How Private Is Private? Tennesse Court Revives Tort Action Against Drugstore Chain in HIV Case

On November 24, the Court of Appeals of Tennessee at Jackson, reversing a ruling by the Shelby County Circuit Court, revived a tort action by a former employee of a drugstore who claims that her right of privacy concerning her HIV status was improperly violated by co-workers and a supervisor.  Doe v. Walgreens Company, No. W2009-02235-COA-R3-CV.

The Jane Doe plaintiff worked as a pharmacy technician at a Walgreens store in Memphis, where her direct supervisor was the manager of the pharmacy.  She was HIV+, but wanting to preserve the confidentiality of that information, she used a different Walgreens store in Memphis to get her prescriptions filled.  Walgreens maintains what is supposed to be a "secure database" of customer prescription information, and access to the database was only authorized when an employee was filling a prescription for a customer.  On August 24, 2004, the pharmacy manager told Doe that he had overheard other employees discussing her HIV status, which one of them had confirmed by accessing the database.  That same day, the pharmacy manager telephoned Doe's fiance and informed him about her HIV status.  (The record is unclear whether the fiance already knew this information.)  As gossip spread this information, two co-workers who were supposed to participate in Doe's wedding as bridesmaids withdrew, and ultimately Doe quit her job at Walgreens.

Doe filed a complaint against Walgreens, the pharmacy manager, and the co-worker who admitted having accessed the database to determine Doe's HIV status.  She claimed a violation of state law governing patient confidentiality, improper disclosure of information, gross negligence by Walgreens in terms of protecting the security of the database, loss of consortium, intentional infliction of emotional distress, invasion of privacy and intrusion upon seclusion, and constructive discharge. 

Walgreens moved to dismiss the claims against it, claiming that the case was barred by the "exclusive remedy" provision of the state's workers compensation law.  Such laws generally bar negligence claims by employees against their employers for injuries incurred within the scope of their employment, substituting for tort litigation the workers compensation insurance system.  The trial judge granted Walgreens' dismissal motion, saying that Doe had not alleged any intentional acts on the part of the employer, and that acts alleged against the co-workers did not take the case out of the exclusive remedy provision.

The reversal by the court of appeals was premised on its conclusion that, apart from the constructive discharge claim – which would not be governed by the workers compensation law – Doe's tort claims were brought in her capacity as a customer of Walgreens rather than as an employee.  Indeed, the workers compensation law applies to injuries attributable to occurrences 'rising out of employment' and the case law shows that it is occasionally difficult to draw any kind of firm line between situations that are subject to the exclusive remedy provision and those that are not.  But in this case, the court of appeals said, following the mandate to construe the pleadings liberally in favor of the party opposing a motion to dismiss, "we can reasonably infer that the alleged injuries arose from the deliberate acts of [the pharmacy manager] and [the co-worker] and not as a result of any accidental discovery or dissemination of Ms. Doe's prescription records.  Further, because these deliberate acts lacked any medical, legal, business, or job-related justification, it is reasonable to infer that they were made with the actual intent to injure the Appellants."

Even though Doe's status as an employee put her in a position to suffer this injury, the court was not willing to conclude that this made it a work-related injury, as such.  Her prescription records were in the database because she was a customer, not because she was an employee.  The court rejected the idea that her tort injuries arose out of her employment within the meaning of the workers compensation law.  "Having determined that there was no business reason for the actions of Ms. Doe's co-workers and that, consequently, the injurious activities did not arise out of, or in the course of, Ms. Doe's employment, the causes of action averred do not sound in workers' compensation," concluded the court, reversing the trial court and remanding for trial of the claims asserted by Doe and her fiance (now Mr. Doe).

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