Hospital that broadcast patient information on radio doesn’t have to pay emotional distress damages, COA affirms

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Despite her private health information being broadcast to the public on the radio, a woman failed to overturn the entry of summary judgment in favor of an Anderson hospital that she sued for negligence.

Since 2001, Community Hospital of Anderson and Madison County has used an email-to-pager system to notify departments and staff members of any scheduling changes. The messaging system includes protected health information of patients.

A news reporter learned of the system and purchased a software-defined radio to investigate any possible HIPAA violations. The reporter discovered they were able to intercept the transmissions and later decoded them.

In 2019, Brittany Rubendall was scheduled to have an add-on same-day procedure. The hospital used its email-to-pager system to inform the surgery department of Rubendall’s add-on surgery.

A few months later, Rubendall was contacted by the reporter informing her that they were able to decode the transmission sent by the hospital. The reporter was able to recite her date of birth, the date she received the treatment in the emergency room and the diagnosis she received from the doctor.

Rubendall filed a putative class-action lawsuit against the hospital claiming negligence and invasion of privacy. The hospital attempted to dismiss the complaint under Indiana Trial Rule 12(B)(6), but the Madison Circuit Court denied the motion.

Rubendall then filed an amended complaint, and the hospital answered and filed affirmative defenses.

The matter remained largely quiet until the Indiana Supreme Court ruled in Cmty. Health Network v. McKenzie, 185 N.E.3d 368 (Ind. 2022).

There, the court addressed the requirements for emotional distress damages in a negligence action and recognized public disclosure of private facts, or PDPF, as a viable cause of action in Indiana. The court also addressed the element of publicity in proving a PDPF claim.

The hospital filed a motion to stay briefing on class certification so it could seek summary judgment. The trial court granted that motion and later granted summary judgment for the hospital.

The trial court relied on McKenzie in ruling that Rubendall couldn’t recover emotional distress on her negligence claim because she didn’t satisfy the Modified Impact Rule. It also ruled that her PDPF claim failed because the designated evidence negated the publicity element.

Rubendall then appealed but the Court of Appeals of Indiana affirmed.

Rubendall presented two issues to the court.

First, she argued the trial court erred in concluding her negligence claimed failed as a matter of law because she didn’t satisfy the Modified Impact Rule.

Rubendall labeled her damages as “loss of privacy,” which she associated with “embarrassment, stress and anxiety.” However, under the Modified Impact Rule, the COA concluded she didn’t suffer physically.

“Because she admits that she has not suffered any physical impact, her negligence claim fails as a matter of law,” Chief Judge Robert Altice wrote.

The second issue on appeal was whether the trial court made an error in concluding Rubendall’s PDPF claim failed as a matter of law because there wasn’t evidence to support the finding.

Rubendall argued that because the hospital broadcast patients’ personal information over short-wave radio airwaves without encryption, her privacy was invaded. She relied on Yath v. Fairview Clinics, N.P., 767 N.W.2d 34 (Minn. Ct. App. 2009), to support her argument.

In Yath, private information was available on the internet, but only a small amount of people viewed it. The Minnesota court viewed that disclosure as being similar to a newspaper or radio broadcast because the information was available to the public.

“We first note that Yath has no precedential value and that, in any event, it is distinguishable,” Altice wrote.

For its part, the hospital noted that the messages could only be accessed at a precise moment, rather than readily available to the public.

“For these reasons, the Hospital’s transmission of PHI via short-wave radio airwaves between departments is not actionable here,” Altice concluded. “As in McKenzie, where our Supreme Court concluded as a matter of law that the designated evidence did not support a finding of publicity, we likewise conclude that there is no designated evidence that the Hospital disclosed the information to, or in a way that was sure to reach, the public or a large number of people.”

The case is Brittany Rubendall, on her own behalf and on behalf of those similarly situated v. Community Hospital of Anderson and Madison County, 22A-CT-2223.

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