Leslie D. Hayden, Appellant-Plaintiff,
Franciscan Alliance, Inc.,  Appellee-Defendant.
from the Marion Superior Court The Honorable Michael D.
Keele, Judge Trial Court Cause No. 49D07-1511-CT-39310.
Attorneys for Appellant Robert D. King, Jr. David R. Thompson
Attorneys for Appellee Christopher L. Riegler Kimberly E.
Schroder Patricia B. Freije Katz Korin Cunningham, P.C.
Franciscan Alliance, Inc. ("Franciscan") filed a
motion for summary judgment on the issues of respondeat
superior and negligent hiring and retention of an employee on
April 5, 2018. Marion Superior Court granted summary judgment
for Franciscan on July 6, 2018. Leslie Hayden
("Hayden") now appeals, arguing there are issues of
material fact that preclude summary judgment. We affirm.
and Procedural History
On November 18, 2013, Hayden had x-rays taken at St. Francis
Hospital's Radiology Department for a broken arm.
Appellant's App. Vol. III, pp. 54-56. Two years later, in
2015, Jessica Hensley ("Hensley") texted a
screenshot of Hayden's confidential medical records to
Hayden's boyfriend, and posted the records on Facebook.
Id. at 53; Appellant's App. Vol. I, p. 137.
Hayden recalled that Brooke Collins ("Collins"),
Hensley's best friend, worked as a registrar in the St.
Francis Hospital Radiology Department, where Hayden received
treatment in 2013. Appellant's App. Vol. III, p. 59.
Hayden had a complex and acrimonious relationship with
Hensley and Collins that dated back to high school.
Appellant's App. Vol. I, pp. 125, 128, 149.
Hayden contacted the hospital's Administrative Director
of Compliance and Privacy in July 2015 to ask for an audit of
her medical account. Appellant's App. Vol. III, pp. 57,
163. The hospital found that Collins's password was used
to access Hayden's account on November 29, 2013, eleven
days after Hayden received treatment for her broken arm.
Appellant's App. Vol. I, pp. 81-82. Hayden was not a
patient of Franciscan on November 29 when Collins's
password was used to access her account. Franciscan concluded
that Collins's access was unauthorized and improper.
Appellant's App. Vol. III, p. 191. Collins has since
admitted to accessing Hayden's private patient
information on November 29, 2013. Appellant's App. Vol.
IV, p. 84.
On November 25, 2015, Hayden brought suit against Hensley,
Collins, and Franciscan. A fourth defendant, Southside
OB-GYN, P.C. was also named but later dismissed by
stipulation. Appellant's App. Vol. I, p. 11. Hayden
alleged (I) respondeat superior against Franciscan for the
acts of Collins, (II) negligence against Franciscan in
failing to have appropriate prophylactic structures and
systems in place to safeguard private patient information,
(III) Health Insurance Portability Accountability Act
("HIPAA") violations against St. Francis, and (IV)
negligence, invasion of privacy & public disclosure of
private facts against Collins and Hensley for accessing,
reviewing, and disseminating Hayden's private and
confidential medical records.
Collins was hired as a registrar at St. Francis Hospital in
April 2011. Appellant's Confidential App. Vol. II, p. 72.
The job required her to "get patient information,
register them, verify their insurance, verify their personal
information, and then enter it in the computer[.]"
Id. Collins was subject to a background check, which
showed that Collins had been arrested but not convicted for
felony theft and misdemeanor conversion while in high school.
Appellant's App. Vol. III, p. 175-76. Collins had stolen
medicine from Walmart and had withdrawn $400 from her
father's bank account. Id. at 132- 37. Charges
in both instances were dismissed. Id. at 137.
Franciscan did not ask Collins about her criminal history in
her initial interview, nor in a re-interview when she was
transferred to St. Francis's south campus. Id.
at 139, 144, 155.
Cory Baute ("Baute"), Franciscan's Chief HR and
Support Services Executive for Franciscan Health's
Central Indiana Division, signed an affidavit stating that
nothing in Collins's application or background would or
should have precluded her employment as a registrar at St.
