ROBERT E. WIER, Magistrate Judge.
Defendant, Bourbon Community Hospital, LLC ("BCH"), moved for summary judgment on all claims made by Plaintiff, Katherine White. DE #32. Plaintiff responded, DE #34, and Defendant replied, DE #35. The motion is ripe for consideration. For the following reasons, the Court
White's complaint stems from allegedly defamatory statements made by BCH
At the time of her termination by BCH, White worked as a behavioral health technician at Stoner Creek, a mental health facility contained within the structure of BCH. DE #32-14 (White Dep.), at 1 (Dep. p. 100).
On the night of February 29, 2012, White worked a shift in the Adult Behavioral Health Unit at Stoner Creek, along with April Peace, a Licensed Practical Nurse (LPN), Mike Howard, another behavior health technician, and an unnamed RN. Id. at 40-41 (Dep. pp. 139-140). White and BCH offer differing accounts of the events that led to White accessing Patient A's protected healthcare information. They do, however, agree on certain facts. Using BCH's health information management system known as HMS GUI, White viewed certain health information of Patient A. Id. at 51-52 (Dep. pp. 150-51); DE #32-8 (Peace Dep.), at 28. The information displayed upon accessing HMS GUI included (as to various occasions) Patient A's patient number, name, admission date, discharge date, billing date, and hospital service code. DE ##32-14, at 51 (White Dep. pp. 150); 32-7 (Sadler Dep.), at 17-18. The parties agree that BCH's privacy policies and HIPAA protected the accessed information.
Additionally, the parties do not dispute how the HMS GUI system functions. Within HMS GUI, a hospital employee, having the requisite access, can search for health care records of past and current patients. DE #32-7 (Sadler Dep.), at 12. A basic search using the surname of a patient yields an initial results screen containing seven names. Id. at 14. The resulting names populate in alphabetical order by surname, then given name. Id. The initial results or "lookup" screen for HMS GUI populates seven names, even if less than seven patient names of the searched surname exist in the system. Id. at 16. For example, a search for the surname "Hardy" in a training program meant to replicate HMS GUI returns patients with five distinct surnames. Id. Similarly, a proper or improper search for patient "Smith" would yield seven lookup results for, potentially, several individuals named Smith.
Beyond these agreed facts, the parties' accounts diverge. According to White, at approximately 10:20 p.m. on February 29, she received a telephone call from Patient B requesting potential admission at the Stoner Creek facility.
Peace, who reported salient facts to BCH higher-ups, provides a sharply different story. A written statement, submitted on March 1, 2012, contains her complete description of events, see DE #32-8 (Peace Dep.), at 19:
Id. at 45 (Dep. Ex. 1). According to Peace, prior to their conversation, White was seated at the nursing station and between tasks. Id. at 24. However, during her deposition testimony, Peace was unable to recall precisely what White might have been doing prior to accessing HMS GUI. Id. at 25-26. She also stated she did not know why White would have been in HMS GUI viewing Patient A's health information. Id. at 28, 39.
At the end of her shift on the morning of March 1, Peace reported her version of the night's events to Stoner Creek Director Vivian Hill. Id. at 41-43. After this initial report to Hill, Peace apparently met with Hill and BCH's Human Resource Director Roger Davis. Id. This prompted Peace to provide the referenced written statement.
On March 5, 2012, Davis,
Following termination, White filed a claim for unemployment compensation. DE #32-15 (White Dep.), at 43 (Dep. Ex. 9).
White sued BCH in state court, principally alleging defamation via statements made in the termination meeting and to the KUIC. DE #1-1 (State Court Record), at 1-4. BCH removed on diversity, and the Court now addresses the pending dispositive motion.
