In its opinion filed on November 1, 2018, the Supreme Court of Virginia (“Virginia Supreme Court”) discussed the liability of a medical practice for its employees’ unauthorized access to and disclosure of a patient’s confidential medical information. The plaintiff’s complaint alleged that two employees of the defendant medical practice obtained unauthorized access to the plaintiff’s medical diagnosis contained in her medical records.
The plaintiff based her unauthorized-disclosure claim against the defendant medical practice on two theories: (i) that it was vicariously liable under respondeat superior principles for the breach by its two employees of their duties not to disclose and (ii) that it was directly liable because it failed to secure her confidential medical information from unauthorized access and disclosure.
The Virginia Supreme Court stated that under the traditional doctrine of respondeat superior, an employer is liable for the tortious act of his employee if the employee was performing his employer’s business and acting within the scope of his employment. The doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of some neglect or wrong at the time and in respect to the very transaction out of which the injury arose.
The Virginia Supreme Court stated that it’s established test limits respondeat superior liability to tortious acts performed within the scope of the duties of the employment and in the execution of the service for which the employee was engaged. It simply is not enough that the employee’s claim arose out of an activity which was within the employee’s scope of employment or within the ordinary course of business but instead, the employee must have committed the tort while actively engaged in a job-related service. Respondeat superior liability cannot be established merely by showing that the employee was “on the clock,” using the employer’s property, or on the employer’s premises at the time of the alleged tortious acts or omissions.
The Virginia Supreme Court stated that the employee’s motive in committing the tortious act plays a role in the job-related service doctrine. The tortious act must not arise wholly from some external, independent, and personal motive of the employee: a servant’s tortious act is within the scope of employment if, but only if it is actuated, at least in part, by a purpose to serve the master. In short, an employee’s act is not within the scope of employment when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.
In the case the Virginia Supreme Court was deciding, the plaintiff alleged that the defendant medical practice’s two employees had committed the torts in the context of their employment with the defendant medical practice, and the Virginia Supreme Court stated that these allegations created a rebuttable presumption that facts exist (though not specifically pleaded) that would satisfy the established test for vicarious liability: that the two employees committed tortious acts within the scope of their duties of employment and in the execution of the service for which they were engaged.
With regard to the plaintiff’s two theories of direct liability against the defendant medical practice, the Virginia Supreme Court referenced its decision in a previous case in which it held that absent a statute to the contrary or a risk of serious danger to the patient or others, a health care provider owes a duty to the patient not to disclose information gained from the patient during the course of treatment without the patient’s authorization, and that a violation of this duty gives rise to an action in tort.
In the present case, the Virginia Supreme Court stated that the plaintiff fails to allege that the two employees acted with the requisite corporate authority: “A corporate defendant may be liable as a primary tortfeasor (independent of respondeat superior liability) if it authorized, directed, ratified, or performed the tortious conduct through those who, under the governing management structure, had the discretionary authority to act on behalf of the corporation. In the corporate context, this statement would include corporate officers acting with authority under the corporate bylaws or boards of directors acting with authority under the corporate charter. In contrast, if a mere employee commits the tortious conduct, the corporate employer will not be subject to direct liability, technically speaking, but rather only to respondeat superior liability.”
The Virginia Supreme Court held that the plaintiff did not allege that the two employees were corporate officers or authorized agents of the defendant medical practice. As a result, the defendant medical practice can only be liable, if at all, for the tortious acts of the two employees under respondeat superior principles.
Source Parker v. Carilion Clinic, Record No. 170132.
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