FILED Jun 05 2024, 9:22 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana Alexa Harris, Jillian Tomes, Alisha Bonneville, Ashley Schimmelman, Madison Hillyard, Alyssa Leffler, Tori Hildebrandt, Devan Grammer, Samantha Robbins, Olivia Baird, Addison Lenn, Amy Seibert, and Nicole Haag, Appellants-Plaintiffs
v.
Deaconess Hospital, Inc., Deaconess Hospital Systems, Inc., Deaconess Clinic, Inc., Deaconess Clinic At Work, and Akitto Ledda, D.O., Appellees-Defendants
June 5, 2024 Court of Appeals Case No. 24A-CT-47 Appeal from the Vanderburgh Superior Court The Honorable Kelsey B. Hanlon, Special Judge Trial Court Cause No. 82D07-2204-CT-1698
Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 1 of 19 Opinion by Judge Vaidik Judges May and Kenworthy concur.
Vaidik, Judge.
Case Summary [1] A doctor improperly accessed medical records of thirteen women who weren’t
his patients but whom he had met or encountered in social settings, online, or at
work. The women sued the medical clinic that employed the doctor, seeking to
hold it vicariously liable for the doctor’s conduct under the doctrine of
respondeat superior. To do so, they must prove two things: (1) the doctor
committed one or more torts against them and (2) he was acting within the
scope of his employment when he committed the tort(s). The women claim the
doctor committed two torts—invasion of privacy by intrusion into emotional
solace and intentional infliction of emotional distress—and that he did so
within the scope of his employment. The trial court granted summary judgment
to the clinic, concluding that the women can’t prevail on the underlying tort
claims and that, even if they could, the doctor wasn’t acting within the scope of
his employment.
[2] We affirm in part, reverse in part, and remand, reaching three conclusions.
First, while there are strong arguments for recognizing the tort of intrusion into
emotional solace, at least in the context of medical-record snooping, that
recognition must come from our Supreme Court. Second, the tort of intentional
Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 2 of 19 infliction of emotional distress—despite its name—can be proven if the
defendant intentionally or recklessly inflicted emotional distress, and there are
genuine issues of material fact as to whether the doctor did so in this case,
precluding summary judgment on that claim. Third, even though the clinic
prohibited the doctor from accessing medical records for personal reasons, there
is a genuine issue of material fact as to whether the doctor was acting within the
scope of his employment when he did so, precluding summary judgment on the
issue of vicarious liability.
Facts and Procedural History [3] In late 2018, Deaconess Clinic, Inc., hired Dr. Akitto Ledda to work for its
urgent-care centers. (We will use “Deaconess” to refer collectively to Deaconess
Clinic, Inc., and the other corporate defendants: Deaconess Hospital, Inc.;
Deaconess Hospital Systems, Inc.; and Deaconess Clinic at Work.) Dr. Ledda
agreed in writing to Deaconess’s policies prohibiting employees from accessing
patient records for personal reasons. He also received a variety of training on
the importance of patient privacy.
[4] Nonetheless, between February and April of 2020, Dr. Ledda improperly
accessed the records of a former patient, Mandy Ford, three times. Ford didn’t
know about the violations, but in October 2020, she submitted a complaint to
Deaconess, claiming, “Dr. Ledda contacted me via social media (facebook) and
propositioned me by messaging me ‘hey, come over’ and provided an address.”
Appellants’ App. Vol. IV p. 134. Ford said the contact was “very distressing”
Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 3 of 19 and asked that Dr. Ledda’s conduct be investigated. Id. After determining that
Dr. Ledda had not used his Deaconess email account to contact Ford,
Deaconess took no action against him and did no further investigation.
[5] In April 2021, Deaconess activated violation-detection software that uses
artificial intelligence and advanced analytics to analyze the access of patient
records. In December 2021, the program detected suspicious activity by Dr.
Ledda. Over the next two months, Deaconess investigated and learned that,
between June 2020 and January 2022—after viewing Ford’s records—Dr.
