QHG of Enter., Inc. v. Pertuit

323 So.3d 1171

QHG OF ENTERPRISE, INC., d/b/a Medical Center Enterprise

v.Amy PERTUIT

1181072

Supreme Court of Alabama.

September 25, 2020

Walter J. Price III, Eris Bryan Paul, and H. Cannon Lawley of Clark, May, Price, Lawley, Duncan & Paul, LLC, Birmingham, for appellant.

Regina F. Cash and Abner R. Powell IV of Luther, Collier, Hodges & Cash LLP, Mobile, for appellee.

BRYAN, Justice.

QHG of Enterprise, Inc., d/b/a Medical Center Enterprise ("QHG"), appeals from a judgment of the Coffee Circuit Court ("the trial court") awarding Amy Pertuit ("Amy") $5,000 in compensatory damages and $295,000 in punitive damages.¹ We reverse the judgment and render a judgment for QHG.

Background

Leif Pertuit ("Leif") was married to Deanna Mortensen; one child, Logan, was born of their marriage. Leif and Mortensen were divorced in 2007. At some point, Mortensen was awarded sole physical custody of Logan, and Leif was awarded visitation.

Leif later married Amy, a nurse. At the time of their marriage, Leif and Amy resided in Mobile, and Mortensen resided in Enterprise. Eventually, tensions arose between Leif and Mortensen regarding the issue of visitation. In March 2014, Mortensen began sending text messages to Leif accusing Amy of being addicted to drugs.

Around that time, Mortensen visited the attorney who had represented her in matters relating to her divorce from Leif ("Mortensen's attorney"). Mortensen expressed concern that Logan was in danger as a result of the visitation arrangement and asked her attorney to assist with obtaining a modification of Leif's visitation. Mortensen's attorney explained: "We can't just go on your belief. ... You can file a petition, but it will not be granted ...."

In April 2014, Mortensen telephoned or sent a text message to Dr. Kathlyn Diefenderfer, a physician whom QHG employed as a hospitalist at Medical Center Enterprise, a hospital operated by QHG (hereinafter referred to at times as "the hospital"). Mortensen had been Dr. Diefenderfer's patient when Dr. Diefenderfer worked in her own clinic, and Dr. Diefenderfer's son played sports with Logan. Mortensen went to see Dr. Diefenderfer at the hospital. Hysterical and crying, Mortensen informed Dr. Diefenderfer that Logan was scheduled to ride in an automobile with Amy from Enterprise to Mobile for Leif's visitation and expressed concern regarding Amy's ability to drive, given her belief that Amy was using drugs and had lost her nursing license.

Dr. Diefenderfer then used a hospital computer to access the Alabama Prescription Drug Monitoring Program ("PDMP"), a database that contains information regarding drug prescriptions. See § 20-2-212, Ala. Code 1975 ("The [Alabama Department of Public Health] may establish, create, and maintain a controlled substances prescription database program.").² After reviewing information pertaining to Amy's drug prescriptions, Dr. Diefenderfer told Mortensen: "All I can tell you is I would not put my son in the car."

Later in April 2014, Mortensen visited her attorney, again distraught. Mortensen informed her attorney that her suspicions about Amy's drug use had been confirmed. Mortensen's attorney said: "You cannot allege that unless you have proof. ... Where's the proof?" Mortensen indicated that Dr. Diefenderfer had acquired the necessary proof.

At the time, Mortensen's attorney was also representing Dr. Diefenderfer in a different legal matter, and the two were neighbors. Mortensen's attorney telephoned Dr. Diefenderfer, who was at home. Dr. Diefenderfer told Mortensen's attorney that no child should be around Amy because of her methadone and opiate use. At some point, Mortensen's attorney asked Dr. Diefenderfer whether she had written documentation supporting her statements, and Dr. Diefenderfer said: "Yes, I have a printout." Mortensen's attorney asked whether a subpoena would be required to obtain the documentation, and Dr. Diefenderfer again responded in the affirmative.

Based on his telephone conversation with Dr. Diefenderfer, Mortensen's attorney drafted and filed that same day a petition seeking a modification of Leif's visitation with Logan, so as to prevent Logan from being left in Amy's care. Among other things, the petition alleged:

"[Amy] has lost her nursing license after reprimand, counseling[,] and[,] finally[,] a revocation of her license due to what is believed as prescription drug and substance abuse. Records and other evidence show that [Leif and Amy] ha[ve] purchased up to 138 pills a month of [m]ethadone, Lortabs and other narcotics for over a year. These numbers are far in excess of medically recommended dosages. [Amy] is also making purchases at four different pharmaceutical establishments in the Mobile area and with three different doctors."

