By its decision dated November 14, 214, the Court of Appeals of Indiana (“Appeals Court”) affirmed a $1.8 million verdict in favor of a customer of Walgreen Company (Walgreen’s) whose personal, private prescription history was viewed and disclosed by one of its pharmacy employees to a third party. After a four-day trial, the jury had found that the pharmacist and Walgreen’s were liable for the damages sustained by the customer as a result of the breach and awarded the customer $1.8 million, of which Walgreen’s and its pharmacist were liable for 80% of the verdict.
The Underlying Facts
The plaintiff had a sexual relationship with a man between 2006 and 2010, during which time she filled all of her prescriptions, including oral birth control pills, at a Walgreen’s pharmacy. During 2009, the man began dating a Walgreen’s pharmacist (“pharmacist”). In August 2009, the plaintiff became pregnant with the man’s child and gave birth to a son in May 2010. At some point, the man learned that he had contracted genital herpes.
Within a week of the child’s birth, the man sent a letter to the pharmacist he was had been dating, advising her about the baby and about the possibility that he may have exposed her to genital herpes. While at work during her shift at Walgreen’s, the pharmacist looked up the plaintiff’s prescription history in the Walgreen’s computer system to see if she could find any information about the plaintiff’s sexually transmitted disease but denied that she looked for information related to birth control and further denied that she printed anything relating to the plaintiff’s prescription profile.
Within days, the man sent a text message to the plaintiff that stated: “I’m not trying to start any crap but I have a print out showing that you didn’t even refill ur birth control perscription for july or august. The last time you filled ur prescription was june. I know uve lied to ur mom and harmony and anybody willing to listen but the printout does not lie. I know you lied to me wth tears and curse words and misplaced righteousness. U really should think about what you did…on ur own. You really should think about that FACT before you call me another name. What kind of person does something like that?”
The man followed up with the following text to the plaintiff: “Abby, you ddnt refill ANYTHING at all. No type of birth control medication at all. June you did. You did NOT in july and august. Jeez….r you really still trying to claim? Again, I’m not trying to start shit. What’s done is done, but what’s happening was totally avoidable. You are NOT a victim. You did something wrong abby. Very wrong. Ps….it is not illigall for ME to have it. Ime being very technical here but I ddnt break any laws myself.”
About ten months later, the man mailed a gift to his son with a return address that the plaintiff did not recognize. The plaintiff conducted an internet search and determined that the return address belonged to the pharmacist. The plaintiff was also able to determine that the man and the pharmacist were married and that the pharmacist worked as a pharmacist at the local Walgreen’s where she filled her prescriptions. The plaintiff immediately contacted her local Walgreen’s to report her suspicion that the pharmacist had accessed her personal records and had disclosed the information to an unauthorized individual (the man, who was now the pharmacist’s husband).
Walgreen’s investigated the plaintiff’s complaint and determined that the pharmacist had committed a HIPAA/privacy violation, the pharmacist had viewed the plaintiff’s prescription information without consent and for personal purposes, but that Walgreen’s could not confirm that the pharmacist disclosed the plaintiff’s information to a third party. Nonetheless, Walgreen’s issued a written warning to the pharmacist and the pharmacist was required to retake a computer training program regarding HIPAA.
The plaintiff filed a complaint against the pharmacist for negligence/professional malpractice, invasion of privacy/public disclosure of private facts, and invasion of privacy/intrusion, as well as claims against Walgreen’s alleging respondeat superior, negligent training, negligent supervision, negligent retention, and negligence/professional malpractice.
In deciding the respondeat superior issue on appeal, the Appeals Court noted that the pharmacist was authorized to use the Walgreen computer system and printer, handle prescriptions for Walgreen customers, look up customer information on the Walgreen computer system, review patient prescription histories, and make prescription-related printouts. Furthermore, the pharmacist was at work, on the job, and using Walgreen equipment when she accessed the plaintiff’s confidential information, and the plaintiff belonged to the general category of individuals to whom the pharmacist owed a duty of privacy protection by virtue of her employment as a pharmacist.
The Appeals Court held that the fact that some of the pharmacist’s actions were authorized, or incidental to authorized actions, or of the same general nature as authorized actions, precluded summary judgment in this case. With regard to the issue of the professional malpractice of a pharmacist, the Appeals Court stated that Indiana law provides that a pharmacist shall hold in strictest confidence all prescriptions, drug orders, records, and patient information (Ind. Code § 25-26-13-15(a)) and that the pharmacist in this case unquestionably had a duty of confidentiality to the plaintiff and that the pharmacist had breached that duty. Because the plaintiff had provided evidence of the damages she sustained as a result of that breach, the Appeals Court held that the jury verdict would be affirmed against Walgreen’s based upon the respondeat superior liability of Walgreen, which attaches as a result of the liability of the pharmacist for her negligence/professional malpractice.
The Appeals Court held: (1) the trial court did not err denying Walgreen’s summary judgment and directed verdict motions on respondeat superior liability; (2) the trial court did not commit reversible error with respect to an ex parte brief filed by the plaintiff; (3) the jury instructions were not erroneous; and (4) the damages award was not excessive or based on improper factors.
Source Walgreen Co., Appellant-Defendant vs. Abigail E. Hinchy, Appellee-Plaintiff. No. 49A02-1311-CT-950.
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