Ledda improperly accessed the records of forty-six other people who had never
been his patients. When confronted with this information, Dr. Ledda admitted
that he had improperly accessed the records for personal reasons. Deaconess
fired Dr. Ledda and sent breach-notification letters to the forty-six individuals.
[6] Thirteen women who received notification letters—the plaintiffs in this
matter—claim that Dr. Ledda had met or encountered them in social settings,
online, or at work, with some describing troubling behavior (as set forth in the
Plaintiffs’ opening brief on appeal):
Olivia Baird met Dr. Ledda in April 2021 when Dr. Ledda approached her and her group of friends at a bar. She encountered him again several times thereafter – each time following her around, trying to hang out with her, and hugging her.
Alisha Bonneville met Dr. Ledda when he introduced himself to her at a bar. She saw him again at a party.
Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 4 of 19 Devan Grammer first met Dr. Ledda when he approached her at a bar (she was alone), asked if he could sit with her, hugged her, and then asked her out on a date.
Nicole Haag first met Dr. Ledda at a bar. For 10-12 months after that first meeting, Ms. Haag noticed that Dr. Ledda always showed up at locations where she and her friends were – often following them to other bars without actually talking to them or being in their group. Sometimes, Dr. Ledda would come into the retail store where Ms. Haag worked – though he would never buy anything. Then, on April 10, 2021, Dr. Ledda messaged Ms. Haag to ask if she would be going out to the bars that evening; Ms. Haag told Dr. Ledda that she would not be going out because she was sick. Then, Dr. Ledda accessed Ms. Haag’s chart and, that same evening, showed up at a bar where Ms. Haag was present. Someone drugged Ms. Haag’s drink, and she had to be carried out of the bar.
Alexa Harris met Dr. Ledda at a sports bar when he approached her and introduced himself. After that, Dr. Ledda routinely showed up at her work on nights she bartended and would ask her out on dates.
Ashley Schimmelman met Dr. Ledda at an Evansville bar after which Dr. Ledda texted her numerous times (to which she never replied). At some point thereafter, she saw Dr. Ledda again at a bar when he sat at a table near her and texted her that “she looked really good.” Though Ms. Schimmelman blocked Dr. Ledda’s number after that, he nevertheless showed up at her work with cookies and a letter. Ms. Schimmelman instructed Dr. Ledda to leave her alone; yet Dr. Ledda again showed up one night when she and her friends were out at the bars, following her around until one of her friends confronted Dr. Ledda.
Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 5 of 19 Tori Hildebrandt met Dr. Ledda at a bar when he approached her and introduced himself. As a friend of Ashley Schimmelman, Ms. Hildebrandt often would be present when Dr. Ledda would approach her group of friends, making her uncomfortable to the point that she once considered contacting law enforcement.
Madison Hillyard first met Dr. Ledda at a bar when he bought her a drink. Ms. Hillyard encountered Dr. Ledda multiple times after that during which Dr. Ledda was “persistent in pursuing her.” Dr. Ledda hugged her during one of these encounters. Eventually, Ms. Hillyard’s coworkers persuaded Dr. Ledda to leave her alone.
Alyssa Leffler first met Dr. Ledda while out celebrating a friend’s birthday on January 19, 2022 – one day prior to Dr. Ledda’s access of her medical chart. On that occasion (and on multiple occasions thereafter), Dr. Ledda offered to purchase her drinks when he would encounter her out at the bars.
Addison Lenn never met Dr. Ledda in person. Having connected on Facebook through a mutual connection, Addison accidentally reacted to a story Dr. Ledda posted on January 14, 2021. That same day, Dr. Ledda accessed her medical chart.
