By: Andrew Egan, Esq.
On September 17, 2013, the Massachusetts Superior Court ruled on a motion for summary judgment in the case of Bryant v. Jackson,[i] finding that the defendant hospital: (1) could not be held responsible for the intentional release of a patient’s HIV status by its employee under the common law theory of vicarious liability; but (2) the hospital could be strictly liable for such disclosure under Massachusetts’s HIV Privacy Act.[ii]
Plaintiff Daphne Bryant, who is HIV-positive, received care from co-defendant Brigham and Women’s Hospital (BWH), where co-defendant Shona Jackson worked in the Patient Access Services Department.[iii] Bryant and Jackson were acquaintances. Bryant alleged that Jackson had improperly disclosed Bryant’s HIV status to a third party, who was a mutual acquaintance. A complaint from Bryant to BWH prompted an internal investigation by BWH, which revealed that Jackson had improperly accessed Bryant’s medical records, leading BWH to terminate Jackson. The evidence presented also showed that Jackson had undergone training regarding the privacy and security of medical information.
In her lawsuit, Bryant claimed that Jackson was negligent in disseminating her HIV status, and that BWH was vicariously liable for Jackson’s negligence. Bryant also claimed that Jackson’s supervisor Christie Collins and BWH were negligent in the training and supervision of Jackson. Finally, Bryant alleged that BWH violated M.G.L. c. 93A, Massachusetts’ consumer protection law, by virtue of violating the HIV Privacy Act. This case regards movements for summary judgment by Defendants BWH and Collins on all claims against them.
As a preliminary underpinning to their motions for summary judgment, the Defendants claimed that, although Jackson improperly accessed Bryant’s information, Bryant could not support the claim that Jackson disseminated Bryant’s information, and that Bryant therefore suffered no harms. The court denied the Defendants’ motion on this basis, finding the issue of dissemination to be in dispute.
The court granted summary judgment to Collins and BWH on the issue of negligent training and supervision of Jackson, finding that there was no evidence to support these claims.
BWH also moved for summary judgment with regard to the claim of vicarious liability by asserting that, even if Jackson had disseminated Bryant’s information, Jackson’s actions could not be imputed to BWH. In analyzing this question, the court focused on the employer-employee relationship, and the question of whether Jackson was acting within the scope of her employment when committing the alleged harmful disclosure. Acting within the scope of employment means the work was “of the kind she is employed to perform, occur[s] substantially within the authorized time and space limits, and [is] motivated, at least in part, by a purpose to serve the employer.”[iv] The court found that, although Jackson’s access of Bryant’s information was within the scope of her employment, the alleged disclosure was “simply gossip” in no way motivated by a purpose to serve BWH, and was therefore not within the scope of Jackson’s employment. The court granted summary judgment to the BWH on the claim of vicarious liability for Jackson’s negligence.
Finally, BWH moved for summary judgment with regard to the violation of M.G.L. c. 93A under the HIV Privacy Act by asserting that it had not made the alleged disclosure, but rather its employee (Jackson) had done so, and such disclosure was outside the scope of her employment. The court examined the statutory language, legislative history, and public policy behind the HIV Privacy Act and found that there were no exceptions to liability, not even for inadvertent or good-faith disclosures.[v] The court found that, as a “facility” under the definition of the HIV Privacy Act, BWH would be strictly liable for any violation of the HIV Privacy Act by an employee, such as Jackson. The court therefore denied BWH’s motion for summary judgment for violating the HIV Privacy Act, stating that, if a jury finds that Jackson did disclose Bryant’s HIV status, BWH will be strictly liable for that disclosure under the HIV Privacy Act, regardless of whether Jackson was acting within the scope of her employment.
Andrew R. Egan is an assistant general counsel with the Massachusetts Health Connector. He is a 2013 graduate of Boston University School of Law, where he served as an articles editor for the American Journal of Law and Medicine. He is a member of the Boston Bar Association’s Health Law Section, as well as the American Health Lawyer’s Association. During law school, he interned for the Massachusetts Commission Against Discrimination, the Boston Municipal Court, and the Massachusetts Health Connector.
[i] Bryant v. Jackson, 31 Mass. L. Rptr. No. 19, 425 (Nov. 4, 2013).
[ii] See M.G.L. c. 111 § 70F. The HIV Privacy Act prohibits the disclosure by a hospital of the results of an HIV test, or the identity of the subject of an HIV test, to anyone other than the subject of such tests without the subject’s informed written consent. A violation of the HIV Privacy Act is regarded as a per se violation of M.G.L. c. 93A § 2, which prohibits unfair or deceptive acts or practices, and which gives a private right of action for anyone injured by violation of that law. See Bryant at 428.
[iii] Specifically, Jackson worked as an access facilitator. “The position of access facilitator requires an employee to access patient information in order to perform her job function[, which] includes admitting patient’s administratively, assigning them to a unit in the hospital and assisting with appropriate billing.” Bryant at 425.
[iv] Id., citing Lev v. Beverly Enterprises-Massachusetts, 457 Mass. 234 (2010).
[v] The court cited Commonwealth v. Ortiz, 2001 WL 34129741, in which the Massachusetts Supreme Judicial Court stated, “The absence of any [exceptions to the prohibition on disclosure of HIV test results] in § 70F strongly suggests that the Legislature did not intend there to be any exceptions.” Id. at 428.