The Indiana Court of Appeals let stand a $1.4 million verdict awarded by a jury in Marion County, Indiana, when plaintiff, Abigail Hinchy sued Walgreens and pharmacist Audra Withers-Peterson for breaching the duty of confidentiality by providing Hinchy’s ex-boyfriend with Hinchy’s prescription records.
An untamable love trianglePeterson is father of Hinchy’s son. During a heated texting argument between Peterson and Hinchy, Peterson informed Hinchy that he had a print out that proved she did not refill her birth control during the months of July and August, which correlated to the time that Hinchy conceived.
Outraged and confused, Hinchy began to search for answers as to how Peterson could have gained access to her personal information. Hinchy ran into multiple dead ends as she searched for answers, not knowing that Withers and Peterson were married.
Hinchy eventually learned that Peterson was married to her pharmacist (Withers), and upon discovering this new fact, Hinchy immediately filed a complaint with Walgreens alleging that, “Withers had looked at her personal records and disclosed the information she learned to an unauthorized individual.” An investigation conducted by Walgreens loss prevention department revealed that Withers accessed Hinchy’s prescription records, and after being “confronted about the situation, she admitted that she had accessed Hichy’s prescription profile for personal reason.” Walgreens then issued a “written warning, and required her to retake a computer training program regarding HIPAA.”
Professional malpractice
Hinchy filed both statutory and common law claims against both Withers and Walgreens. Hinchy’s complaint against Withers alleged, professional malpractice and public disclosure of private facts. Hinchy asserted:
• By disclosing her private information to a third party, Withers breached her duty owed to Hinchy as her pharmacist.
• Withers had a duty to protect her private pharmaceutical information.
• Disclosure of such information demonstrated a negligence per se act.
• Respondeat superior, negligent supervision, negligent retention and professional malpractice.
After a four-day trial, the jury returned a verdict in favor of the plaintiff, and Walgreens appealed. On appeal, Walgreens contested: the trial court’s denial of summary judgment, respondeat superior liability, ex parte communications, jury instruction, and the amount of the verdict.
The court rejected all of Walgreens arguments and held that:
1. The trial court did not err in denying Walgreen’s summary judgment and directed verdict motions on respondeat superior liability.
2. The trial court did not commit reversible error with respect to an ex parte brief filed by Hinchy.
3. The jury instructions were not erroneous.
4. The damages award was not excessive or based on improper factors.
Walgreens’ appeal was the “first published court opinion,” to establish that health providers may be held responsible for HIPAA violations made by their employees. Neal Eggson, attorney for Hinchy commented on the new precedent, “By choosing to appeal, Walgreens has now created a precedent - one which may be used and relied upon by courts throughout the nation - confirming that privacy breach victims may hold employers accountable for the HIPAA violations of their employees.”
The case is WALGREEN CO. vs. ABIGAIL E. HINCHY, No. 49A02-1311-CT-950.