Amy later received a copy of the modification petition on Leif's behalf. According to Amy, the material allegations set out in the petition included multiple inaccuracies, and she was convinced that her private health information had been obtained in violation of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").

Amy testified that her nursing license had never been suspended or revoked, that she had never been reprimanded or terminated by an employer for drug use, that she had never failed a drug test requested by an employer, that she had never been arrested for drug possession, that she had never taken methadone and Lortab together, that she had never taken 138 pills in one month, that she had never "shopped around" for doctors or pharmacies, and that her doctor had never raised a concern that Amy was addicted to opioids. Amy noted that she had been prescribed medication to help manage pain resulting from fusion surgery to repair multiple spinal fractures in her neck that had been caused by a significant motor-vehicle collision. Amy attributed one large prescription for 138 doses of methadone in November 2013 to the fact that her doctor was leaving town for Christmas at that time.

At some point after the modification petition was filed, Mortensen's attorney met Dr. Diefenderfer at her home and delivered what he purported to be a subpoena directing Dr. Diefenderfer to produce: "Records which indicate that Logan ... may by in imminent danger if in the physical custody of Amy ...." In reality, the purported subpoena had never been filed in the court in which the modification petition was pending; neither the court presiding over that action nor opposing counsel was aware of the purported subpoena. See Rule 45, Ala. R. Civ. P. (providing the procedure for seeking the issuance of a subpoena). At some point after Mortensen's attorney presented the purported subpoena to Dr. Diefenderfer, Dr. Diefenderfer gave him a report generated by Dr. Diefenderfer from the PDMP and printed at her home that reflected Amy's name and listed prescriptions for methadone and Lortab.

The total number of times Dr. Diefenderfer accessed the PDMP to obtain medical information concerning Amy is unclear.

It is undisputed that she did so more than once. However, Dr. Diefenderfer testified that such access occurred only once at the hospital -- on the day that Mortensen sought her assistance regarding Logan's scheduled visitation with Leif.

At the hearing on Mortensen's modification petition, Amy testified, in the presence of Leif and Leif's mother, regarding the allegations raised by Mortensen in her petition. The court presiding over that action denied the modification petition, ordering Leif's visitation to resume as previously ordered.

As a result of the events described above, Amy submitted a report to the Enterprise Police Department, a complaint to the United States Department of Health and Human Services, a complaint to the Alabama Bar Association, and a complaint to the Alabama Board of Medical Examiners. Indictments were presented by the grand jury of Coffee County against Mortensen and Dr. Diefenderfer, charging each with violating § 20-2-216, Ala. Code 1975.³ The indictments were later recalled upon Mortensen's and Dr. Diefenderfer's entering into pretrialdiversion agreements with the district attorney's office. The Alabama Board of Medical Examiners sent Dr. Diefenderfer a letter of concern.

On October 24, 2014, the United States Department of Health and Human Services, Office for Civil Rights ("OCR"), sent a letter to "[t]he [o]ffice" of Dr. Diefenderfer, explaining that OCR had received a complaint regarding Dr. Diefenderfer's access of the PDMP in April 2014. The letter was sent to the address of Dr. Diefenderfer's previous employer, Enterprise Medical Clinic. The letter stated that Dr. Diefenderfer's actions "could reflect a violation" of specified federal regulations. Among other things, the letter stated:

"OCR has determined to resolve this matter through the provision of technical assistance to the Office. To that end, OCR has enclosed [certain] material[s] .... It is our expectation that you will review these materials closely and share them with your staff as part of the [HIPAA] training you provide to your workforce. It is also our expectation that you will assess and determine whether there may have been an incident of noncompliance as alleged by the complainant in this matter, and, if so, to take the steps necessary to ensure such noncompliance does not occur in the future."

Four days later, QHG received, via a courier from Dr. Diefenderfer's previous employer, a copy of the letter sent by OCR.

Richard Ellis was QHG's chief executive officer ("CEO") at the time, and Kathy McCurdy was the compliance and privacy officer for Medical Center Enterprise. As the compliance and privacy officer, McCurdy was responsible for investigating the complaint against Dr. Diefenderfer. McCurdy was also Mortensen's aunt. Ellis and McCurdy met with Dr. Diefenderfer and discussed the importance of patient privacy and compliance with the requirements of HIPAA and explained QHG's commitment to safeguarding patient privacy. Dr. Diefenderfer agreed regarding the...