LITTLE ROCK — The Arkansas Supreme Court on Thursday reinstated a lawsuit filed against St. Vincent Infirmary Medical Center in Little Rock and three people associated with the hospital who used their computer privileges to peek at the private medical records of Anne Pressly, a television news anchor who was hospitalized in October 2008 for injuries that proved fatal after an intruder attacked her in her home.
Pressly’s parents filed the lawsuit in Pulaski County Circuit Court on Oct. 16, 2009, after becoming aware that Dr. Jay Holland and two hospital employees, all three curious about her injuries and whether she was still alive, had accessed Pressly’s confidential medical records during her five-day hospitalization.
None of them had any legitimate reason for looking at Pressly’s records. The two employees, Candida Griffin and Sarah Elizabeth Miller, were fired. Holland, who had hospital privileges, was later reprimanded and fined $500 by the Arkansas State Medical Board.
All three were prosecuted in federal court in Little Rock, where each pleaded guilty to a misdemeanor charge of violating the Health Insurance Portability and Accountability Act of 1996, commonly known as HIPAA, and were sentenced to a year’s probation and fined.
The civil lawsuit, which was pending during the federal prosecution, was thrown out on Oct. 14, 2011, when Circuit Judge Leon Johnson granted a summary judgment motion filed on behalf of the defendants, agreeing that there were no factual disputes to be decided by a jury.
That’s because a claim for invasion of privacy doesn’t survive the death of the person whose privacy was violated, Johnson said. An outrage claim also doesn’t survive the death and can’t be asserted as a “relational wrong” by her survivors, preventing the hospital from being held liable, he said.
In a 12-page opinion written by Justice Jim Gunter and released Thursday, the Supreme Court noted that “this case raises an issue of substantial public interest” and warrants “clarification or development of the law.”
The Supreme Court upheld Johnson’s finding that Arkansas Code Annotated 16-62-101(a)(1) doesn’t permit an invasion of privacy claim to survive the death of the decedent.
But the court reversed him on dismissing Patricia and Guy Cannady’s claims of outrage because the claims were based on the same conduct as the privacy claim.
The high court agreed with the Cannadys, who were represented in the appeal by attorney Gerry Schulze of Little Rock, that the outrage claim was leveled on behalf of Pressly’s survivors, who are claiming that they personally suffered emotional distress upon learning of the invasion of their daughter’s privacy.
Schulze also argued that the outrage claim is separate from any invasion of privacy claim and doesn’t constitute a “relational tort.”
Gunter wrote, “The crux of the [circuit] court’s order was that the outrage claim failed because it was based on the ‘same conduct’ as the privacy-violation claim. However, neither St. Vincent nor the circuit court has cited to any authority for the proposition that two separate claims cannot be based on the same conduct.
“In addition,” the ruling continued, “the outrage claim was not made on behalf of the decedent, but on [the Cannadys’] own behalf, and the court failed to make any findings regarding whether sufficient facts existed to state a cause of action for outrage. Thus, we reverse ... on this point and remand for further proceedings.”
Because the outrage claim survives, the high court also reversed Johnson’s finding that the hospital couldn’t be found vicariously liable for the conduct of its employees.
In a concurring opinion, Justice Paul Danielson wrote that the outrage claim was asserted as personal to Patricia Cannady and that there was no reason she couldn’t assert that she was outraged by the employees’ conduct.
To establish a claim of outrage, a plaintiff must show that the actor knew or should have known that emotional distress was the likely result of his conduct, the conduct was extreme and intolerable in a civilized community, the defendants’ actions were the cause of the plaintiff’s distress, and the emotional distress suffered by the plaintiff “was so severe that no reasonable person could be expected to endure it.”
In a news conference in Schulze’s office Thursday to respond to numerous media inquires about the Supreme Court ruling, he said the bottom line is that “we do get our day in court.”
He said his co-counsel, Bobby McDaniel of Jonesboro, will be the one trying the case before a jury.
He said he had spoken to Patricia Cannady, who lives out of state, by telephone after the ruling.
“This means a lot to Ms. Cannady,” he said. “She was very happy to be able to have her chance to be heard.”
“We are very pleased that the Supreme Court recognized this as a significant issue that needed clarification,” he added.
The court battle is important to Cannady, Schulze said, because “every one of us has the risk of exposure of very personal information. In the computer age, it is much easier than it ever has been before to intrude on our seclusion. But the issue is also that it’s not just the individual, but the individual’s family members” who are affected.
“It’s very important for us, as a society, to protect our privacy, and this is an opportunity ... for a jury to decide whether it’s sensible in this society for people to engage in this type of voyeurism.”
Schulze said the ruling “clarified our outrage law,” to acknowledge that “there are other, ancillary victims” who have a right to their own claims.
“That is, I think, new law,” he said.
Schulze said he also intends to “make our plea to the Legislature” to modify the state’s “survival statute” to make sure that privacy laws extend beyond the decedent.
“We do think most people recognize that we are all exposed to intrusion on our private information, and the law is going to have to change,” Schulze said. “We’re not in the 19th century anymore. We’re not in the 20th century anymore. ... To intrude on someone’s privacy, you don’t have to be there anymore. You can be in China.”
Curtis Vance of Marianna is serving a life sentence for his capital murder conviction in Pressly’s death.
Front Section, Pages 1 on 10/05/2012