Francis. Appellant's Confidential App. Vol. II, p. 97.
Baute did not work for Franciscan in 2011 when Collins was
hired but testified that the hiring practices in 2011 were
"generally the same as they are now."
Appellant's App. Vol. III, p. 180.
Franciscan also presented Linda Fletcher
("Fletcher"), the Hospital's Information
Security Officer, to testify about HIPAA compliance, patient
privacy, and the security of electronic medical records.
Appellant's App. Vol. III, p. 119. Fletcher testified
that background checks assist with HIPAA compliance and are
one of the controls Franciscan uses to ensure "staff are
appropriate to handle the [protected health]
information." Id. at 121. When asked whether
certain backgrounds are disqualifying, Fletcher responded,
"That would be handled at the St. Francis level within
HR. . . they run the background checks and they're
responsible for the criteria used to qualify and disqualify
people." Id. at 122. She did not know what
criteria the HR departments use but testified that
disqualifying backgrounds would presumably include any abuse
of private health information, criminal background, and
tendency for fraud and abuse. Id. at 122-23. When
asked whether a history of theft would be disqualifying,
Fletcher responded, "It depends on the theft, I
guess." Id. at 124.
Once hired, Collins was required to undergo HIPAA training.
After completing training, Collins signed the General
Orientation Agreement, which provided that she had
"received and underst[ood] the information regarding the
Health Insurance Portability and Accountability Act of 1996
(HIPAA) regulations and hospital policies and procedures
regarding Safety, Security, PI, and Patient Rights as
presented during and contained in the General Orientation
Handbook." Appellant's Confidential App. Vol. II, p.
80. She also signed an acknowledgment affirming her
understanding that she may only "use and access
information that is needed to perform [her] job duties, and
inappropriate use or disclosure of information on [her] part
may result in legal action, including personal
liability." Id. at 81.
Collins also received regular trainings, including classes on
HIPAA compliance, patient privacy and security, and
appropriate access to and usage of medical records, and
periodically took tests about patient privacy. Id.
at 83. Supervisors were near Collins's work area and made
regular rounds to check on the registrars. Id.
Annual audits analyzed the online activities of the
registrars. Id. Collins testified that she had been
trained and educated by Franciscan and was aware of
appropriate and inappropriate access of patient records.
Appellant's App. Vol. III, p. 158. She also knew that
accessing and forwarding medical records to outside parties
was against hospital policy. Id. at 159. Collins
voluntarily resigned in February 2014. Appellant's
Confidential App. Vol. II, p. 72.
Collins filed a motion for summary judgment on September 1,
2017 in which Franciscan joined. The court granted partial
summary judgment on Count III, finding that Hayden had no
private right of action under HIPAA. Franciscan filed a
subsequent motion for summary judgment on April 5, 2018.
Collins filed an amended answer and response in order to
admit accessing Hayden's private patient information on
November 29, 2013. Franciscan asked that Collins's
amended answer and responses be considered as part of its
pending motion for summary judgment. The Court granted the
motion for summary judgment. Hayden now appeals.
A trial court should grant a motion for summary judgment only
when the evidence shows that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law. Altevogt v. Brand, 963
N.E.2d 1146, 1150 (Ind.Ct.App. 2012) (citing Ind. Trial Rule
56(C)). The trial court's grant of a motion for summary
judgment is "cloaked with a presumption of
validity." Id. In reviewing a trial court's
summary judgment motion, an appellate court applies a de novo
standard of review. Alldredge v. Good Samaritan Home,
Inc., 9 N.E.3d 1257, 1259 (Ind. 2014).
Here, the trial court made findings of fact and conclusions
of law in support of its entry of summary judgment. We are
not bound by the trial court's findings and conclusions.
Altevogt, 963 N.E.2d at 1150.
Hayden argues that the trial court improperly granted summary
judgment to Franciscan. Hayden raises four issues on appeal
that we consolidate and restate as two issues. First, she
argues that summary judgment should not have been granted on
Franciscan's respondeat superior claim. Second, she
argues the trial court erroneously granted ...