Courtney R. Robbins, Appellant-Plaintiff,
The Trustees of Indiana University and Clarian Health Partners, Inc., Appellees-Defendants
from the Marion Superior Court. The Honorable Timothy W.
Oakes, Judge. Trial Court Cause No. 49D13-1207-CT-27728.
FOR APPELLANT: Joseph E. Allman Macey Swanson and Allman,
FOR APPELLEE THE TRUSTEES OF INDIANA UNIVERSITY: Cory
Brundage Cory Brundage LLC, Indianapolis, Indiana.
FOR APPELLEE CLARIAN HEALTH PARTNERS: John David Hoover,
Laurie E. Martin, Amanda L.B. Mulroony, Hoover Hull Turner
LLP, Indianapolis, Indiana.
Judge. Pyle, J., concurs. Crone, J., concurs in part and
concurs in result in part with separate opinion.
Courtney R. Robbins appeals the trial court's grant of
summary judgment in favor of the Trustees of Indiana
University and Clarian Health Partners, Inc. She
raises the following two issues, which we revise and restate
I. Whether the trial court erred in granting summary judgment
in favor of the Trustees and Clarian on the issue of
vicarious liability; and
II. Whether the trial court erred in granting summary
judgment in favor of the Trustees on the issue of negligent
and Procedural History
In September 2010, Tiffaney DeBow, a licensed practical
nurse, applied for a job at the Indiana University School of
Medicine. Her application revealed that she had been a nurse
for twelve years and had worked at three hospitals and a
nursing home. Her application also revealed that she had been
convicted of misdemeanor battery in May 2009. When questioned
about the conviction, DeBow explained that during a
confrontation with a woman who had made comments about
DeBow's daughter on the Internet, DeBow poked the woman
on the forehead.
As part of the application process, DeBow also read and
signed the Indiana University Department of Medicine
Commitment to Confidentiality Agreement, which provides in
relevant part as follows:
The IU Department of Medicine regards the security and
confidentiality of its data and information to be of utmost
importance. Each information user holds a position of trust
in which he or she must preserve the confidentiality, privacy
and security of Indiana University (IU), Indiana University
Foundation (IUF), practice plan, patient medical record and
protected health information (PHI) that is accessed,
maintained, or transmitted in any form or medium.
Appellant's Appendix at 49.
The Confidentiality Agreement also provided in part:
As an information user:
a. I will only access, use (read, add, change, or delete), or
disclose information for which I have a business reason and
am authorized to do so. At no time will I access, use, or
disclose confidential or sensitive information to any person
or third party for a personal, unauthorized, unethical, or
illegal reason. I will not share my password(s) nor will I
use a sign-on/password that is not assigned to me.
b. I understand that my obligation to safeguard
confidentiality at all times, both on duty and off-duty,
remains in full force during the entire term of my
employment/affiliation and continues in effect after such
employment/affiliation terminates. . . .
After DeBow completed her employment application, an
independent company conducted a pre-employment background
check on her for the Trustees. The search revealed the
misdemeanor battery conviction, which resulted in a one-year
sentence with all but four days suspended, community service,
six months on probation and twelve anger management classes.
The search also revealed dismissed charges for class A
misdemeanor criminal mischief in 2006 and class A misdemeanor
driving while suspended in 2008 as well as a probation
Following the background check, DeBow was offered a position
providing health care services to the patients of the School
of Medicine's Gastroenterology Department. After DeBow
accepted the position, Nada Phoenix, acting on behalf of the
School of Medicine, submitted an Access Request to Clarian
Data Security to provide DeBow a username and password so she
could access two electronic medical
records systems owned by Clarian. Phoenix also submitted
DeBow's signed Responsibility Statement wherein DeBow
agreed to keep information in the medical records
confidential and not to disclose it for personal,
unauthorized, unethical, or illegal reasons. Both the Access
Request and Responsibility Statement identified DeBow as a
On October 11, 2010, her first day of work, DeBow began
accessing the medical records of Robbins and her children.
Specifically, a medical records access report shows that on
October 11 and 13, DeBow accessed the medical records of
Robbins and her children forty-two times between 2:05 p.m.
and 4:28 p.m. Robbins was not a patient of the
gastroenterology department, and the medical records DeBow
accessed were not created in connection with treatment and
care of Robbins at the School of Medicine. DeBow found the
information in one of the medical records systems owned by
Clarian. On October 13, DeBow posted medical information
about Robbins obtained from these records on Robbins's
former boyfriend's internet blog. When confronted by her
employer, DeBow admitted what she had done and that she knew
it was wrong. She admitted " that there was no
legitimate business reason for her to access the records and
explained that her sole motivation was that . . . [she]
desired revenge." Id. at 54.
Pursuant to a plea agreement executed in February 2012, DeBow
pled guilty in federal court to the felony charge of wrongful
disclosure of individually identifiable health information
for obtaining Robbins's health information during the
course of her employment with the intent to transfer and use
that information for personal gain and malicious harm and to
embarrass Robbins, and DeBow was sentenced to probation for a
term of three years and was fined $1,000.
In November 2012, Robbins filed an amended complaint against
the Trustees and Clarian wherein she alleged that the
defendants were vicariously liable for the actions of DeBow,
who allegedly committed the torts of invasion of privacy by
the public disclosure of private facts and intentional
infliction of emotional distress. Robbins alternatively
argued that if the Trustees were not vicariously liable to
her for these acts, they were liable to her for negligently
The Trustees and Clarian filed summary judgment motions. The
Trustees designated DeBow's affidavit in support of their
motion. In the affidavit, DeBow explained that she accessed
Robbins's medical records for " personal
reasons." Id. at 57. According to DeBow, she
and Robbins " had been involved in an acrimonious
personal feud for many years and that was [her] motivation to
disclose protected medical information." Id.
DeBow further explained that she " was acting on [her]
own initiative and not within the scope of [her] employment
when [she] accessed and published  Robbins'
records," that she " was not involved in any way in
the provision of medical care to  Robbins or her
children," and that she " knew it was against [her]