Opinion
No. 10-02-143-CV.
Opinion delivered and filed February 11, 2004.
Appeal from the 19th District Court McLennan County, Texas, Trial Court # 99-3832-1.
Affirmed in part, reversed and remanded in part.
Greg B. Johnson, Attorney at Law — Waco for Appellant/Relator.
Roy L. Barrett, Naman, Howell, Smith Lee, P.C. — Waco for Appellee/Respondent.
MEMORANDUM OPINION
Cindy Foster filed suit against Hillcrest Baptist Medical Center on behalf of her daughter J.L. because of the unauthorized disclosure of J.L.'s medical records. The trial court granted Hillcrest's summary judgment motion without specifying the grounds for its decision. Foster contends on appeal that: (1) she presented sufficient evidence to defeat the no-evidence portion of Hillcrest's summary judgment motion and to otherwise demonstrate the existence of a genuine issue of material fact on each of her claims; (2) a genuine issue of material fact exists on the question of whether the employee who allegedly disclosed J.L.'s medical records without authorization was acting within the course and scope of her employment; and (3) Hillcrest may be liable for the unauthorized disclosure of records regardless of whether the employee was acting within the course and scope of her employment.
BACKGROUND
Foster alleges that J.L.'s boyfriend assaulted her, causing injuries which required J.L. to seek treatment in the Hillcrest emergency room. Heather Bowers, a Hillcrest employee who knew the boyfriend, allegedly removed J.L.'s medical records from the hospital premises and showed them to the boyfriend.
Foster contends in her suit that: (1) Hillcrest was negligent because it breached its duty to maintain and enforce policies and procedures to prevent the unauthorized disclosure of medical records; (2) the unauthorized disclosure violated section 241.152 of the Texas Hospital Licensing Law; and (3) the unauthorized disclosure constitutes an invasion of privacy.
Hillcrest's summary judgment motion combines both traditional and no-evidence grounds. In the traditional section of the summary judgment motion, Hillcrest contends that it is entitled to judgment as a matter of law on Foster's negligence claim because it has adequate policies and procedures and enforced them in this instance. Hillcrest contends that it is entitled to judgment on the remaining claims because Bowers was not acting within the course and scope of her employment if she disclosed the records as alleged.
In the no-evidence section of the motion, Hillcrest contends that it is entitled to judgment on the negligence claim because Foster can produce no evidence that Hillcrest breached any duty owed to J.L. Hillcrest contends that it is entitled to judgment on the remaining claims because Foster can produce no evidence that Bowers was acting within the course and scope of her employment when she allegedly disclosed the records.
Hillcrest supported its summary judgment motion with the affidavit of its human resources director, Bob Brace. According to Brace, Hillcrest has policies in place to maintain the confidentiality of patient records. New employees receive information about these policies during orientation, and employees receive in-service training about the confidentiality policies. Brace stated that Bowers would have had access to only J.L.'s radiology records because Bowers worked in the radiology department. The log maintained by Hillcrest's records department does not indicate that J.L.'s records were checked out at any time before the claim was asserted.
Hillcrest attached several documents to Brace's affidavit, including: (1) a copy of the employee handbook which contains Hillcrest's confidentiality policies; (2) an acknowledgment form signed by Bowers, in which she stated that she would read and comply with Hillcrest's policies; (3) a confidentiality statement signed by Bowers, in which she acknowledged that she would maintain the confidentiality of medical information; and (4) other documents indicating that Bowers received orientation regarding Hillcrest's confidentiality policies and/or agreed to abide by them.
Foster responded by contending: (1) the question of whether an unauthorized disclosure occurred is a disputed fact issue; (2) the question of whether Hillcrest negligently allowed an unauthorized disclosure is a disputed fact issue; (3) the unauthorized disclosure itself demonstrates that Hillcrest's confidentiality policies are inadequate; (4) Hillcrest's failure to take any disciplinary action against Bowers demonstrates that Hillcrest did not enforce its policies; and (5) Hillcrest is liable for violation of section 241.152 of the Texas Hospital Licensing Law and under a common law invasion of privacy theory because Bowers was acting within the course and scope of her employment when she disclosed the records.
