Chicago Accident Law Blog
Illinois hospitals were granted immunity from disclosing confidential patient records by the Illinois Supreme Court. Bagent.v. Blessing Care, d/b/a Illini Hospital, 224 Ill. 2d 154, 862 N.E. 2d 985 (Jan. 19, 2007). An Illinois woman’s common law right of privacy claim against a hospital that her confidential medical records were divulged by an employee of the hospital was unanimously rejected by the high court last week. Defendant Mary Young was a phlebotomist employed by Illini Hospital. She had received confidentiality training from her employer regarding HIPAA, 110 Stat. 1936. Plaintiff Suzanne Bagent had a blood test with results being sent to Illini Hospital showing that she was pregnant.
Shortly thereafter defendant Mary Young visited a local tavern and shared the blood test results with plaintiff’s sister. Plaintiff complained to the hospital and thereafter filed a lawsuit against the phlebotomist and Illini Hospital under a doctrine of respondeat superior. The trial court dismissed Illini Hospital finding that disclosure of plaintiff’s medical records was “not made in the course of or within the scope of Young’s employment.”
Plaintiff appealed the dismissal to the Appellate Court which reversed holding that a jury should decide whether Young was acting within the scope of employment. Young v. Blessing Care, d/b/a Illini Hospital, 363 Ill. App. 3d 916, 844 N.E. 2d 469 (2006). The Illinois Supreme Court reversed the Appellate Court in Docket No. 102430.
The Illinois Supreme Court discussed the Restatement (Second) of Agency Sec. 228 which provides that: (1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master..
The Supreme Court held that all three criteria must be met to conclude that an employee was acting within the scope of employment. Plaintiff relied upon Section 229 of the Second Restatement which elaborates the first criteria of Section 228, including the admonition to consider such factors as whether the act is outside the enterprise of the employer and whether the employer has reason to expect that such an act will be done. Clearly disclosure of confidential medical information was not outside the enterprise of a hospital and the hospital had reason to be concerned that such an act would occur, why else provide training. The Court ignored these factors in its analysis.
In its unanimous opinion the Illinois Sup. Ct. strangely stated:
“.the ultimate question is whether or not the loss resulting from the employer’s acts should justly be considered as one of the normal risks to be borne by the employer.”
I agree with this statement of the Court but disagree with the analysis they use to immunize a hospital from liability for the release of confidential medical information of its patient by an employee of the hospital.
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The Court held as to the first prong of Section 228, that disclosure of plaintiff’s medical records was not the kind of conduct she was employed to perform. The Court goes on to state that “an act forbidden by an employer may be within the scope of employment….However, it must be remembered that an act is outside the scope of employment if it has no connection with the conduct the employee is required to perform.” Clearly maintaining confidentiality of patient’s medical records has a connection to conduct defendant was statutorily required to perform.
The second prong of Section 228 the Court conceded could be met since the phlebotomist was required to maintain the confidentiality of medical records 7 days per week, 24 hours per day.
The Supreme Court held that the Appellate Court erred in applying the third prong of Section 228 when the intermediate court stated: “..the duty not to do so was actuated by the needs and requirements of the employer.” The Supreme Court held that: “it cannot be fairly said that Young was motivated to serve the hospital when she made the disclosure.” In Gaffney v. Chicago, 302 Ill. App. 3d 41, 706 N.E. 2d 94 (1998), the City was held responsible under the doctrine of respondeat superior as a result of conduct of a police officer who did not properly secure his weapon while off duty in contravention of city policy. How did this conduct serve the city? How does the conduct of speeding bus drivers serve the CTA?
The import of this decision in Illinois is that no hospital or clinic can ever be held responsible for the actions of any of its employees in disclosing confidential medical information of one of its patients. Under what circumstances would disclosure of confidential medical information of a hospital’s patient by a hospital employee ever be said to further the interest of the hospital? Could not the same analysis be utilized in insulating a law firm from liability for disclosure of confidential information of a client by one of the firm’s clerical employees? The Court’s analysis is flawed, it should patient’s interest in maintaining that his medical information remains confidential that should be the central inquiry, not whether the hospital interests are furthered by the unauthorized disclosure. If this be the Illinois judiciary’s final word in this area, the legislature should step in and provide statutory penalties to hospitals for unauthorized disclosure of confidential medical information by one of its employees.