Samantha Robbins worked with Dr. Ledda at Deaconess. Often, Dr. Ledda would go out of his way to encounter her – sometimes even using the restroom and breakroom by her office despite having his own restroom and breakroom. On one occasion, Dr. Ledda came into the office (on his day off) and asked Ms. Robbins to attend a concert with him. Thereafter, he messaged her on Facebook asking for a date – which led Ms. Robbins to block him on Facebook. He also used Ms. Robbins’ arm to create a medical splint – a request which Ms. Robbins did not feel she could refuse because of Dr. Ledda’s position at Deaconess.
Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 6 of 19 When informed that she would be “floated” to Dr. Ledda’s clinic, she left her employ with Deaconess.
Amy Seibert does not remember meeting Dr. Ledda, but she worked as a server/bartender at a popular Evansville bar Dr. Ledda would frequent.
Jillian Tomes worked at a bar Dr. Ledda frequented. Dr. Ledda would constantly hit on her, brag about being a doctor, and ask her to go boating. One night, Ms. Tomes encountered Dr. Ledda at another bar which led to Dr. Ledda following her continuously and trying to talk to her until Ms. Tomes enlisted the help of a male friend to keep Dr. Ledda away from her.
See Appellants’ Br. pp. 14-16.
[7] These women (“the Plaintiffs”) filed suit against Dr. Ledda and Deaconess.1 As
relevant here, the Plaintiffs claimed that (1) Dr. Ledda committed the torts of
intrusion into emotional solace and intentional infliction of emotional distress
and (2) he did so within the scope of his employment, making Deaconess
vicariously liable for his torts under the doctrine of respondeat superior.2 The
Plaintiffs reached a settlement with Dr. Ledda but kept their claims against
Deaconess.
[8] Deaconess moved for summary judgment, arguing: (1) Indiana’s appellate
courts have declined to recognize the tort of intrusion into emotional solace; (2)
1 Mandy Ford was also named as a plaintiff but later voluntarily dismissed her claims. 2 The Plaintiffs’ complaint included other claims that aren’t at issue in this appeal.
Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 7 of 19 Dr. Ledda didn’t intend to inflict emotional distress; and (3) in any event, Dr.
Ledda’s acts were outside the scope of his employment, meaning Deaconess
can’t be held vicariously liable. In response, the Plaintiffs conceded that
“Indiana does not currently recognize Intrusion into emotional solace” but
argued that “this issue clamors for examination by our Supreme Court.”
Appellants’ App. Vol. III p. 233. The Plaintiffs disputed Deaconess’s arguments
regarding intentional infliction of emotional distress and scope of employment.
Among other things, the Plaintiffs designated the affidavit of a HIPAA security
expert who opined that Deaconess should have and could have done more to
monitor Dr. Ledda’s record access, especially after receiving Ford’s complaint.
Appellants’ App. Vol. IV pp. 19-28.
[9] After a hearing, the trial court granted Deaconess’s motion. It accepted the
Plaintiffs’ concession that intrusion into emotional solace isn’t recognized
under Indiana law. The court also agreed with Deaconess that Dr. Ledda didn’t
intend to cause emotional distress to the Plaintiffs and that, regardless, his acts
were outside the scope of his employment.
[10] The trial court declared its order immediately appealable under Trial Rule
54(B), and the Plaintiffs now appeal.
Discussion and Decision [11] The Plaintiffs contend the trial court erred by granting summary judgment to
Deaconess. We review a motion for summary judgment de novo, applying the
same standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.
Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 8 of 19 2014). That is, “The judgment sought shall be rendered forthwith if the
designated evidentiary matter shows that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Ind. Trial Rule 56(C). Even when the facts relevant to an issue are
undisputed, summary judgment is inappropriate if those facts support
conflicting reasonable inferences. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.
2009).
