May v. Dartmouth Hitchcock

2003 DNH 111

• Court: District Court, D. New Hampshire
• Decided: June 24, 2003
• Docket: CV-02-371-B
• Status: Published

Opinion

May v . Dartmouth Hitchcock CV-02-371-B 06/24/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Melanie May

v. Civil N o . 02-371-B Opinion N o . 2003 DNH 111 Dartmouth Hitchcock Medical Center

O R D E R

This action arises from psychiatric treatment that Melanie

May received at Dartmouth Hitchcock Medical Center. A Dartmouth

Hitchcock employee who knew May discovered during the course of

her employment that May had received in-patient psychiatric

services at Dartmouth Hitchcock. The employee later disclosed

privileged information concerning May’s condition and treatment

to May’s family and friends at a private function. May brought

this action against Dartmouth Hitchcock to recover for injuries

she suffered as a result of the disclosures.

May asserts that Dartmouth Hitchcock is both indirectly

liable based on the respondeat superior doctrine and directly

liable based on its failure to properly train and supervise the employee who made the disclosures. May asserts claims for: (1)

improperly disclosing privileged communications in violation of

N.H. Rev. Stat. Ann. §§ 329:26 and 330:32(2) (1995 & Supp. 2002);

(2) invasion of privacy; and (3) negligent infliction of

emotional distress.1 Dartmouth Hitchcock seeks summary judgment

with respect to all of May’s respondeat superior claims and her

direct liability claim for improperly disclosing privileged

communications. I address Dartmouth Hitchcock’s challenge to

each category of claims in turn.

I. RESPONDEAT SUPERIOR

The New Hampshire Supreme Court, following the Restatement

(Second) of Agency, recognizes that “an employer may be held

vicariously responsible for the tortious acts of its employee if

the employee was acting within the scope of his or her employment

when his or her tortious act injured the plaintiff.” Pierson v .

Hubbard, 147 N.H. 7 6 0 , 766 (N.H. 2002) (emphasis added). An

employee’s conduct “is within the scope of employment i f , but

1 May has abandoned a fourth claim based on unspecified violations of federal law.

-2- only if (a) it is of the kind he is employed to perform; (b) it

occurs substantially within the authorized time and space limits;

[and] (c) it is actuated, at least in part, by a purpose to serve

the master.” Restatement (Second) of Agency § 228 (1958).

Judged by this standard, the employee who injured May was not

acting within the scope of her employment because she disclosed

the privileged information on her own time, at a private

function, and entirely for her own purposes. This is so even

though the employee learned of the privileged information during

the scope of her employment because it was the disclosure of the

information, not its acquisition, that injured May.

May argues that the scope of employment requirement should

not apply to claims based on the improper disclosure of

privileged information because, if the requirement were enforced,

it would effectively immunize employers from being held

vicariously liable for improper disclosure claims. This is s o ,

May argues, because, “the wrongful disclosure of confidential

information would never be within the scope of the employment of

its employees.” Doe v . County Health Plan-Kaiser Corporation,

709 N.Y.S.2d 215, 218 (N.Y. App. Div. 2000). Even if I were to

-3- credit the dubious premise on which this argument is based,2 I

would not deem it appropriate to create a special class of

vicarious liability claims to which the scope of employment

requirement is inapplicable. The respondeat superior doctrine is

based on tradition and a pragmatic balancing of competing policy

considerations. Even if an employer could not be held

vicariously liable for improper disclosures of privileged

information by its employees, it would remain directly liable for

injurious disclosures that result from the employer’s negligent

failure to train and supervise its employees. The New Hampshire

Supreme Court, which is responsible for developing the common law

in this area, might well conclude that vicarious liability is not

warranted when an employer reasonably trains and supervises its

employees but an employee improperly discloses privileged

information on her own time and for her own purposes. In any

event, the New Hampshire Supreme Court has given no indication

2 I can think of many instances in which an employee might misuse privileged information in an effort to further the employer’s interests and thereby subject the employer to vicarious liability. For example, an employee might disclose privileged information to a third party without the patient’s permission in an effort to obtain payment for services rendered. An employer could be held vicariously liable for such disclosures even though it did not specifically authorize the disclosures.

-4- that it intends to abandon the scope of employment requirement in

any context in which respondent superior liability may be imposed

and I decline to break new ground in this area. Accordingly, I

grant Dartmouth Hitchcock’s motion to dismiss May’s respondeat

superior claims.

II. IMPROPER DISCLOSURE OF PRIVILEGED COMMUNICATION CLAIMS

Dartmouth Hitchcock argues that New Hampshire does not

recognize a claim for the improper disclosure of privileged

information because: (1) the New Hampshire legislature did not

explicitly or by implication authorize the creation of a right to

sue for damages when it codified the physician-patient and mental

health provider-patient privileges; and (2) the New Hampshire

Supreme Court has not yet adopted a common law tort for the

improper disclosure of privileged communications.

I reject Dartmouth Hitchcock’s argument because, even if the

legislature did not intend to authorize a cause of action for the

improper disclosure of privileged communications,3 I am satisfied

3 May cites N.H. Rev. Stat. Ann. §§ 329:31 and 330-A:35 to support her argument that a right to sue may be inferred from the legislature’s codification of the physician-patient and mental health provider-patient privileges. Sections 329:31 and 330-A:35

-5- that the New Hampshire Supreme Court nevertheless would follow

the great majority of courts in other jurisdictions that

recognize a tort based on such disclosures. See, e.g., Fairfax

Hospital v . Curtis, 492 S.E.2d 6 4 2 , 645 (Va. 1997); Alberts v .

Devine, 479 N.E.2d 113, 120 (Mass. 1985); Doe v . Community Health

Plan-Kaiser Corporation, 709 N.Y.S.2d at 217-18; see generally,

Judy E . Zelin, Physician’s Liability for Confidential Information

about Patent, 48 ALR 4th 668 (1986). Accordingly, I decline to

grant Dartmouth Hitchcock’s motion for summary judgment with

respect to May’s direct liability claim for the improper

disclosure of privileged information.

Dartmouth Hitchcock’s motion for partial summary judgment

(Doc N o . 9 ) is granted with respect to May’s respondeat superior

claims and is otherwise denied.

impose on physicians and mental healthcare providers a duty to disclose privileged communications under certain circumstances. Both provisions also state that “no monetary liability or cause of action may arise against a [physician or licensed mental health care provider] that makes” a required disclosure. While these provisions are not sufficient to justify the recognition of an implied right of action for damages, they suggest that the legislature did not intend to prohibit the New Hampshire Supreme Court from recognizing a common law right to sue for disclosures that are not required by §§ 329:31 and 330-A:35.

-6- SO ORDERED.

Paul Barbadoro Chief Judge

June 2 4 , 2003

cc: Robert Larson, Esq. Brian Stern, Esq.

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