Section 241.152(a) provides:
(a) Except as authorized by Section 241.153, a hospital or an agent or employee of a hospital may not disclose health care information about a patient to any person other than the patient or the patient's legally authorized representative without the written authorization of the patient or the patient's legally authorized representative.
TEX. HEALTH SAFETY CODE ANN. § 241.152(a) (Vernon 2001).
Foster attached to her response a copy of a performance review signed by Bowers and her supervisor, in which it is stated that Bowers "did breach confidentiality by admitting to a friend that she saw records on a patient." In addition, Foster provided the affidavit of Tiffany Felkner, who stated that Bowers brought J.L.'s medical records to Felkner's apartment and allowed J.L.'s boyfriend to "closely examine" them.
STANDARD OF REVIEW
The standard of review for a traditional summary judgment motion is well-settled. The movant must demonstrate that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Fletcher v. Edwards, 26 S.W.3d 66, 73 (Tex. App.-Waco 2000, pet. denied). We take as true all evidence favoring the nonmovant. Id. We indulge every reasonable inference from the evidence in favor of the nonmovant and resolve any doubts in its favor. Id.
A no-evidence summary judgment is essentially a pretrial directed verdict. Thus, we apply the same standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Springer v. Am. Zurich Ins. Co., 115 S.W.3d 582, 584 (Tex. App.-Waco 2003, pet. denied). Accordingly, we review the evidence in the light most favorable to the non-movant and disregard all evidence and inferences to the contrary. Id.
The non-movant will defeat a no-evidence summary judgment motion if the non-movant produces "more than a scintilla of probative evidence to raise a genuine issue of material fact." King Ranch, 118 S.W.3d at 751; accord Springer, 115 S.W.3d at 584. "More than a scintilla of evidence exists when the evidence `rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" King Ranch, 118 S.W.3d at 751 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
When the trial court does not specify the basis for granting a summary judgment motion, the appellant must show it is error to base it on any ground asserted in the motion. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Fletcher, 26 S.W.3d at 74. We consider only those grounds "the movant actually presented to the trial court" in the motion. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996); Fletcher, 26 S.W.3d at 74. We likewise consider only those grounds the non-movant expressly presented to the trial court in a written response. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993); Fletcher, 26 S.W.3d at 74.
COURSE AND SCOPE OF EMPLOYMENT
Foster claims in her second point that she need not establish that Bowers was acting in the scope and course of employment when she disclosed the records to prevail on her negligence theories. With regard to Foster's statutory claim and her invasion of privacy claim, she argues that a genuine issue of material fact exists on the question of whether Bowers was acting within the course and scope of employment.
Because Foster does not argue otherwise, we do not examine the validity of her implicit assertion that a hospital can be liable for violation of section 254.152 of the Texas Hospital Licensing Law only when its agent or employee is acting within the course and scope of employment when disclosing health care information without proper authorization. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (appellate court cannot address unassigned error); Cotton v. Cotton, 57 S.W.3d 506, 509 (Tex. App.-Waco 2001, no pet.) (same).
NEGLIGENCE THEORIES
Foster's negligence claim asserts two independent theories of liability: (1) Hillcrest negligently failed to formulate reasonably adequate policies to preserve the confidentiality of patient medical records ("negligent formulation" claim); and (2) Hillcrest was negligent in enforcing the policies it has ("negligent enforcement" claim). We agree with Foster that a finding that an employee was acting in the course and scope of employment is not a prerequisite to prevail on either of these theories.
Under ordinary negligence standards, a hospital may be directly liable for breaching a duty it owes to a patient, including the duty to use reasonable care in formulating policies and procedures which govern medical and non-medical personnel. Tenet Health, Ltd. v. Zamora, 13 S.W.3d 464, 471 (Tex. App.-Corpus Christi 2000, pet. dism'd w.o.j.); McCombs v. Children's Med. Ctr. of Dallas, 1 S.W.3d 256, 259 (Tex. App.-Texarkana 1999, pet. denied); Denton Regl. Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950 (Tex. App.-Fort Worth 1997, pet. dism'd by agr.); see also Air Shields, Inc. v. Spears, 590 S.W.2d 574, 581 (Tex. Civ. App.-Waco 1979, writ ref'd n.r.e.).