[12] The trial court granted Deaconess summary judgment on two independent
grounds. First, it rejected the Plaintiffs’ underlying tort claims—intrusion into
emotional solace and intentional infliction of emotional distress. Second, it
found that even if the Plaintiffs could prove one or both of those underlying
claims, Dr. Ledda was not acting within the scope of his employment and
therefore Deaconess cannot be held vicariously liable under the doctrine of
respondeat superior. We begin by addressing the underlying tort claims and
conclude that while intrusion into emotional solace is not currently a viable tort
claim in Indiana, genuine issues of material fact preclude summary judgment
on the Plaintiffs’ claim of intentional infliction of emotional distress. Therefore,
we must address the scope-of-employment issue, and we again find a genuine
issue of material fact precluding summary judgment.
I. We decline to recognize a tort claim for intrusion into emotional solace [13] The Plaintiffs ask us to recognize the tort of intrusion into emotional solace.
Citing both the Restatement (Second) of Torts and Prosser and Keeton on Torts,
Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 9 of 19 our Supreme Court has recognized “intrusion” (or “intrusion upon seclusion”)
as one form of invasion of privacy, along with “appropriation of likeness,”
“public disclosure of private facts,” and “false-light publicity.” Cmty. Health
Network, Inc. v. McKenzie, 185 N.E.3d 368, 380 (Ind. 2022) (citing Restatement
(Second) of Torts § 652A (Am. L. Inst. 1977)); Cullison v. Medley, 570 N.E.2d
27, 31 (Ind. 1991) (citing Prosser and Keeton on Torts § 117 (5th ed. 1984)). The
issue presented here is whether the tort is limited to physical invasions of
personal space (e.g., home or body) or also includes non-physical intrusions
into private affairs (financial records, medical records, etc.).
[14] The Plaintiffs acknowledge that in Cullison, the Court stated, “When the
invasion of a plaintiff’s right to privacy takes the form of intrusion, it consists of
an intrusion upon the plaintiff’s physical solitude or seclusion as by invading
his home or conducting an illegal search.” 570 N.E.2d at 31 (emphasis added).
They also acknowledge that this Court has often cited Cullison for the
proposition that an intrusion claim requires a physical invasion. See, e.g.,
Albanese Confectionery Grp., Inc. v. Cwik, 165 N.E.3d 139, 148 (Ind. Ct. App.
2021), trans. denied; F.B.C. v. MDwise, Inc., 122 N.E.3d 834 (Ind. Ct. App. 2019),
trans. denied, overruled on other grounds by McKenzie, 185 N.E.3d 368; Westminster
Presbyterian Church of Muncie v. Yonghong Cheng, 992 N.E.2d 859 (Ind. Ct. App.
2013), trans. denied; Newman v. Jewish Cmty. Ctr. Ass’n of Indianapolis, 875 N.E.2d
729 (Ind. Ct. App. 2007), trans. denied. However, they argue that the “physical
solitude or seclusion” statement in Cullison was dicta that we shouldn’t treat as
binding precedent. Specifically, the Plaintiffs assert that because Cullison
Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 10 of 19 involved a physical invasion of the plaintiff’s home, the Court didn’t have to
decide whether a non-physical invasion would suffice and the statement
therefore wasn’t necessary to its decision. See State v. Hardy, 7 N.E.3d 396, 401
(Ind. Ct. App. 2014) (“Obiter dictum—dicta—refers to statements that a court
makes that are not necessary in the determination of the issues presented.”).
[15] The Plaintiffs offer persuasive arguments for recognizing the tort of intrusion
into emotional solace. Neither the Restatement (Second) of Torts nor Prosser
and Keeton on Torts limits intrusion to physical invasions. See Restatement
(Second) of Torts § 652B (Am. L. Inst. 1977) (calling for the liability of “[o]ne
who intentionally intrudes, physically or otherwise, upon the solitude or
seclusion of another or his private affairs or concerns” (emphases added));
Prosser and Keeton on Torts § 117 (noting that the tort of intrusion has been
“carried beyond” physical intrusion and “extended to eavesdropping upon
private conversations by means of wiretapping and microphones”). Also,
technological advancements since Cullison have made non-physical invasions of
privacy easier and more common. See F.B.C., 122 N.E.3d at 838-40 (Bailey, J.,
dissenting). And other jurisdictions allow intrusion actions where there has
been no physical invasion. See, e.g., Taus v. Loftus, 151 P.3d 1185 (Cal. 2007);
Johnson v. Stewart, 854 So. 2d 544 (Ala. 2002); Swarthout v. Mut. Serv. Life Ins.