The Court finds that Kentucky law protects BCH's communications and deliberations concerning the fateful leap day computer access by White. She may or may not have queried for an improper purpose—that is a question of fact contested and not here resolved—but BCH acted properly on the information it had. Kentucky conclusively shields, via a qualified privilege, BCH's agents' pertinent communications within the employment discipline process. Additionally, Kentucky statutorily cloaks with immunity the KUIC communications. Finally, to the extent White presents an IIED claim, the claim has fatal flaws. BCH is entitled to summary judgment, and the Court
A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986); Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not "weigh the evidence and determine the truth of the matter" at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986).
The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986) (requiring the moving party to set forth "the basis for its motion, and identify[] those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate an absence of a genuine issue of material fact"); Lindsay, 578 at 414 ("The party moving for summary judgment bears the initial burden of showing that there is no material issue in dispute."). If the moving party meets its burden, the burden then shifts to the nonmoving party to produce "specific facts" showing a "genuine issue" for trial. Celotex Corp., 106. S. Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, "Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient 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., 106 S. Ct. at 2552; see also id. at 2557 (Brennan, J., dissenting) ("If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may satisfy Rule 56's burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim." (emphasis in original)).
A fact is "material" if the underlying substantive law identifies the fact as critical. Anderson, 106 S. Ct. at 2510. Thus, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. A "genuine" issue exists if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 2511; Matsushita Elec. Indus. Co., 106 S. Ct. at 1356 ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'") (citation omitted). Such evidence must be suitable for admission into evidence at trial. Salt Lick Bancorp. v. FDIC, 187 F. App'x 428, 444-45 (6th Cir. 2006).
White contends that BCH "alleged that Plaintiff had wrongfully accessed patient records without a legitimate basis for doing so, thereby violating hospital policy, Federal law (HIPPA) [sic] and the privacy rights of certain patients" and then "published its false allegations to co-workers and others in Bourbon County and Central Kentucky health care communities . . . [and] in resisting her lawful attempt to obtain unemployment benefits following her wrongful discharge." DE #1-1, at 1-2. In its motion, BCH focuses defensively on two instances where it allegedly defamed Plaintiff by publishing "false allegations": (1) during the March 5, 2012, termination meeting and (2) in Davis's letter to the KUIC. DE #32-1 (Memorandum in Support), at 2. Plaintiff does not contest this characterization of the publications at issue in her claim, see DE #34-1 (Corrected Response), at 15 ¶ 2, 20-21, and she does not cite or rely on additional instances of publication. The Court, therefore, cabins its analysis accordingly.
Relying on Kentucky law
Under Kentucky law, the elements of a defamation
However, in some situations, "otherwise defamatory-per-se communications are allowed because the societal interest in the unrestricted flow of communication is greater than the private interest." Id. This qualified privilege
White does not dispute that the qualified privilege initially applies in this case; she contends BCH waived or abused the protection. DE #34-1, at 2, 19-20. Because the privilege undoubtedly applies, White thus faces the burden of defeating the privilege. To do so, she must show "both actual malice and falsity." Toler, 458 S.W.3d at 283. Clearly, "the burden of showing such abuse of privilege is the plaintiff's[.]" Id. at 284.
Plaintiff spends much of her response attempting to establish the falsity of BCH's statements. White contends that her access to Patient A's protected health information via HMS GUI was proper. Per Plaintiff, she searched the HMS GUI system as part of her normal work duties as an after-hours behavioral health technician. DE #34-1 (Corrected Response), at 8-9. White testified that "[Patient B] called inquiring about getting — you know, said he had been a patient at Stoner Creek in the past and that he would like to come in for detox and that's when, you know, I went to GUI to look and he said he would call me back[.]" DE #32-14 (White Dep.), at 42 (Dep. p. 141). She searched (per her described training) the system by Patient B's surname—the same surname as Patient A. Id. As White details by reference to the deposition testimony of BCH employees, HMS GUI is designed to populate at least seven entries when searched and pulls data from across the hospital. DE ##32-4 (Davis Dep.), at 71-72; 32-7 (Sadler Dep.), at 18. Further, Plaintiff argues—and BCH employees seem to agree—that the viewing of other patients' health information does not violate BCH privacy policies or HIPAA when viewed incidental to a legitimate search. DE #34-1, at 17; see DE #32-4 (Davis Dep.), at 12-15; DE #32-7 (Sadler Dep.), at 22-24.
