¶19 Chapter 7.70 RCW does not define "health care. "The Court of Appeals has defined the term to mean "`the process in which [the physician] was utilizing the skills which he had been taught in examining, diagnosing, treating or caring for the plaintiff as his patient.`" Estate of Sly v. Linville, 75 Wn. App. 431, 439, 878 P.2d 1241 (1994) (quoting Tighe v. Ginsberg, 146 A.D.2d 268, 271, 540 N.Y.S.2d 99 (1989)). This is consistent with a common dictionary definition.

DeFilippo v. Beck, 520 F. Supp. 1009, 1011 (D. Del. 1981). In finding that breach of confidentiality was not malpractice and thus did not give rise to a cause of action under 18 Del. C. § 6801, the Martin Court followed the reasoning of a New York Court of Appeals case, Tighe v. Ginsberg, 540 N.Y.S.2d 99 (N.Y.Ct.App. 1989). Martin, 1993 WL 258843, at *4.

At this point, New York courts have recognized it only in the context of physician-patient relationships. See Tighe v. Ginsberg, 146 A.D.2d 268, 270-71, 540 N.Y.S.2d 99, 100-01 (App.Div. 1989); MacDonald v. Clinger, 84 A.D.2d 482, 483-84, 446 N.Y.S.2d 801, 804-05 (App.Div. 1982); Doe, 93 Misc.2d at 210-11, 400 N.Y.S.2d at 674-75. As a court sitting in diversity, we must determine whether they would extend it to banker-depositor relationships as well.

; Tighe v. Ginsberg, 146 A.D.2d 268, 271 (4th Dep't 1989) (“[In MacDonald, the court] recognized that the physician-patient relationship creates an implied covenant which when breached is actionable.

Id. at 554, 868 S.W.2d at 509. This court also relied on the New York case of Tighe v. Ginsberg, 540 N.Y.S.2d 99 (N.Y.App. Div. 1989), for the idea that "[a]lthough in a general sense a doctor furnishes medical care to patients, clearly not every act of negligence toward a patient constitutes medical malpractice." Wyatt, 315 Ark. at 554, 868 S.W.2d at 509 (quoting Tighe, 540 N.Y.S.2d at 100).

Applying the rationale of Bailey to the facts at hand, it is clear that the actions of Lynn Bryant in revealing confidential information she acquired at work did not fall within our expressed view of what constitutes a medical injury. In further evaluating this issue, we consider the rationale of a New York Supreme Court decision, Tighe v. Ginsberg, 540 N.Y.S.2d 99, 146 A.D.2d 268 (1989), helpful. There, the plaintiff visited the defendant doctor for treatment of a hearing problem and sued him when the doctor disclosed his medical records without authorization.

The complaint, as amplified by the bill of particulars, alleges that plaintiff suffered mental distress and related emotional harm as a direct result of the disclosure of her confidential medical information. Because a breach of physician-patient confidentiality is actionable as a tort (seeBurton v. Matteliano, 81 A.D.3d at 1274, 916 N.Y.S.2d 438 ; Doe v. Community Health Plan–Kaiser Corp., 268 A.D.2d 183, 187, 709 N.Y.S.2d 215 [2000] ; Tighe v. Ginsberg, 146 A.D.2d 268, 271, 540 N.Y.S.2d 99 [1989] ), plaintiff may recover for emotional harm so long as "the mental injury is a direct, rather than a consequential, result of the breach and ... the claim possesses some guarantee of genuineness" ( Ornstein v. New York City Health & Hosps. Corp., 10 N.Y.3d 1, 6, 852 N.Y.S.2d 1, 881 N.E.2d 1187 [2008] [internal quotation marks and citation omitted]; seeFox v. Mark, 181 A.D.3d 560, 564, 118 N.Y.S.3d 726 [2020], lv denied 35 N.Y.3d 917, 2020 WL 6790136 [2020] ). Although defendant contends that plaintiff will be unable to establish at trial that she sustained any actual damages as a direct result of Wittlin's breach of confidentiality, "it is well settled that a party moving for summary judgment must affirmatively establish the merits of its cause of action or defense and does not meet its burden by noting gaps in its opponent's proof" ( Miller v. Miller, 189 A.D.3d 2089, 2091, 137 N.Y.S.3d 853 [2020] ; seeBurdick v. Tonoga, Inc., 191 A.D.3d 1220, 1223, 143 N.Y.S.3d 123 [2021] ; O

Defendants' alleged breach of this duty did not arise during the process in which Dr. Ginsberg was utilizing the skills which he had been taught in examining, diagnosing, treating or caring for the plaintiff as his patient.Sly, 75 Wn. App. at 439 (emphasis in original) (quoting Tighe v. Ginsberg, 146 A.D.2d 268, 271, 540 N.Y.S.2d 99 (1989)). A doctor's "entrepreneurial activities" also fall outside the ambit of "health care."

"Sly, 75 Wn. App. at 439 (quoting Tighe v. Ginsberg, 146 A.D.2d 268, 271, 540 N.Y.S.2d 99 (1989)). ¶11 A doctor's "entrepreneurial" activities also fall outside the ambit of "health care."

Titolo cites several cases from other jurisdictions to support her argument that the violation of an independent duty to a patient does not constitute medical malpractice. (See Estate of Sly v. Linville (1994) 75 Wn.App. 431 [ 878 P.2d 1241]; Tighe v. Ginsberg (N.Y.App.Div. 1989) 146 A.D.2d 268 [ 540 N.Y.S.2d 99]; Leach v. Shapiro (1984) 13 Ohio App.3d 393 [13 Ohio B. 477, 469 N.E.2d 1047]; Wyatt v. St. Paul Fire Marine Ins. Co. (1994) 315 Ark. 547 [ 868 S.W.2d 505].) Setting aside the point none of these cases is binding on us, they provide little or no guidance to us because they do not address the key issues in this case.