Co., 632 N.W.2d 741 (Minn. Ct. App. 2001).
[16] Even still, for two reasons, we believe that any recognition of this tort in
Indiana must come from our Supreme Court or the legislature. First, our
Supreme Court has consistently denied transfer in cases where we relied on the Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 11 of 19 “physical solitude or seclusion” language from Cullison, including two very
recent cases where one of the Plaintiffs’ attorneys made the same arguments he
makes here. See Fox v. Franciscan All., Inc., 204 N.E.3d 320 (Ind. Ct. App. 2023),
trans. denied; Henry v. Cmty. Healthcare Sys. Cmty. Hosp., 184 N.E.3d 645 (Ind. Ct.
App. 2022), trans. denied, overruled on other grounds by McKenzie, 185 N.E.3d 368.
While the denial of transfer in a particular case is not a ruling on the merits of
the legal question, our Supreme Court’s repeated denials on this particular issue
are in line with what the Court said in Cullison.
[17] Second, in a recent decision addressing the public-disclosure-of-private-facts
form of invasion of privacy, the Court stressed the importance of the “publicity”
element. Z.D. v. Cmty. Health Network, Inc., 217 N.E.3d 527, 538 (Ind. 2023).
This element requires that the private information be “communicated in a way
that either reaches or is sure to reach the public in general or a large enough
number of persons such that the matter is sure to become public knowledge.”
Id. at 533. The Court explained that this “necessary restraint” prevents
“exposing individuals and entities to inordinate liability each time someone’s
privacy is compromised.” Id. at 538. This language weighs heavily against
adopting intrusion into emotional solace, which would have no publicity
element.
[18] For these reasons, we decline to recognize the tort of intrusion into emotional
solace, and we affirm the grant of summary judgment to Deaconess on this
claim. However, as we explain in the next two sections, the Plaintiffs may be
able to recover for intentional infliction of emotional distress.
Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 12 of 19 II. There are genuine issues of material fact as to whether Dr. Ledda intentionally or recklessly caused severe emotional distress to the Plaintiffs [19] The trial court granted summary judgment to Deaconess on the Plaintiffs’ claim
for intentional infliction of emotional distress based on its conclusion that Dr.
Ledda didn’t intend to cause emotional distress to the Plaintiffs. The Plaintiffs
contend that intent to harm is not required—recklessness is enough—and that
even if intent to harm is required there is a genuine issue of material fact as to
Dr. Ledda’s intent. Deaconess doesn’t dispute that, if recklessness is enough,
there is a genuine issue of material fact precluding summary judgment; rather, it
argues that intent to harm is required and that there is no evidence that Dr.
Ledda set out to cause severe emotional distress to the Plaintiffs. See Appellees’
Br. p. 37. Notwithstanding the common name of this tort—“intentional
infliction of emotional distress”—we agree with the Plaintiffs that recklessly
causing emotional distress can be enough.
[20] Our Supreme Court first recognized the tort of intentional infliction of
emotional distress in the Cullison decision we discussed above. 570 N.E.2d at
31. Specifically, the Court adopted the Restatement (Second) of Torts § 46 (Am.
L. Inst. 1965). That section is titled “Outrageous Conduct Causing Severe
Emotional Distress” and provides, in relevant part, “One who by extreme and
outrageous conduct intentionally or recklessly causes severe emotional distress
to another is subject to liability for such emotional distress[.]” Under this
formulation, recklessly causing severe emotional distress can be enough, if it is
Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 13 of 19 caused by extreme or outrageous conduct. Comment i to Section 46 confirms
this fact:
Intention and recklessness. The rule stated in this Section applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct. It applies also where he acts recklessly, as that term is defined in § 500, in deliberate disregard of a high degree of probability that the emotional distress will follow.
