Indiana Supreme Court Recognizes Claim for Public Disclosure of Private Facts

We previously wrote about a decision by the Indiana Court of Appeals regarding a hospital employee’s unauthorized access of patient records in Community Health Network, Inc. v. McKenzie here. However, the Indiana Supreme Court later granted transfer in McKenzie, thus vacating the Court of Appeals’ decision.

The disclosing employee, Katrina Gray, was previously employed by an orthopedic group along with one of the eventual plaintiffs, Heather McKenzie. Heather was supervised by Katrina, who was the group’s medical records coordinator. Katrina also introduced Heather to her stepson and Heather and Katrina’s stepson would marry and have children. Later, Heather and Katrina’s stepson divorced, and Heather received custody. Heather then married Daniel McKenzie. The Grays and McKenzies did not get along. Later, after the orthopedic group was acquired by Community, despite agreeing to restricted access to orthopedic records only, Katrina used her access to Epic to access her records and those of other patients, including Heather’s family and relatives. Heather McKenzie, her husband, her children, her parents, and her father-in-law all brought claims against Katrina’s employer, Community, based upon Katrina’s actions.

In its opinion, departing from the Court of Appeals, the Supreme Court held that Indiana does recognize a tort claim for the public disclosure of private facts, paraphrasing a popular comic-book refrain: “with great access comes great responsibility—an abuse of which may give rise to liability.” The Court also reiterated that the situation was not governed by Indiana’s Medical Malpractice Act. Further, the Court found that the patients’ negligence claims could not survive, because, although their “distress is understandable,” no negligence claim for emotional distress may be maintained in Indiana where there is no physical impact or where the claimant does not contemporaneously “perceive any physical injury to a loved one.”

Significantly, the Supreme Court clarified a confusing body of prior cases discussing a “general right of privacy,” recognizing that a tort claim for the public disclosure of private facts does, in fact, exist in Indiana. Crucial to the clarification of the law were recent observations by Court of Appeals Judges Crone and Bailey, who urged the Court to recognize the disclosure tort, pointing to technological advancements. First, Judge Crone noted “the increase in speed and ease with which sensitive, personal information can now be accessed and ‘broadcast to the public.’” Second, Judge Bailey noted the “ubiquity of digital data” and the ease with which third parties can obtain and share highly sensitive and personal information. The Court echoed these concerns to join “nearly every other state” in recognizing the tort.

The Court adopted for its framework the four elements articulated in the Restatement (Second) of Torts § 652D, which can be boiled down to these essentials: 1) private facts; 2) publicity; 3) highly offensive to a reasonable person; and 4) lacking newsworthiness. Turning to comments on the Restatement, the Court first addressed the meaning of private facts. This means the information is both factually true and privately held. Information already public which is further publicly shared would not qualify.

The court turned to the second element, publicity, noting that commentary suggests this means communicating the private facts in a way that either reaches or is sure to reach the public in general or a “large enough number of persons” to ensure that the information “is sure to become public knowledge.” The Court refused to define what “large enough” means, deferring to each case’s peculiar facts and circumstances as to whether the disclosure would be deemed “sufficient.”

The third element examined by the court in the commentary to the Restatement, whether the disclosure would be considered “highly offensive to a reasonable person,” requires diving into “society’s accepted, communal norms and social mores.” Noting that there is no such thing as perfect privacy, the Court determined that to meet this standard, the “reasonable person would feel justified in feeling seriously aggrieved by it.”

The fourth, and final, element—lack of newsworthiness—means the information is not “of legitimate concern to the public.” Matters of concern, such as public figures and newsworthy information, are areas of legitimate concern. So, the proper inquiry should be whether a reasonable person would say the information disclosed causes no concern.

Although the Court set out these four elements, it ultimately found the result depended on just one: publicity. Because Community designated evidence that Gray “did not publish, discuss or retain any medical information of any party,” it became incumbent upon McKenzie to overcome this evidence with conflicting evidence. McKenzie designated general testimony that Gray had openly discussed other patients’ medical records and testimony that Gray knew about “an extremely personal and sensitive aspect” of one of the McKenzie’s medical histories that would not have been known, but for access to the medical records. The Court found that Gray’s conduct towards other patients’ medical information was irrelevant to whether she publicly disclosed McKenzie’s. And, the Court found that whether or not Gray knew sensitive information about one of the McKenzies did not equate with publicly disseminating such information. And, even if it did, there had been no showing that the information had been disclosed beyond the member of her family. Consequently, the Court directed the trial court to enter judgment in favor of Community on all claims. The Court’s opinion can be found here.

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