Brien, which Plaintiffs believe is an employee of DOHR and/or Omega Lab, notified Mr. Bryson that he failed the drug test because he tested positive for oxycodone. Subsequently, Ms. O'Brien requested the prescribing doctor's name, and the pharmacy where Mr. Bryson filled his prescription. Mr. Bryson told Ms. O'Brien that he filled his prescription at Walgreens, 2470 North DuPont Parkway, Middletown, Delaware.
Eventually Ms. O'Brien called Mr. Bryson again, and said that she needed more information as Mr. Bryson was prescribed oxycodone and oxycontin. Mr. Bryson asked how Ms. O'Brien knew he was taking both oxycodone and oxycontin, and she told him that a Walgreen's employee and/or pharmacist at Walgreen's in Middletown informed her of this information. Mr. Bryson called Walgreens and spoke with a pharmacist who confirmed that his prescription information was provided to DOHR and/or Omega Lab. The pharmacist told Mr. Bryson that DOHR and/or Omega Lab asked for information about one of the prescriptions, and the agent of Walgreens "volunteered the information about the other prescription." The pharmacist called Mr. Bryson again and apologized for the policies and/or procedures that were not followed. Consequently, Mr. Bryson's prescription information was provided to Guardian by DOHR and/or Omega Lab. Mr. Bryson had to meet with personnel at Guardian about his use of oxycontin and oxycodone. Plaintiffs claim that Mr. Bryson applied to a job internally at Guardian, but he did not get the job. Further, Mr. Bryson has not received a raise even though raises were discussed when he was initially hired at Guardian. Mr. Bryson filed Breach of Confidentiality, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Invasion of Privacy, Negligence, Breach of Contract, and Promissory Estoppel claims.
Parties' Contentions
Walgreens filed a Motion to Dismiss Plaintiff's Complaint. Occupational Health Resources, L.L.C. d/b/a Omega Medical Center joined this Motion. Walgreens first argues that the Complaint is insufficient without an Affidavit of Merit because under Delaware law, medical negligence claims must be supported by an Affidavit of Merit. Walgreens argues that in Delaware, a physician-patient relationship exists between a pharmacist and a customer for the purposes of confidentiality, and an affidavit of merit should have supported these claims. Additionally, Walgreens contends that its Notice of Privacy Practices provides that Walgreens may disclose health information to provide and coordinate the treatment, medications, and services a person receives. Essentially, Walgreens argues that they may disclose protected health information to pharmacist, doctors, nurses, technicians, and other personnel involved in the patient's health care. Similarly, under 16 Del. C. § 1212 (d)(10) Walgreens contends that its disclosure to Omega Laboratory was related to the coordination of the analysis being provided by Omega. Thus, there is no violation of Delaware law.
On the other hand, Plaintiffs contends that although a physician/patient relationship exists between a pharmacist and an individual for the purposes of breach of confidentiality, this is not a medical malpractice claim subject to 18 Del. C. § 6853. Plaintiff cites to numerous cases where Delaware courts have held that breach of confidentiality claims between a doctor and a patient do not fall within the medical negligence statute, thus no expert is required. Further, Plaintiffs contend that an issue of fact exists as to whether Walgreens violated their privacy policies.
Standard of Review
The test for sufficiency of a complaint challenged by a Rule 12(b)(6) motion to dismiss is whether a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint. In making its determination, the Court must accept all well-pleaded allegations in the complaint as true and draw all reasonable factual inferences in favor of the non-moving party. The complaint must be without merit as a matter of fact or law to be dismissed. Therefore, if the plaintiff can recover under any conceivable set of circumstances susceptible of proof under the complaint, the motion to dismiss will not be granted.
Spence v. Funk, 396 A.2d 967, 968 (1978); see Cambium Ltd. v. Trilantic Capital Partners III L.P., 2012 WL 172844, at *1 (Del. Jan. 20, 2012) (citing Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 537 (Del. 2011)).