The negligent formulation claim turns on whether Hillcrest exercised reasonable care in formulating its confidentiality policies and, if not, whether such failure was a proximate cause of damages to J.L. See Denton Regl. Med. Ctr., 947 S.W.2d at 950. The issue of whether Bowers was within the course and scope of employment has no bearing on Hillcrest's potential liability under this theory of negligence.
Foster's negligent enforcement claim is, in essence, a negligent supervision claim. A negligent supervision claim does not depend on a finding that the employee whose conduct is at issue was acting in the course and scope of employment on the occasion in question. Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 496 (Tex. App.-Fort Worth 2002, no pet.); Verinakis v. Med. Profiles, Inc., 987 S.W.2d 90, 97 (Tex. App.-Houston [14th Dist.] 1998, pet. denied); Dieter v. Baker Serv. Tools, 739 S.W.2d 405, 408 (Tex. App.-Corpus Christi 1987, writ denied).
OTHER THEORIES
Hillcrest's summary judgment evidence establishes as a matter of law that Hillcrest has policies in place prohibiting the unauthorized disclosure of patient records. Bowers violated these policies when she disclosed J.L.'s records. However, the violation of a company policy does not, standing alone, establish that an employee is acting outside the course and scope of employment. E.g., Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 139 (Tex. 2003).
The conduct of an employee is committed in the course and scope of employment when the conduct "falls within the scope of the employee's general authority in furtherance of the employer's business and [is done] for the accomplishment of the object for which the employee was hired." Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002) (emphasis added).
Here, Foster presented no evidence that Bowers's removal of medical records from Hillcrest's premises lay within the scope of her general authority or that Bowers removed the records from the premises to accomplish an object for which she was hired. See id. at 579.
Accordingly, we sustain Foster's second point with regard to her negligence claims and overrule it with regard to her statutory and invasion-of-privacy claims.
UNAUTHORIZED DISCLOSURE
Foster contends in her first point that she produced some evidence to support the elements of her claims challenged by the no-evidence portion of Hillcrest's summary judgment motion. Because of our holding on course and scope of employment, we will address Foster's first point only with regard to her negligence theories.
Hillcrest does not dispute that a fact issue exists on the question of whether Bowers disclosed J.L.'s medical records without authorization. Rather, Hillcrest contends that Foster cannot prevail on her negligent formulation claim because it has policies and procedures to preserve the confidentiality of patient records. Hillcrest contends that Foster cannot prevail on her negligent enforcement claim because: (1) Bowers could not " properly access" J.L.'s medical records in the course and scope of her employment; and (2) Bowers's performance review affirmatively demonstrates that Bowers was reprimanded for violating Hillcrest's confidentiality policies.
As stated, Foster's negligent formulation claim hinges on the issue of whether Hillcrest exercised reasonable care in formulating confidentiality policies which provide "reasonable safeguards" to preserve the confidentiality of patient records. See Denton Regl. Med. Ctr., 947 S.W.2d at 950; see also Tex. Health Safety Code Ann. § 241.155 (Vernon 2001) ("A hospital shall adopt and implement reasonable safeguards for the security of all health care information it maintains."). Viewed in a light most favorable to Foster, Bowers's unauthorized disclosure of J.L.'s medical records raises a genuine issue of material fact on the question of whether Hillcrest formulated "reasonable safeguards" and constitutes some evidence that Hillcrest did not.
Bearing in mind the standard of review in a summary judgment case, we presume for purposes of this appeal that Bowers disclosed J.L.'s records without authorization. See Turner v. KTRK TV, Inc., 38 S.W.3d 103, 109 (Tex. 2000) (presenting background facts in light most favorable to jury verdict); Burnap v. Linnartz, 38 S.W.3d 612, 615 (Tex. App.-San Antonio 2000, no pet.) (presenting background facts in light most favorable to non-movant in summary judgment case).
With regard to Foster's negligent enforcement claim, Hillcrest contends that it adequately enforced its confidentiality policies because Bowers "could not properly access [J.L.'s'] records in the course and scope of her employment" ( i.e., without violating Hillcrest policies). As we have already held however, Hillcrest's argument regarding course and scope of employment has no application to Foster's negligent enforcement claim. Moreover, the fact that Bowers removed the records from Hillcrest premises in apparent violation of Hillcrest policies raises a genuine issue of material fact on the question of whether Hillcrest adequately enforced its policies and constitutes some evidence that it did not.
