August 27, 2014
MAURA PRICE, M.D., Plaintiff
ELISABETH DELPRETE, D.O., JANE DOE, D.O. and SOUTHERN MAINE HEALTH CARE, Defendants
ORDER ON PENDING MOTIONS
Paul A. Fritzche, Justice, Superior Court.
Doctor Maura Price brought a ten-count complaint against Doctor Elisabeth DelPrete, her partner referred to as Doctor Jane Doe and Southern Maine Health Care based on a claim that Dr. DelPrete examined Dr. Price's personal medical records without authorization and disclosed their contents. Three related motions have been briefed and argued. They address the question of whether the suit is governed by the Maine Health Security Act and-whether the complaint supports invasion of privacy claims.
The plaintiff brought her suit in part based on the protections found at 22 M.R.S. § 1711-C, which protect the confidentiality of health care information. There is no dispute that the information that was allegedly accessed constitutes " health care information." 22 M.R.S. § 1711-C(1)(E). There is no claim that the defendants DelPrete or Doe had any authorization or right to view the records without authorization. Neither Dr. DelPrete nor Dr. Doe were the plaintiff's doctors or in any manner involved in her treatment. Any viewing of the records was for voyeuristic, snooping or spying purposes rather than for medical treatment or any legitimate purpose.
Pursuant to 22 M.R.S. § 1711-C(13) an individual whose rights have been violated may bring a civil action seeking an injunction, costs, forfeiture and penalty. An aggrieved individual may also pursue " all available common law remedies, including but not limited to an action based on negligence." The initial question is whether this suit, based in large part on 22 M.R.S. § 1711-C(13), is also subject to the Maine Health Security Act and its pre-litigation screening provisions. 24 M.R.S. § § 2851- et seq .
The legislature has defined " Action for professional negligence" to mean " . . . any action for damages for injury or death against any health care provider, its agents or employees, or health care practitioner, his agents or employees, whether based upon tort or breach of contract or otherwise, arising out of the provision or failure to provide health care services." 24 M.R.S. § 2502(6). The defendant doctors are " health care practitioners", 24 M.R.S. § 2502(1-A) and Southern Maine Health Care is a " health care provider", 24 M.R.S. § 2502(2). The questions are whether the actions of the doctors or the actions or inactions of Southern Maine " arise out of the provision or failure to provide health care services."
A decision by one doctor to look at the medical records of another person, who is not a patient, for entirely personal reasons unrelated to the provision of medical care does not constitute the provision of health care services. It is no more governed by the Maine Health Security Act than a car accident involving two doctors. See generally D.S. v. Spurwink Seroices, Inc ., 2013 ME 31, 65 A.2d 1196.
The current dispute differs from that in Brand v. Seider , 1997 ME 176, 697 A.2d 846. That case involved a claim of breach of confidentiality after health care services concluded. Here the plaintiff was never a patient of either of the defendant doctors. If they examined her records there was no apparent legitimate reason to do so and the viewing of the records, outside the context of even the most expansive view of a doctor-patient relationship, would not be for the purpose of providing health care services. Also see the thoughtful concurring opinion of three justices in Brand for a narrower interpretation of " arising out of."
While it is a closer question the complaint against Southern Maine does not arise out of the provision or failure to provide health care services. There is no claim that the actual health care services provided by Southern Maine to Dr. Price as part of her diagnosis, treatment and any follow up care deviated in any manner from the applicable standard of care. While the maintenance of confidentiality improves patient confidence the claim is not related to the provision of services.
In cases of professional negligence that are governed by the Maine Health Security Act the screening panel and ultimately any jury is asked whether the acts or omissions complained of constitute a deviation from the applicable standard of care. 24 M.R.S. § 2855(1)(A). Expert testimony is normally required as to the applicable standards and whether there was a deviation. These types of cases involve questions such as what tests should be ordered, how the tests should be interpreted, what surgical or other intervention is advisable and how the procedure should be performed. None of those concerns exist here because health care services were not being provided.
It is correct that the Maine Health Security Act was intended to " fully occupy the field of claims brought against health care providers." See Brand at ¶ 4, referring ultimately to Musk v. Nelson , 647 A.2d 1198, 1201 (Me. 1994). However, the complaint must arise out of the provision or failure to provide health care services. This case does not.
In Count I of the complaint the plaintiff brought an invasion of privacy claim based on intrusion of seclusion against Dr. DelPrete. There is a similar claim in Count IV against Dr. Doe. The defendants have filed a motion to dismiss.
While I agree that the unauthorized viewing of medical records could constitute an invasion of privacy, the viewing in this case does not fit the requirements for the intrusion of seclusion subset of invasion of privacy. There are four types of invasion of privacy recognized as torts by the Maine Supreme Judicial Court. See Loe v. Town of Thomaston , 600 A.2d 1090, 1093 (Me. 1991). Among them is intrusion upon solitude or seclusion. This type was reviewed in Nelson v. Maine Times , 373 A.2d 1221 (1977). That opinion quoted from the Restatement (Second) of Torts at § 652B for the proposition that " One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person."
The defendant doctors did not enter the plaintiff's home or office or any physical space occupied by the plaintiff. The actions in this case, despite the words " or otherwise", fail to meet the requirement in Nelson , at 1223, that" . . . a complaint should minimally allege a physical intrusion upon premises occupied privately by a plaintiff for purposes of seclusion." An earlier case, which did allow a claim, involved an actual entry into the hospital room of a dying person. See Estate of Berthiaume v. Pratt, M.D ., 365 A.2d 792 (Me. 1976). The dismissal of Counts I and IV does not suggest that the doctor defendants' alleged conduct is acceptable only that the conduct does not constitute an invasion of seclusion privacy claim. If the words " or otherwise" are to be expanded to include violations using modern technology without a physical intrusion the Law Court will, in due time, do so.
In Counts II and V Dr. Price has brought invasion of privacy through public disclosure of private facts complaints against defendants DelPrete and Doe respectively. The defendants wish to dismiss these counts as well. Here, however, the complaint alleges sufficient facts to allow those claims to proceed.
The entries are:
Motion of Southern Maine Health Care to dismiss or stay is denied.
Motion to impound is denied.
Motion to dismiss of defendants Elisabeth DelPrete, D.O. and Jane Doe, D.O. is granted in part and denied in part. Counts I and IV of the complaint are dismissed.