Ramunno v. Cawley, 705 A.2d 1029, 1034-36 (Del.1998); Nix v. Sawyer, 466 A.2d 407, 410 (Del.Super.Ct.1983).
Diamond State Tel. Co. v. University of Delaware, 269 A.2d 52 (Del.1970).
Ramunno, 705 A.2d at 1034; see Cambium, 2012 WL 172844, at *1 (citing Cent. Mortg., 27 A.3d at 537).
Discussion
In this State, a plaintiff cannot file a health-care negligence lawsuit unless the complaint is accompanied by an affidavit of merit "as to each defendant signed by an expert witness, as defined in § 6854 of this title, and accompanied by a current curriculum vitae of the witness, stating that there are reasonable grounds to believe that there has been health-care medical negligence committed by each defendant." However, as correctly stated by Plaintiffs, a breach of confidentiality between a doctor and a patient is considered ordinary negligence, not considered medical negligence, under Chapter 68 of Title 18. Medical negligence is defined as:
See Del. Ins. Guar. Ass'n. v. Birch, 2004 WL 1731139, at *2 (Del. Super. July 30, 2004)(citing Martin v. Baehler, 1993 WL 258843 (Del. Super. May 20, 1993); see also 18 Del. C. § 6801(7) (defining medical negligence).
any tort or breach of contract based on health care or professional services rendered, or which should have been rendered, by a healthcare provider to a patient. The standard of skill and care required of every health-care provider in rendering professional services or health care to a patient shall be that degree of skill and care ordinarily employed in the same or similar field of medicine as defendant, and the use of reasonable care and diligence.Pursuant to this section, health-care is "any act or treatment performed or furnished, or which should have been performed or furnished, by any health-care provider for, to or on behalf of a patient during the patient's medical care, treatment, or confinement." The statute defines health-care provider as:
a person, corporation, facility or institution licensed by this State pursuant to Title 24, excluding Chapter 11 thereof, or Title 16 to provide health-care or professional services or any officers, employees or agents thereof acting within the scope of their employment; provided, however, that the term "health-care provider" shall not mean or include any nursing service or nursing facility conducted by or for those who rely upon treatment solely by spiritual means in accordance with the creed or tenets of any generally recognized church or religious denomination.
From a plain reading of the statute, a pharmacist is considered a health-care provider under Title 18 as, Title 24, Chapter 25 governs Pharmacy. As pointed out by Plaintiffs, "[t]he distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by a lay person or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of facts." Further, the Birch court pointed out that "record-keeping and in particular, insuring the privacy of those records and of other client information, is a service provided in many businesses as part of the administration of the business. It is not a task that is peculiar to the medical profession, although the importance of a doctor's duty to maintain patient confidentiality is well-recognized in society." Thus, this Court finds that a breach of confidentiality between a pharmacist and a patient is not medical negligence pursuant to 18 Del. C. § 6801. Therefore, Walgreen's Motion to Dismiss will not be granted based on Plaintiff's lack of an affidavit of merit.
See 24 Del. C. § 2507.
Birch, 2004 WL 1731139, at *3.
Id.
Walgreen's second argument on their Motion to Dismiss is that their privacy policy is consistent with Delaware law regarding disclosure of protected health information. Under 16 Del. C. § 1212(d), certain protected health information may be disclosed without the informed consent when disclosures are made "[f]or patient treatment and care coordination, defined as the provision, coordination, or management of health-care and related services by 1 or more health-care providers, including the coordination or management of health care by a health-care provider with a third party; consultation between health-care providers relating to a patient; or the referral of a patient for health-care from 1 health-care provider to another." Under both Delaware law and Walgreens' own privacy policy, there are issues of fact as to whether Walgreens followed the policies and procedures regarding disclosure of information without informed consent. Therefore, Walgreens' Motion to Dismiss is hereby DENIED.
16 Del. C. § 1212(d)(10). --------
IT IS SO ORDERED.
/s/ Calvin L. Scott
The Honorable Calvin L. Scott, Jr.