Accordingly, we sustain Foster's first point with respect to her negligence claims.
We affirm the judgment with regard to Foster's claims that Hillcrest violated section 241.152 of the Texas Hospital Licensing Law and committed an invasion of privacy. We reverse the judgment with regard to Foster's negligence claims and remand this cause to the trial court for further proceedings consistent with this opinion.
Chief Justice Gray concurring and dissenting.
A young lady who first suffered injury resulting in a visit to the hospital alleged she had suffered additional injuries due to the hospital's disclosure of her confidential medical records. The trial court rejected her claims, granting a summary judgment that she recover nothing from the hospital. The young lady asserts on appeal, in two issues, that the trial court erred in granting the take-nothing judgment. The second issue relates to whether the hospital employee who allegedly disclosed the information was acting within the course and scope of her employment with the hospital, thus making the hospital liable for the disclosure.
In her first issue, the young lady complains that the hospital must have been negligent because confidential information was disclosed. Because I would hold that the hospital employee was not acting in the course and scope of employment, I concur with the majority that the hospital is not liable for the actions of the employee. Because no evidence of the breach of the independent duty owed by the hospital was presented, I disagree with the majority and would hold that the hospital is not directly liable for the disclosure. Having determined, upon review of only the no-evidence motion for summary judgment, that the motion was properly granted on this basis, I would affirm the trial court's judgment.
BACKGROUND FACTS
J.L. was treated for injuries at Hillcrest Baptist Medical Center. The injuries were allegedly caused by her boyfriend. J.L. claims that an employee of Hillcrest accessed J.L.'s medical records, removed them from the hospital premises, and showed them to J.L.'s boyfriend. Cindy Foster brought suit on J.L.'s behalf acting as J.L.'s next friend.
The suit alleges Hillcrest is liable for: 1) negligence for failing to: a) "maintain policies and procedures to ensure against the disclosure of private medical records to the public without the patient's . . . consent," (C.R. at 5), or b) "the failure to enforce such policies,"( Id.); 2) "the disclosure of private medical records to the public without the patient's consent, constitut[ing] a violation of the Texas Health Safety Code," ( Id.); and 3) invasion of privacy for the disclosure of private medical records. Hillcrest filed a motion for summary judgment on both traditional and no-evidence grounds as to all claims. TEX. R. CIV. P. 166a (c) (i). The trial court granted the motion without specifying the basis. J.L. contends that the trial court erred in granting Hillcrest's motion for summary judgment because 1) the evidence shows that a breach of confidentiality occurred; and 2) the evidence shows that the employee acted within the course and scope of her employment.
Because the majority recast the pleadings and complaints on appeal, I will quote appropriate portions of J.L.'s allegations.
CLAIMS OF VIOLATIONS OF THE HEALTH SAFETY CODE AND INVASION OF PRIVACY (Course and Scope of Employment)
J.L.'s second issue is that Hillcrest's motion for summary judgment was erroneously granted because the evidence shows that Hillcrest's employee was acting within the course and scope of her employment; and, therefore, Hillcrest was liable for its employee's actions. To prevail on either the claimed violation of the non-disclosure requirements of the Health and Safety Code or invasion of privacy, J.L. must establish the employee, who allegedly disclosed the information, was acting in the course and scope of her employment.
As to what acts of the employee fall within the employee's course and scope of employment, J.L. relies on Minyard Food Stores, Inc. v. Goodman, 50 S.W.3d 131 (Tex. App.-Fort Worth 2001). In Minyard, a store manager defamed an employee during a company investigation. The court of appeals held that the store was liable for the manager's defamation because his "cooperation with an investigation conducted by upper management concerning allegations of employee wrongdoing was thus clearly within his authority and responsibility." Id. at 139.