BCH initially argues that summary judgment is appropriate because the statements—that Plaintiff inappropriately accessed protected health information—were true.
The propriety of White's access surely is a contested fact. White's access of Patient A's records was either the unauthorized access of an employee checking up on the medical procedures of a friend and colleague or was legitimately incidental to her duties as a behavioral health technician, which include patient intake on the evening shift, DE #32-8 (Peace Dep.), at 29. The competing accounts contained in the sworn deposition testimony of White and Peace create a factual issue as to the alleged defamatory statements' truth. If White's version of events is accurate, then HMS GUI pulled up Patient A's records when White properly queried the surname shared by Patient A and Patient B. The computer audit is logically corroborative of both versions. Thus, the record does not support summary judgment based on the truth defense.
However, a demonstrated issue of fact regarding falsity is immaterial absent a corresponding fact issue as to malice. In order to show BCH abused the qualified privilege and acted with "actual malice," White must show: "(1) the publisher's knowledge or reckless disregard as to the falsity of the defamatory matter; (2) the publication of the defamatory matter for some improper purpose; (3) excessive publication; or (4) the publication of defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged." Toler, 458 S.W.3d at 284 (quoting Restatement (Second) of Torts § 596 cmt. a (1977)) (internal quotation marks omitted). "[The statement's] falsity alone will not demonstrate abuse of the privilege that attached[.]" Harstad v. Whiteman, 338 S.W.3d 804, 813 (Ky. Ct. App. 2011). "If the plaintiff fails to adduce such evidence sufficient to create a genuine issue of fact, qualified privilege remains purely a question of law[.]" Id. at 811.
White alleges that BCH abused its qualified privilege by its "reckless disregard as to the falsity of the defamatory matter." DE #34-1 (Corrected Response), at 19. Outside of arguing the general falsity of the statements, which in and of itself is insufficient to demonstrate abuse, Plaintiff focuses the reckless disregard argument on what she characterizes as BHC's, and particularly HR Director Davis's, shoddy investigation into the truth of her alleged violation. Id. at 11-14. She cites Davis's apparent lack of knowledge regarding the HMS GUI system, his failure to interview Peace, security coordinator Sadler, or Patient A, the general brevity of the termination meeting, and his failure to investigate Plaintiff's alternative version of events. Id.
None of these arguments raises a triable issue on malice. "Reckless disregard means the speaker either (1) entertained serious doubts as to the truth or falsity of the statements or (2) had a high degree of awareness as to whether the statement was probably false." Toler, 458 S.W.3d at 289 (internal quotation marks omitted). As much as Plaintiff may criticize BCH's investigation as deficient, she does not and cannot dispute the underlying facts of the investigation that did occur as of March 5. Following Peace's originating report to Hill, HIPAA Officer Terrell became aware of the alleged violation. Either Davis or Hill obtained a written account from Peace. Terrell confirmed White's access of Patient A's data on HMS GUI via security officer Sadler, who conducted an audit that produced an objective audit trail. After confirming (at least in significant part) Peace's report via Sadler's audit, Davis called Plaintiff to a meeting to convey the allegation. At no point in this process did BCH or its officers receive information casting any doubt on the validity of their perceptions. See Harstad, 338 S.W.3d at 813. At the time the alleged defamatory statements occurred, Plaintiff had offered nothing to suggest an innocent alternative.
The Court stresses that the malice assessment focuses on what BCH fairly knew when it made the March 5 statements. The Peace report detailed troubling, obviously HIPAA-violative, and deceptive conduct. The audit trail unequivocally confirmed that White had, indeed, accessed a lookup screen including Patient A's information. That data included protected health information.
