Defendant's Attorney: Charles H. Moody, Daniel Colby Orton, Emily Jones Ludiker, Jonathan Maddalone

Description:

Tulsa, Oklahoma personal injury lawyers represented the Plaintiff who sued Defendant claiming that it released confidential personal identifying information and protected health information to Meta Platforms, Inc., d/b/a Meta ("Facebook or Meta).

The plaintiffs, Doe I and Doe II, filed an eleven-count complaint with the following common factual allegations. Doe I was the victim of sexual abuse perpetrated by her father. She received sexual abuse counseling and other support services through the Child Advocacy Center (CAC), which is owned and/or operated by St. Francis. Craft, an employee of CAC, was Doe I’s assigned counselor. Doe II was employed at Community Mental Health Affiliates, Inc. (CMHA) as a clinical case manager providing services to victims of violent crimes. Doe II attended a multi-disciplinary team meeting of various service providers from different agencies at which Craft and Doe II’s supervisor were also present. Doe II observed Craft talking with Doe II’s supervisor. After the meeting, the supervisor informed Doe II that Craft had disclosed that Doe I was a victim of sexual abuse, the circumstances surrounding her sexual abuse, and that she was receiving sexual abuse counseling at the CAC. The complaint alleges that Doe II was informed that her daughter’s receipt of sexual abuse counseling at CAC represented a conflict of interest which required that Doe II either resign her employment or be terminated. Doe elected to resign.

Counts one through four assert liability against St. Francis and Craft on behalf of Doe I and Doe II on a theory of invasion of privacy based on unreasonable publicity. These counts allege that the disclosure of Doe I’s sexual abuse and treatment constituted publicity of highly private information from which the plaintiffs suffered mental distress and were bothered, annoyed, offended, embarrassed, and humiliated. Counts five and six assert claims by Doe I against St. Francis and Craft pursuant to General Statutes § 52-146j, which provides a cause of action for disclosure of confidential communications between a patient and psychiatrist in violation of General Statutes § § 52-146d to 52-146j. Counts seven through ten assert claims for negligent infliction of emotional distress on behalf of Doe I and Doe II against St. Francis and Craft. Counts eleven and twelve are brought by Doe I against St. Francis and Craft for the negligent disclosure of confidential information concerning Doe I’s treatment to third persons without Doe I’s consent in violation of the standard of care set forth in the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d et seq. (HIPAA) and regulations promulgated thereunder.

Liability against St. Francis is asserted in all counts against it on the basis of respondeat superior.

Section 52-146j provides: " (a) Any person aggrieved by a violation of sections 52-146d to 52-146j, inclusive, may petition the superior court for the judicial district in which he resides, or, in the case of a nonresident of the state, the superior court for the judicial district of Hartford, for appropriate relief, including temporary and permanent injunctions, and the petition shall be privileged with respect to assignment for trial. (b) Any person aggrieved by a violation of sections 52-146d to 52-146j, inclusive, may prove a cause of action for civil damages."

The defendants filed their motion to strike on June 5, 2017. In it they assert that the invasion of privacy claims in counts one through four are legally insufficient because they allege only the disclosure of confidential information to one person, Doe II’s supervisor, while the publicity contemplated by the cause of action is to the public at large. In the view of the defendants, counts five and six fail to state a claim upon which relief may be granted because they do not allege that Craft qualifies as a psychiatrist, as that term is defined by § 52-146d(7). This is significant because § 52-146j is triggered only by disclosure of communications made by a patient to a " psychiatrist." The defendants find insufficiency in counts six through ten which claim negligent infliction of emotional distress because these counts do not allege, as required, that Craft should have foreseen that her behavior would likely cause emotional distress that would lead to illness or bodily harm. Finally, counts eleven and twelve are claimed to be legally insufficient because Connecticut does not recognize a cause of action for disclosure of treatment information.

Section 52-146d(7) defines " psychiatrist" as the following: " a person licensed to practice medicine who devotes a substantial portion of his time to the practice of psychiatry, or a person reasonably believed by the patient to be so qualified."

The motion to strike and accompanying memorandum of law were filed before January 16, 2018, when the Supreme Court released its decision in Byrne v. Avery Center for Obstetrics and Gynecology, P.C., 327 Conn. 540 (2018), which, as discussed below, recognized, as an issue of first impression, a common-law cause of action for breach of the duty of confidentiality of medical records by a health care provider.

The plaintiffs’ objection to the motion to strike was filed on October 3, 2017. The plaintiffs agree that the element of publicity required for the action involves dissemination of information to the public at large. However, they speculate that because the reason for Doe II’s termination might have found its way into her personnel file, this constitutes " publishing" of it as a matter of law and refer the court to Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 863 A.2d 735 (2005). Docket Entry No. 116, Pl.’s Obj. to Motion to Strike, p. 7. Further, the plaintiffs assert that there is a question of fact as to whether the information was published to so many persons that it was substantially certain to become public knowledge. As to counts five and six, Doe I argues that the claims are legally sufficient because it could have been reasonable for her to perceive Craft as being a psychiatrist, thus bringing her within the ambit of § 52-146d. In the plaintiffs’ view, the defendants’ arguments of insufficiency as to counts seven through ten are not persuasive because the question of the plaintiffs’ emotional distress was easily foreseeable and this is a highly factual question more properly reserved for resolution by a jury. Finally, the plaintiffs assert that Connecticut does recognize a cause of action for unauthorized disclosure by a health care provider of confidential patient communications.

The defendants filed a reply on October 6, 2017, in which they observe that in ruling on a motion to strike the court is limited to the factual allegations contained in the complaint and that insufficient allegations have been pled as to (1) publicity in counts one through four because it ignores the protection personnel files are provided by General Statute § 31-128f; (2) the professional status of Craft as a psychiatrist in counts five and six; and (3) an unreasonable risk that Craft’s conduct would cause emotional distress which might result in illness or bodily harm. The court agrees with the defendants.

Outcome: For the foregoing reasons, counts one through ten of the plaintiffs’ complaint are stricken. The motion to strike counts eleven and twelve is denied.

Motion to remand granted.

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