Jennifer Hall v. Highlands Hospital Corporation ( 2022 )

RENDERED: OCTOBER 14, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0242-MR
JENNIFER HALL APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
v. HONORABLE JOHNNY RAY HARRIS, JUDGE
ACTION NO. 19-CI-00505
HIGHLANDS HOSPITAL
CORPORATION AND
CONSOLIDATED HEALTH
SYSTEMS, INC. APPELLEES
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
ACREE, JUDGE: Appellant Jennifer Hall appeals the Floyd Circuit Court’s
October 21, 2020 order granting summary judgment in favor of Appellees
Highlands Hospital Corporation and Consolidated Health Systems. We affirm.
BACKGROUND
From October 2017 until January 29, 2019, Appellant worked at an
after-hours clinic operated by Appellees. When Appellees determined Appellant
breached patient confidentiality, they terminated her employment.
Appellant worked as a medical assistant, which involved assisting
healthcare providers at the clinic. Immediately after being hired, Appellant
received extensive training concerning the confidentiality of the clinic’s patients
and the importance of protecting patient confidentiality. Appellees fired Appellant
over two instances in which Appellant revealed patient confidential information.
The first incident occurred on January 10, 2019, when Appellant
commented on a Facebook post concerning the death of a patient. She posted:
“Please be in prayer for the family of one of my sweet patients[.]” By doing so,
Appellant revealed the deceased had been a patient, which constituted revealing
confidential information in violation of Appellee’s policies. We agree with the
circuit court that this violation likely did not amount to a material violation of
Appellee’s policies we discuss below.
The second, and more serious violation, occurred on January 14,
2019, when a female patient presented to the clinic with a spot on the back of her
thigh. A doctor looked at the mark and treated the patient for, what the doctor
believed, was a chemical burn. Appellant believed the doctor misdiagnosed the
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patient and took a picture of the mark with her personal cellphone. Both parties
dispute whether Appellant had permission to take the photo, but whether she had
permission is irrelevant to our analysis.
After taking the photo, Appellant began showing the photo to her co-
workers (nine in total, eight which were not directly involved in the patient’s care),
believing the doctor misdiagnosed the mark. After showing another doctor the
photo, the second doctor re-diagnosed the mark, confirming Appellant’s suspicion.
However, when the patient learned of Appellant’s conduct, she reported Appellant
to Appellees.
Initially, Appellees suspended Appellant without pay while it
investigated Appellant’s actions. After this investigation, Appellees terminated
Appellant for violations of numerous policies maintained by Appellees.
Appellees required Appellant (and all employees) annually to review
and sign the Highlands Health System Employee Confidentiality Agreement,
which states: “I will not intentionally share or release confidential information
about the patient to anyone not directly involved in the patient’s care[.]” Under
this policy, patient information may only be shared with individuals directly
involved with the patient’s care. Co-workers not directly involved in the patient’s
care should not be told confidential information about a patient.
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Additionally, Appellees have a Wireless Communication Devices
Policy, which prohibits the use of personal cellphones in patient treatment areas to
take photographs. Appellees also maintain a Confidential Matters Policy, which
states: “[r]easons for admission and information about diagnosis and treatment are
absolutely confidential and must be respected as such[.]” Appellee also has a
Social Media Policy, which prohibits employees from sharing information about
patients, including a patient’s identity, on social media.
Additionally, as the circuit court noted, Appellant was trained (as all
employees are) “how to report a concern regarding patient safety or care issues[.]”
(Record (R.) at 558).
In August 2019, Appellant filed suit against Appellees alleging they
violated KRS1 216B.165(3), which prohibits employers from retaliating against
employees who makes reports regarding their reasons for “believ[ing] that the
quality of care of a [healthcare] patient . . . is in jeopardy[.]” KRS 216B.165(1),
(3). Appellant alleges her actions fall under the protection of that statute. She also
later amended her complaint to include a defamation claim.
Appellee filed a motion for summary judgment, and the circuit court
granted the motion as to all claims.
This appeal follows.
1
Kentucky Revised Statutes.
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STANDARD OF REVIEW
A circuit court properly grants summary judgment “if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR2 56.03. “An appellate court’s role in reviewing a summary judgment is
to determine whether the trial court erred in finding no genuine issue of material
fact exist[ed] and the moving party was entitled to judgment as a matter of law.”
Feltner v. PJ Operations, LLC, 568 S.W.3d 1, 3 (Ky. App. 2018).
Thus, appellate courts use de novo review when reviewing a circuit
court’s order granting summary judgment. Cmty. Fin. Servs. Bank v. Stamper, 586
S.W.3d 737, 741 (Ky. 2019). However, summary judgment “is only proper where
the movant shows that the adverse party could not prevail under any
circumstances.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480
(Ky. 1991).