BCH actors honestly and rationally processed the data in hand and reached collective conclusions about that data. The determination of a HIPAA violation, whether ultimately accurate or not, rested solidly on a foundation of perceived fact. See Calor v. Ashland Hosp. Corp., 2011 WL 4431143, at *7 (Ky. September 22, 2011) ("And, unless the statement is one made in reckless disregard of the available facts,
Where proof impugning the qualified privilege is inadequate to create a factual dispute, summary judgment is proper
"To make out a claim of IIED, the following elements must be proved: (1) the wrongdoer's conduct must be intentional or reckless; (2) the conduct must be outrageous and intolerable in that it offends against generally accepted standards of decency and morality; (3) there must be a causal connection between the wrongdoer's conduct and the emotional distress; and (4) the emotional distress must be severe." Gilbert v. Barkes, 987 S.W.2d 772, 777 (Ky. 1999). "Liability has been found only where the conduct has been 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." Highlands Hosp. Corp. v. Preece, 323 S.W.3d 357, 368 (Ky. Ct. App. 2010) (quoting Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990)). "Termination from employment . . . is insufficient to constitute outrageous conduct sufficient to support a claim for intentional infliction of emotional distress." Id.
To the extent Plaintiff attempts a claim for intentional infliction of emotional distress,
For all of these reasons, the Court also grants summary judgment as to any IIED claim.
For the forgoing reasons, the Court
BCH's fourth argument, that statements by BCH were "pure opinion," rests on shakier ground. Assuming that the alleged defamatory statements occurred in the form of opinion, which is debatable, see DE #32-4 (Davis Dep.), at 34, 124 (Dep. p. 34, Ex. 5), an opinion statement "is actionable only if it implies the allegation of undisclosed defamatory fact as the basis for the opinion." Yancey v. Hamilton, 786 S.W.2d 854, 857 (Ky. 1989) (quoting Restatement (Second) of Torts § 566 (1977)) (quotation marks omitted). The Court "must determine whether an expression of opinion is capable of bearing a defamatory meaning because it may reasonably be understood to imply the assertion of undisclosed facts which may justify the expressed opinion about the undisclosed facts." Id. Essentially, "if the recipient draws the reasonable conclusion that the derogatory opinion expressed in the comment must have been based on undisclosed defamatory facts, the defendant is subject to liability." Id. The basic characterizations at issue—that White violated HIPAA and BCH privacy policies—are heavily, indeed essentially, factual. Further, even a true or "pure" opinion on disclosed facts does not protect the facts themselves from being actionable (if defamatory). Finally, the record shows, that as to the collective decision at BCH (and relative to the termination meeting), the underlying facts were not universally available to everyone in the room. The Court, while it does not resolve the argument here, does not find the opinion argument one that disposes of the claim in BCH's favor. See, e.g., Cromity v. Meiners, ___ S.W.3d ___, 2015 WL 5634420, at *3 (Ky. Ct. App. September 25, 2015), petition for discretionary review filed, No. 2015-SC-000621 (Ky. November 2, 2015) ("Still, as discussed in the above hypothetical, even if a speaker discloses the facts on which he bases his opinion, the statement may nonetheless be defamatory if the disclosed facts are incomplete, incorrect, or if his assessment of them is erroneous." (citing Milkovich v. Lorain Journal Co., 110 S.Ct. 2695, 2705-06 (1990))); id. (noting that "opinion" could be "actionable if [speaker] failed to state the facts in support of his opinion, failed to give a complete rendering of the facts, or gave facts that were provable as false."); Restatement (Second) of Torts § 566 (1977) ("(1) If the defendant bases his expression of a derogatory opinion of the plaintiff on his own statement of false and defamatory facts, he is subject to liability for the factual statement but not for the expression of opinion."). The Court cites Cromity only to illustrate the point, not as final precedent. BCH does not convince the Court that the opinion argument is dispositive.