We have cited this comment with approval. See J.H. v. St. Vincent Hosp. & Health
Care Ctr., Inc., 19 N.E.3d 811, 820 (Ind. Ct. App. 2014); Bradley v. Hall, 720
N.E.2d 747, 752 n.6 (Ind. Ct. App. 1999). The highest courts of other states
have also held that reckless conduct can support a claim for intentional
infliction of emotional distress, citing the Restatement. See, e.g., Rogers v.
Louisville Land Co., 367 S.W.3d 196 (Tenn. 2012); Peterson v. Sioux Valley Hosp.
Ass’n, 491 N.W.2d 467 (S.D. 1992).
[21] As Deaconess emphasizes, the Cullison Court also stated, “It is the intent to
harm one emotionally that constitutes the basis for the tort of an intentional
infliction of emotional distress.” 570 N.E.2d at 31. There is obvious tension
between that sentence and the Court’s adoption (in the preceding sentence) of
the Restatement’s “intentionally or recklessly” formulation. See Lachenman v.
Stice, 838 N.E.2d 451, 456 n.5 (Ind. Ct. App. 2005) (discussing Cullison and
stating that “a demonstrated intent to harm seems inconsistent with mere
reckless conduct”), reh’g denied, trans. denied. But six years after Cullison, the
Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 14 of 19 Court cited the Restatement formulation without repeating the “intent to harm”
language. See Doe v. Methodist Hosp., 690 N.E.2d 681, 691 (Ind. 1997), overruled
on other grounds by McKenzie, 185 N.E.3d 368. Given the Court’s approval of the
Restatement standard in both Cullison and Doe, we conclude that a defendant
who recklessly causes “severe emotional distress” through “extreme and
outrageous conduct” can be held liable for intentional infliction of emotional
distress. We recognize that the “intentionally or recklessly” standard allows for
more claims than a strict “intent to harm” standard would, but those other
Restatement elements provide important guardrails that limit the number of
successful claims.
[22] Because intent to harm isn’t required, and because Deaconess hasn’t challenged
the “extreme and outrageous conduct” or “severe emotional distress” elements
at this stage, it is not entitled to summary judgment on the Plaintiffs’ underlying
claim for intentional infliction of emotional distress.3 Therefore, we must
address the trial court’s alternative ground for granting summary judgment to
Deaconess: Dr. Ledda was not acting within the scope of his employment.
3 Deaconess argues that this case is similar to Fox v. Franciscan Alliance, Inc., 204 N.E.3d 320 (Ind. Ct. App. 2023), trans. denied. There, a hospital employee improperly accessed the records of the plaintiffs, and we affirmed summary judgment against the plaintiffs on their claim for intentional infliction of emotional distress. While the panel in that case mentioned the Restatement standard that includes recklessness, it cited and ultimately relied on the “intent to harm” language from Cullison. Id. at 329-30. As just discussed, we conclude that intent to harm is not required—recklessness can suffice.
Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 15 of 19 III. There is a genuine issue of material fact as to whether Dr. Ledda was acting within the scope of his employment [23] In order to hold Deaconess vicariously liable for Dr. Ledda’s record access
under the doctrine of respondeat superior (Latin for “let the superior make
answer”), the Plaintiffs must show that Dr. Ledda was acting within the scope
of his employment. Cox v. Evansville Police Dep’t, 107 N.E.3d 453, 460 (Ind.
2018). Summary judgment is sometimes appropriate on scope of employment,
but it is generally a question of fact. Id.
[24] Our Supreme Court examined whether improperly accessing medical records
was within the scope of employment in Community Health Network, Inc. v.
