McCullar v. Alliance Health Partners, LLC

Filing 33

MEMORANDUM OPINION re 32 Order on Motion for Summary Judgment. Signed by Senior Judge Glen H. Davidson on 7/25/17. (rel)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

ABERDEEN DIVISION

PLAINTIFF

HANNAH McCULLAR

CIVIL ACTION NO.1: 16-cv-00068-GHD-DAS

v.
ALLIANCE HEALTH PARTNERS, LLC
d/b/a Merit Health Batesville flk/a Tri-Lakes
Medical Center

DEFENDANT

MEMORANDUM OPINION DENYING

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Presently before the Court is Defendant Alliance Health Partners, LLC's motion for
summary judgment [20]. Upon due consideration, the Court finds the motion should be denied.

L

Factual and Procedural Background

On February 1,2016, Plaintiff Hannah McCullar ("Plaintiff') filed this diversity/personal
injury action against Defendant Alliance Health Partners, LLC ("Defendant") in the Circuit
Court of Clay County. On April 22, 2016, Defendant timely removed the action to this Court.
Subsequently, on April 27, 2016, Defendant filed its answer to the complaint. On February 22,
2017, Defendant filed the present motion for summary judgment [20]. Plaintiff filed a response
in opposition. Defendant has not filed a reply, and the time for doing so has now passed. The
matter is now ripe for review.
Plaintiff asserts causes of action against Defendant for invasion of privacy, intentional
infliction of emotional distress, and a claim under Mississippi statutory law for the improper
disclosure of Plaintiff s medical records. Plaintiff also asserts that she is entitled to punitive
damages for "Defendant's actions, [which Plaintiff claims] are so malicious, intentional, willful,

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wanton, and outrageous, with no legitimate purpose except to harm Plaintiff ...." PI.'s State-Ct.
Compi. [2] ,-r 8.
The following facts are not in dispute. Plaintiff gave birth to a child and then placed her
child for adoption at New Beginnings International Children and Family Services, Inc. (the
"adoption agency"). The biological father of the child is Markevius Frost. Mr. Frost asserted his
paternity, and the adoption agency instituted a legal action against Mr. Frost to terminate his
parental rights in the Chancery Court of Lee County in a case styled New Beginnings

International Children's and Family Services, Inc. v. Markevius Frost, No. 2012-1071-41-MM.
Attorney Christinia Townsend 1 represented Mr. Frost in that proceeding.

During her legal

representation of Mr. Frost, Ms. Townsend issued a subpoena duces tecum to Defendant for the
medical records of the minor child and of Plaintiff for a hearing on February 6, 2015. Defendant
furnished a certified copy of the medical records to Ms. Townsend. Plaintiff was not a party to
the chancery court proceeding. The chancery court hearing was continued; the medical records
were not entered into evidence.
Plaintiff alleges that Ms. Townsend subpoenaed Plaintiff s medical records from
Defendant without providing a Health Insurance Portability and Accountability Act ("HIP AA")
authorization and without notice to Plaintiff of the same. PI. 's State-Ct. Compi. [2] ,-r 4. Plaintiff
further alleges that Defendant "is required to obtain a [HIP AA] authorization before disclosing
the private, confidential records of a patient," but that instead of doing so, Defendant published
Plaintiffs private, confidential medical records to Ms. Townsend via United States mail instead
of forwarding them sealed to the court listed on the subpoena duces tecum. Id,-r,-r 5-7. Plaintiff

I Ms. Townsend's first name is misspelled in the complaint as "Christina." The correct spelling of Ms.
Townsend's first name is "Christinia."

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further asserts that Ms. Townsend improperly showed the medical records to at least four
individuals during the chancery court proceeding (apparently, Dan Davis, the attorney for the
adoption agency; Brian Starling, the guardian ad litem for the minor child; and legal staff in Mr.
Davis' office); Plaintiff maintains that Ms. Townsend "intentionally published [Plaintiffs]
medical records during a television press conference." Pl.'s Resp. app'n to Def.'s Mot. Summ.
J. [29] at 3, 5? Defendant contends that Mr. Frost gave an interview to a local television station
and showed the interviewer a copy of his DNA results establishing the paternity of the minor
child. Def.'s Mot. Summ. J. [20]

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10. Both parties agree that during the broadcast, there was a

brief display of a portion of a document; Plaintiff contends that the document was her own
medical record. Id.; PIo's Resp. app'n to Defo's Mot. Summ. J. [29] at 5. Plaintiff contends that
she "never knew about the disclosure of her medical records until one of the attorneys in the
[c]hancery [c]ourt matter informed her, after the disclosures occurred." PIo's Resp. app'n to
Def.'s Mot. Summ. J. [29] at 3 n.3. Plaintiff argues that "[n]one of [Ms.] Townsend's actions of
publishing [Plaintiffs] medical records would have been possible had [Defendant] not
wrongfully produced the records to [Ms.] Townsend." Id. at 5.

