A recently published decision of an Ohio Court of Appeals reminds us that, particularly in this electronic age, employers need to be very careful in the handling of confidential medical information. The decision is also a reminder that sometimes the outcome of a case can depend on the precedent in a particular appellate district.
In Templeton v. Fred. W. Albrecht Grocery Co. the 9th District Court of Appeals (for Summit County, Ohio) the employee responsible for managing workers’ compensation claims for the employer inadvertently sent a psychological report regarding the plaintiff to other employees rather than to the plaintiff’s attorney as she intended. The plaintiff brought suit alleging unauthorized disclosure, negligence and invasion of privacy. In response, the employer filed a motion to dismiss the claims as a matter of law.
The trial court dismissed the unauthorized disclosure and negligence claims at the outset and then, ultimately granted summary judgment as to the invasion of privacy claim. The plaintiff then appealed.
In affirming dismissal of all of the claims, the court first addressed the claim for invasion of privacy, which was essentially based on a claim for public disclosure of private facts (among other types of invasion of privacy claims). To establish such a claim, the court held that a plaintiff must prove:
“(1) that there has been a public disclosure; (2) that the disclosure was of facts concerning the private life of an individual; (3) that the matter disclosed would be highly offensive and objectionable to a reasonable person of ordinary sensibilities; (4) that the disclosure was intentional; and (5) that the matter publicized is not of legitimate concern to the public.”
Plaintiff argued that the court should follow a decision of the First (Hamilton County) District Court of Appeals in not requiring that the disclosure be intentional, but the court held that it was bound by its own precedent. Further, it noted a number of decisions from other Ohio Courts of Appeals that require intentionality as an element of the claim. Accordingly, the court held that because the misdirection of the e-mail was inadvertent, there was no actionable claim for invasion of privacy.
The court then addressed plaintiff’s claim for unauthorized disclosure and breach of medical confidence, arguably based upon the Ohio Supreme Court’s decision in Biddle v. Warren General Hospital. In that case the Ohio Supreme Court recognized that a physician or hospital can be liable for the tort of unauthorized, unprivileged disclosure of medical information to a third party when the medical information is gained in the course of the physician-patient relationship. Later, the Ohio Supreme Court extended that principle in a situation where an attorney who had legitimately received medical information during the course of litigation improperly disclosed that information outside the context of the case. In addressing these cases, the Court of Appeals concluded that the Biddle decision arose and should be applied only in the physician-patient relationship and declined to extend that holding to impose liability upon employers. Thus, dismissal of that claim was affirmed as well.
Two judges joined in the majority opinion. The third judge dissented, asserting that intentionality should not be a requirement for an invasion of privacy tort and that it was time to extend the Biddle holding “to cover an employer’s responsibility to safeguard the confidentiality of medical records that it receives from healthcare providers,” particularly “given the proliferation of electronic medical records in the years since Biddle was decided and ever-mounting challenges to individual privacy in a digital age.”
The Bottom Line
While this decision is good for employers, it reminds us that maintaining the confidentiality of private, particularly medical, information is critical to avoiding claims such as these. Further, courts are increasingly protective of private information in this electronic age, and the law followed by this court could change. And finally, it is notable that in addressing the law applicable to a particular situation, there can be differences among the various district courts of appeals in Ohio. Had this case arisen in Cincinnati instead of Akron, the plaintiff might have had a viable claim for invasion of privacy since the Hamilton County court of appeals does not require intentionality for such a claim.