Hillcrest correctly points out that the Texas Supreme Court has since reversed Minyard on this very issue. Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573 (Tex. 2002). The Supreme Court reaffirmed the general rule that an employer is liable for its employee's torts "only when the tortious act falls within the scope of the employee's general authority in furtherance of the employer's business and for the accomplishment of the object for which the employee was hired." Id. at 577. In Minyard, the Supreme Court agreed with the court of appeals' conclusion that the manager's remarks were made within the scope of his general authority as store manager, but pointed out the failure of the court of appeals to analyze whether the remarks were made in furtherance of the store's business and "for the accomplishment of the object for which [the manager] was employed." Id. at 578-79. The Supreme Court distinguished between "defaming someone to one's employer and defaming someone for one's employer." Id. at 579.
J.L. presented no evidence to show that the employee who allegedly disclosed J.L.'s medical records was acting in furtherance of Hillcrest's business or for the accomplishment of the object for which the employee was hired. See Minyard, 80 S.W.3d at 577. Thus, J.L. failed to present evidence in response to the no-evidence summary judgment motion on this necessary element. The trial court could have properly granted the no-evidence motion for summary judgment on the claimed violation of the Health and Safety Code for the actual disclosure and for invasion of privacy. On this basis alone, I would overrule issue two.
CLAIMS OF HILLCREST'S NEGLIGENCE
But there is a second way Hillcrest could be found liable in this case — direct liability due to Hillcrest's negligence. The Texas Health and Safety Code also requires a hospital to "adopt and implement reasonable safeguards for the security of all health care information it maintains." TEX. HEALTH SAFETY CODE ANN. § 241.155 (Vernon 2001). J.L. claimed Hillcrest failed to maintain and enforce policies and procedures to accomplish this requirement. Hillcrest asserted in its no-evidence summary judgment motion that J.L. had no evidence that Hillcrest breached this duty. In response, J.L. presented no summary-judgment evidence that Hillcrest breached this duty by failing to maintain policies and procedures to ensure against disclosures of confidential patient information, or that Hillcrest was negligent by failing to enforce its policies and procedures designed to prevent a disclosure of confidential patient information. The only argument and evidence presented in response to the motion, and argument reiterated in her first issue on appeal, was that Hillcrest must have breached this duty because an employee accessed and disclosed J.L.'s confidential medical records. This is essentially an argument of res ipsa loquitur — the thing speaks for itself.
The doctrine of res ipsa loquitur is applicable only when: 1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and 2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990). J.L. cites no authority to support the proposition that this rule of evidence by which a jury may infer negligence applies in cases of an unauthorized disclosure of medical records; and I know of none.
Moreover, the disclosure of medical records in violation of policies and procedures is not something that would occur only if Hillcrest was negligent, but rather would also occur if there was intentional conduct to circumvent the policies and procedures adopted and maintained by Hillcrest. The mere fact that a disclosure occurred, without more, is no evidence that Hillcrest failed to maintain and enforce the required safeguards for confidentiality of health care information. The majority has confused the disputed fact of whether there was a disclosure, an admitted breach of the policy, with the legal issue of whether the disclosure is evidence of a breach of the duty to maintain and enforce a confidentiality policy. A fact that gives rise to two equally plausible inferences provides no evidence of either. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003). In other words, that the disclosure gives rise to the equally plausible inferences that adequate policies were intentionally circumvented or that the policies were inadequate to prevent circumvention, is no evidence of either inference.
J.L. presented no evidence of a breach of the duty to maintain and enforce polices and procedures regarding confidentiality of patient information. The trial court could have properly granted the summary judgment on this basis. I would overrule issue one.
CONCLUSION
Hillcrest asserted that J.L. had no evidence that the employee who allegedly disclosed confidential patient information was acting in the course and scope of her employment for Hillcrest. I would hold that J.L. failed to present any evidence on this element essential to two of her claims. Hillcrest also asserted that J.L. had no evidence that Hillcrest breached a duty to maintain and enforce policies regarding the confidentiality of patient information. I would also hold that J.L.'s evidence showing that confidential patient information was disclosed, without more, is no evidence of Hillcrest's failure to maintain and enforce policies regarding confidential patient information. Accordingly, I would hold the trial court properly granted the no-evidence motion for summary judgment and affirm the trial court's judgment.
Because the majority reverses, in part, the trial court's judgment, I respectfully dissent.