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.