In Defendant's motion for summary judgment, Defendant argues that Plaintiffs claims
must be dismissed as a matter of law.

II.

Summary Judgment Standard

This Court grants summary judgment "if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any material fact
and that the movant is entitled to judgment as a matter of law." See FED. R. CIv. P. 56(a);

2 Plaintiff apparently has instituted a separate state-court action against Ms. Townsend in connection with
her alleged actions. See Pl.'s Resp. Opp'n to Defo's Mot. Summ. J. [29} at 4 nA.

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Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Weaver v.
CCA Indus., Inc., 529 F.3d 335,339 (5th Cir. 2008). The rule "mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a
sufficient showing to establish the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.
Ct. 2548.
The party moving for summary judgment bears the initial responsibility of informing the
Court of the basis for its motion and identifying those portions of the record it believes
demonstrate the absence of a genuine dispute of material fact. See id. at 323, 106 S. Ct. 2548.
Under Rille 56(a), the burden then shifts to the nonmovant to "go beyond the pleadings and by ..
. affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate
'specific facts showing that there is a genuine issue for triaL'" Id. at 324, 106 S. Ct. 2548;
Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001); Willis v. Roche
Biomedical Labs., Inc., 61 F.3d 313,315 (5th Cir. 1995). Where, as here, the parties dispute the
facts, the Court must view the facts and draw reasonable inferences in the light most favorable to
the plaintiff. See Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007)
(internal citations omitted). "However, a nonmovant may not overcome the summary judgment
standard with conclusional allegations, unsupported assertions, or presentation of only a scintilla
of evidence." McClure v. Boles, 490 F. App'x 666, 667 (5th Cir. 2012) (per curiam) (citing
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)).

III.

Analysis and Discussion

Defendant argues in its motion for summary judgment that Plaintiffs claims must be
dismissed for the following reasons: (1) HIPAA does not create a private action; (2) Plaintiff
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does not have a separate cause of action under Mississippi Code §§ 41-9-103 and 41-9-105, as
any liability imposed on Defendant would be for an alleged invasion of privacy for failure to
comply with Mississippi statutory law on the subpoena duces tecum; (3) Plaintiff has failed to
present proof on the elements of her invasion of privacy claim; and (4) Plaintiff has no grounds
for recovery under other Mississippi statutes, such as Mississippi Code § 13-1-21, concerning
liability for communicating privileged communication, as there is no evidence of willful,
reckless, or wanton acts or omissions as are required to sustain such a cause of action.
Plaintiff concedes she has no cause of action under HIP AA and does not present any
argument in support of a separate claim under Mississippi Code §§ 41-9-103 and 41-9-105.
However, she contends that she has causes of action for invasion of privacy, intentional infliction
of emotional distress, and improper release of records in violation of Mississippi Code § 13-1-21.
Plaintiff further maintains that Defendant violated HIP AA regulations by submitting the
requested medical records without notice to the patient of the request for records and an
opportunity for the patient to object. See 45 C.F.R. § 164.512. The Court looks to the elements
of each cause of action in tum.
1. Invasion of Privacy

With respect to Plaintiff s invasion of privacy claim, Defendant argues that Plaintiff has
failed to present proof on the elements of her claim, as (i) Plaintiff s identity was not
appropriated for an unpermitted use, (ii) Plaintiff was not held out to the public eye in a false
light, and (iii) it is not an invasion of privacy to provide information to a single person or even a
small group of persons, such as the attorneys connected with the chancery court proceeding.
Plaintiff argues that Defendant improperly published Plaintiff s medical records to Ms.
Townsend which resulted in public dissemination via email and a television press conference.
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Plaintiff further argues that the act of publication of these medical records effectively published
that Plaintiff had a history of sexually transmitted disease and that Plaintiff had prohibited
African-American visitors from her hospital room.