McKenzie, 185 N.E.3d 368 (Ind. 2022). The employer argued that the
employee’s conduct was outside the scope of her employment “for two related
reasons: (1) her conduct was unauthorized; and (2) it violated signed
acknowledgements in which she agreed to maintain the confidentiality of
patients’ medical records.” Id. at 377. The Court began its summary-judgment
analysis by making clear that even unauthorized conduct can fall within the
scope of employment:
Scope of employment can include acts that naturally or predictably arise from authorized activities. And thus, scope-of- employment liability may reach unauthorized conduct, including that which violates the employer’s rules, orders, or instructions. A primary reason for imposing liability for such conduct is to prevent recurrence. This reason is significant here, as technological advances have led to health-care employers placing expansive access to private patient information at employees’ fingertips. And when the employer controls that access, the threat Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 16 of 19 of liability for injurious conduct flowing from that control encourages preventive measures.
To be sure, if an employee engages in unauthorized conduct that is in direct violation of agreed-to policies and procedures—such as a confidentiality agreement—then this evidence weighs heavily toward a finding that the actions were outside the scope of employment. But also relevant is evidence demonstrating that the employee’s actions naturally or predictably arose from delegated employment activities within the employer’s control.
Id. at 377-78 (cleaned up).
[25] The Court then turned to the facts before it. Citing three factors, the Court
found genuine issues of material fact as to whether the employee’s improper
record access was within the scope of her employment. First, the employer had
complete control over the employee’s record access and gave her the ability to
view the records of any patient, even though she was only supposed to view the
records of certain patients. Second, there was evidence that the employee didn’t
have a clear understanding of the scope of her authority to access records and
that she didn’t think her unauthorized access was “that critical.” Id. at 378.
Third, there was evidence that the employer “lacked proper systems to regulate
its employees’ use of medical records” and that it didn’t take full advantage of
the systems it did have. Id. This allowed the employee to improperly view the
records of many patients over several months without detection by the
employer; the employer was unaware of any unauthorized access until it
received an anonymous tip.
Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 17 of 19 [26] There are some differences here. Unlike the employee in McKenzie, Dr. Ledda
knew and admitted that accessing the Plaintiffs’ records was unauthorized and
inappropriate. And unlike the employer in McKenzie, Deaconess itself
discovered Dr. Ledda’s improper access, after being alerted by its violation-
detection software. But other evidence weighs in favor of the Plaintiffs.
Deaconess had complete control over Dr. Ledda’s record access and gave him
the ability to view the records of people who weren’t his patients. Also, Dr.
Ledda was improperly accessing records for more than eighteen months before
Deaconess learned of his misconduct. Deaconess didn’t even investigate Dr.
Ledda’s record access after his former patient Mandy Ford complained in late
2020 that he had propositioned her. Such an investigation would have revealed
that Dr. Ledda improperly accessed Ford’s records, which likely would have
resulted in a much earlier termination of Dr. Ledda’s employment. Finally, a
HIPAA security expert opined that Deaconess should have and could have
done more to monitor Dr. Ledda’s record access, especially after receiving
Ford’s complaint. Tellingly, Deaconess doesn’t address the Ford situation or
the expert’s opinion in its appellate brief.
[27] Despite the differences between this case and McKenzie, we conclude that there
is a genuine issue of material fact as to whether Dr. Ledda’s improper record
access arose naturally and predictably from his authorized activities. Therefore,
the trial court erred by granting summary judgment to Deaconess on the
Plaintiffs’ claim for intentional infliction of emotional distress.
[28] Affirmed in part, reversed in part, and remanded.
Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 18 of 19 May, J., and Kenworthy, J., concur.
ATTORNEYS FOR APPELLANTS Neal F. Eggeson, Jr. Eggeson Privacy Law Fishers, Indiana Taylor D. Ivy Ladendorf Law Indianapolis, Indiana
ATTORNEYS FOR APPELLEES James L. Whitlatch Kathryn E. DeWeese Ryan M. Heeb Bunger & Robertson Bloomington, Indiana
Court of Appeals of Indiana | Opinion 24A-CT-47 | June 5, 2024 Page 19 of 19