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Robbins v. Trustees of Indiana University

Court of Appeals of Indiana

October 2, 2015

Courtney R. Robbins, Appellant-Plaintiff,
The Trustees of Indiana University and Clarian Health Partners, Inc., Appellees-Defendants

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          Appeal from the Marion Superior Court. The Honorable Timothy W. Oakes, Judge. Trial Court Cause No. 49D13-1207-CT-27728.

         ATTORNEY FOR APPELLANT: Joseph E. Allman Macey Swanson and Allman, Indianapolis, Indiana.

         ATTORNEY FOR APPELLEE THE TRUSTEES OF INDIANA UNIVERSITY: Cory Brundage Cory Brundage LLC, Indianapolis, Indiana.

         ATTORNEYS FOR APPELLEE CLARIAN HEALTH PARTNERS: John David Hoover, Laurie E. Martin, Amanda L.B. Mulroony, Hoover Hull Turner LLP, Indianapolis, Indiana.

         Brown, Judge. Pyle, J., concurs. Crone, J., concurs in part and concurs in result in part with separate opinion.


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          Brown, Judge.

         [¶1] 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

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raises the following two issues, which we revise and restate as:

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 hiring.

         We affirm.

         Facts and Procedural History

         [¶2] 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.

         [¶3] 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.

         [¶4] 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. . . .


         [¶5] 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 violation.

         [¶6] 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

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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 non-Clarian employee.

         [¶7] 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.

         [¶8] 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.

         [¶9] 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 hiring DeBow.

         [¶10] 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] employer's ...

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