Plaintiff maintains that this publication

constituted a tortious publication of private facts that would be "highly offensive to a reasonable
person and ... not of legitimate concern to the public." Pl.'s Mem. Br. SUpp. Resp. Opp'n to
Def.'s Mot. Summ. J. [29] at 10. Plaintiff further maintains that the medical records portrayed
her "as a racist" and cast her "in a false public light." Id. Plaintiff contends that Williamson v.
Keith, 786 So. 2d 390 (Miss. 2001), a case relied upon by Defendant, is not on point; Plaintiff
further contends that Williamson involved an attorney's act ofimpropedy subpoenaing a minor's
medical records without providing notice of the subpoena, see Williamson, 786 So. 2d at 393, but
that the case sub judice involves the publishing of medical records to five people by email and to
the public by a news broadcast.
"The tort of invasion of privacy is composed of four separate sub-torts: (i). the intentional
intrusion upon the solitude or seclusion of another; (ii). the appropriation of another's identity for
an unpermitted use; (iii). the public disclosure of private facts; and (iv). holding another to the
public eye in a false light." Ayles ex rei. Allen v. Allen, 907 So. 2d 300, 306 (Miss. 2005).
Mississippi recognizes a cause of action for invasion of privacy based on public disclosure of
private facts in the form of medical records. See Franklin Collection Serv., Inc. v. Kyle, 955 So.
2d 284, 291 (Miss. 2007) (citing Young v. Jackson, 572 So. 2d 378, 382 (Miss. 1990) (adopting
RESTATEMENT (SECOND) OF TORTS § 652D)). To sustain such a claim on summary judgment,
Plaintiff must offer proof that " 'the matter publicized is of a kind that (a) would be highly
offensive to a reasonable person, and (b) is not of legitimate concern to the public.' " See id. at
291 (quoting RESTATEMENT (SECOND) OF TORTS § 652D). In the case sub judice, Plaintiffs
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medical records were confidential and protected by HIP AA, and Plaintiff alleges and provides
supporting documentation that Defendant improperly transmitted the records to Ms. Townsend,
who later emailed a copy of the medical records to other attorneys and legal staff in the chancery
court proceeding and published them in a television news conference. The record supports that
Defendant complied with the terms of the subpoena issued by the Chancery Court of Lee County
which directed Defendant to produce the medical records "to Attorney Christinia C. Townsend,
Esq." via United States mail to her post office box in West Point, Mississippi, as well as via
electronic mail to Ms. Townsend's email address so that Ms. Townsend could present the
information at "[t]rial ... on the part of [Mr.] Frost ... [on] the 19th day of August, 2014 ... to
give evidence in this matter." See Subpoena Duces Tecum [26-4] at 1-2. However, Plaintiff has
raised a genuine dispute of fact on her invasion of privacy claim as to whether Defendant
nonetheless failed to comply with Mississippi law and federal law. Plaintiff cites to Mississippi
law providing that medical records subject to a subpoena must be sent to the court wherein the
action is pending, specifically, "to the officer, body[,] or tribunal conducting the hearing, at a like
address."

See MISS. CODE ANN. § 41-9-105.

Plaintiff further cites to HIPAA regulations

providing that medical records shall not be produced unless the party seeking the records
provides the patient with notice of the request for records and an opportunity to object. See 45
C.F.R. § 164.512. Because Plaintiff has raised genuine disputes of material fact that preclude
summary judgment on the invasion of privacy claim, the Court finds that Defendant's motion for
summary judgment shall be denied as to that claim.
2. Intentional Infliction of Emotional Distress

With respect to Plaintiff s intentional infliction of emotional distress claim, Plaintiff
argues that Defendant transmitted Plaintiffs medical records to Ms. Townsend improperly, and
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that such transmission was willful or at a minimum grossly negligent and of the sort that evokes
outrage in a civilized society. Plaintiff further argues that the unprotected release of medical
records is outrageous in today's society, given the confidentiality of the same. Defendant does
not challenge Plaintiffs intentional infliction of emotional distress claim specifically.
The Court finds that Plaintiff has alleged an actionable intentional infliction of emotional
distress claim against Defendant that survives summary judgment. '" [M]eeting the requisites of
a claim for intentional infliction of emotional distress is a tall order in Mississippi.'" Gatheright
v. Clark, No. 16-60364, 2017 WL 728698, at *4 (5th Cir. Feb. 23, 2017) (per curiam) (citing
Speed v. Scott, 787 So. 2d 626,630 (Miss. 2001) (quoting Jenkins v. City of Grenada, 813 F.