ANALYSIS
The statute governing Appellant’s retaliatory discharge claim states,
in full, as follows:
(1) Any agent or employee of a health care facility or
service licensed under this chapter who knows or has
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Kentucky Rules of Civil Procedure.
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reasonable cause to believe that the quality of care of a
patient, patient safety, or the health care facility’s or
service’s safety is in jeopardy shall make an oral or written
report of the problem to the health care facility or service,
and may make it to any appropriate private, public, state,
or federal agency.
(2) Any individual in an administrative or supervisory
capacity at the health care facility or service who receives
a report under subsection (1) of this section shall
investigate the problem, take appropriate action, and
provide a response to the individual reporting the problem
within seven (7) working days.
(3) No health care facility or service licensed under this
chapter shall by policy, contract, procedure, or other
formal or informal means subject to reprisal, or directly or
indirectly use, or threaten to use, any authority or
influence, in any manner whatsoever, which tends to
discourage, restrain, suppress, dissuade, deter, prevent,
interfere with, coerce, or discriminate against any agent or
employee who in good faith reports, discloses, divulges,
or otherwise brings to the attention of the health care
facility or service the circumstances or facts to form the
basis of a report under subsections (1) or (2) of this section.
No health care facility or service shall require any agent or
employee to give notice prior to making a report,
disclosure, or divulgence under subsections (1) or (2) of
this section.
(4) All reports, investigations, and action taken subject to
this chapter shall be conducted in a manner that protects
and maintains the confidentiality of patients and personnel
and preserves the integrity of data, information, and
medical records.
(5) All health care facilities and services licensed under
this chapter shall, as a condition of licensure, abide by the
terms of KRS 216B.155 and this section.
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(6) No agent or employee of a health care facility or
service shall file a report under subsection (1) or (2) of this
section in bad faith and shall have a reasonable basis for
filing a report.
KRS 216B.165. We apply the statute to Appellant’s claim just as the circuit court
did.
To establish a prima facie claim of retaliation against Appellees, the
Appellant need to demonstrate: (1) she engaged in a protected activity, (2)
Appellee knew about the protected activity, (3) Appellee took an adverse
employment action against her because of it, and (4) there is a causal connection
between the adverse employment action taken by Appellee and the protected
activity. Colorama, Inc. v. Johnson, 295 S.W.3d 148, 152 (Ky. App. 2009). This
is the same analysis applied in other species of retaliation claims. See Kentucky
Dep’t of Corr. v. McCullough, 123 S.W.3d 130, 133-34 (Ky. 2003) (retaliation for
reporting civil rights violations, KRS 344.280).
When challenged by summary judgment motion, Appellant was
required to produce evidence that all her conduct was protected activity. We
conclude that some of Appellant’s activity was protected. However, much of her
activity did not just violate Appellees’ policies; it violated KRS 216B.165(4)
which requires that, to qualify as protected, “[a]ll reports, investigations, and action
taken subject to this chapter shall be conducted in a manner that protects and
maintains the confidentiality of patients . . . .”
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Furthermore, KRS 216B.165(1) requires that an “oral or written
report” be made “to the health care facility or service,” not to co-workers unrelated
to the patient’s care, so that an “individual in an administrative or supervisory
capacity at the health care facility or service who receives [such] report under
subsection (1) of this section shall investigate . . . .” KRS 216B.165(2). Here, the
second doctor with whom Appellant shared the photo and her concerns may have
been an individual in an administrative or supervisory capacity. However, even a
broad reading of KRS 216B.165 would not shroud as protected activity
Appellant’s showing the photograph of a patient’s injured leg to eight other
individuals, none of whom were directly involved in the patient’s care. That
activity is not protected under KRS 216B.165.
Appellant’s activity clearly violated Appellee’s policies and, if
deemed an attempt at reportage under KRS 216B.165, violated subsection (4) of
that statute. Such conduct constitutes non-pretextual cause to terminate
Appellant’s employment. For these reasons, Appellant’s argument for reversing
the summary judgment fails. The circuit court did not err in granting it.
Finally, we address Appellant’s defamation claim. To prevail on a
defamation claim, Appellant must show: (1) Appellee used defamatory language
about the plaintiff; (2) Appellee published the defamatory language; and (3) the
language must cause injury to Appellant’s reputation. Columbia Sussex Corp. v.
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Hay, 627 S.W.2d 270, 273 (Ky. App. 1981). In reviewing the record, we find
nothing to indicate Appellant produced evidence to create a genuine issue
regarding the material facts to support such a claim and, thereby, defeat the
summary judgment motion regarding her defamation claim. Accordingly, we find
no error on the circuit court’s part in granting the motion as to that claim.
CONCLUSION
For the aforementioned reasons, we affirm.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Earl M. McGuire Laura L. Mays
Prestonsburg, Kentucky Lexington, Kentucky
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