Supp. 443, 446 (N.D. Miss. 1993) (internal quotation marks omitted)). "Mississippi requires the
conduct of the defendant be 'malicious, intentional, willful, wanton, grossly careless,
indifferent[,] or reckless,' LeafRiver Forest Prods., Inc. v. Ferguson, 662 So. 2d 648, 659 (Miss.
1995), or 'so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.' Speed, 787 So. 2d at 630 (internal quotation marks omitted) (quoting Pegues v.
Emerson Elec. Co., 913 F. Supp. 976, 982 (N.D. Miss. 1996))." Id.

In the case sub judice, Plaintiff attaches to her response the subpoena duces tecum issued
by the Chancery Court of Lee County for the medical records of the minor child and Plaintiff;
the subpoena directs Defendant to produce the medical records "to Attorney Christinia C.
Townsend, Esq." via United States mail to her post office box in West Point, Mississippi, as well
as via electronic mail to Ms. Townsend's email address so that Ms. Townsend could present the
information at "[t]rial ... on the part of [Mr.] Frost ... [on] the 19th day of August, 2014 ... to
give evidence in this matter." See Subpoena Duces Tecum [26-4] at 1-2.
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Although the record in the case sub judice supports that Defendant produced the records
directly to Ms. Townsend in compliance with the terms of the subpoena issued by the Chancery
Court of Lee County, Plaintiff has raised a genuine dispute of material fact as to whether if
Defendant did so without the proper HIP AA authorization and notice to Plaintiff and by not
producing the medical records to the chancery court directly, the disclosure of Plaintiffs medical
records was "grossly careless" or "indifferent" as required to sustain an intentional infliction of
emotional distress claim. See Leaf River Forest Prods., Inc., 662 So. 2d at 659. Therefore,
Defendant's motion for summary judgment shall be denied as to Plaintiffs intentional infliction
of emotional distress claim.

3. Mississippi Code § 13-1-21
Finally, with respect to Plaintiffs Mississippi statutory claim for the improper disclosure
of Plaintiffs medical records, Defendant argues that Plaintiff has no grounds for recovery under
Mississippi Code § 13-1-21 concerning

l~ability

for communicating privileged communication,

as there is no evidence of willful, reckless, or wanton acts or omissions as are required to sustain
such a cause of action.
Plaintiff argues that she has a viable claim for improper release of medical records
according to Mississippi Code § 13-1-2, because Defendant knew or should have known the
protections for medical records in place under Mississippi and federal law and that Defendant
willfully and intentionally disclosed Plaintiffs medical records without regard to these
protections.
"Section 13-1-21 of the Mississippi Code creates civil liability for improper disclosures
of medical information, but ... only for 'willful or reckless and wanton' disclosures." Doe v.

Rankin Med. Ctr., 195 So. 3d 705, 713 (Miss. 2016), reh'g denied (Aug. 11,2016) (citing MISS.
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CODE ANN. § 13-1-21). However, the Mississippi Supreme Court has stated: "We cannot find
anywhere in Section 13-1-21 of the Mississippi Code ... or Mississippi jurisprudence a cause of
action for a negligent breach of patient confidentiality."

fa.

In the case sub judice, Plaintiff attaches to her response the subpoena duces tecum issued
by the Chancery Court of Lee County for the medical records of the minor child and Plaintiff;
the subpoena directs Defendant to produce the medical records "to Attorney Christinia C.
Townsend, Esq." via United States mail to her post office box in West Point, Mississippi, as well
as via electronic mail to Ms. Townsend's email address so that Ms. Townsend could present the
information at "[t]rial ... on the part of [Mr.] Frost ... [on] the 19th day of August, 2014 ... to
give evidence in this matter." See Subpoena Duces Tecum [26-4] at 1-2. As stated, the record
in the case sub judice supports that Defendant produced the records directly to Ms. Townsend in
compliance with the terms of the subpoena issued by the Chancery Court of Lee County, but that
Defendant possibly violated HIPAA regulations by not obtaining Plaintiff's authorization and
ensuring she received notice of the same and possibly violated state law by not producing the
records directly to the chancery court. In the Court's opinion, Plaintiff has at least raised a
question as to whether such disclosure was "willful or reckless and wanton" as required to
sustain a claim for the improper disclosure of her medical records under Mississippi statutory
law. See Rankin Med. Ctr., 195 So. 3d at 713. Therefore, Defendant's motion for summary
judgment shall be denied on this claim, as well.

IV.

Conclusion

In sum, Defendant's motion for summary judgment [20] is DENIED, because genuine
disputes of material fact preclude summary judgment. This matter shall proceed to trial.
An order in accordance with this opinion shall issue this day.
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THIS,

the:Js. day of July, 2017.
SENIOR U.s.DISTRICT JUDGE

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