C.E. v. Prairie Fields Family Medicine ( 2014 )

Nebraska Advance Sheets
C.E. v. PRAIRIE FIELDS FAMILY MEDICINE 667
Cite as 287 Neb. 667
C.E., appellant, v. Prairie Fields
Family Medicine P.C., appellee.
___ N.W.2d ___
Filed March 14, 2014. No. S-13-455.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom the judgment was
granted, and gives that party the benefit of all reasonable inferences deducible
from the evidence.
3. Summary Judgment: Final Orders. A summary judgment order that completely
disposes of the subject matter of the case and leaves nothing for the court’s deter-
mination is final.
4. Appeal and Error. Absent plain error, an appellate court considers only an
appellant’s claimed errors that the appellant specifically assigns in a separate
“assignment of error” section of the brief and correspondingly argues in the argu-
ment section.
5. Negligence: Proof. Identifying a defendant’s tortious conduct is crucial to a
causal inquiry, but proving tortious conduct is a separate requirement from prov-
ing causation.
6. Summary Judgment: Proof. A party moving for summary judgment has the bur-
den to show that no genuine issue of material fact exists and must produce suf-
ficient evidence to demonstrate that it is entitled to judgment as a matter of law.
If the movant meets this burden, then the nonmovant must show the existence of
a material issue of fact that prevents judgment as a matter of law.
7. Summary Judgment: Evidence. In the face of direct, uncontroverted evidence
supporting judgment for the movant, a nonmovant’s equivocal statements or
speculative assertions do not create a material issue of fact on a disputed ground
for summary judgment. The evidence must be sufficient to support an inference
in the nonmovant’s favor without the fact finder engaging in guesswork.
8. ____: ____. When the parties’ evidence would support reasonable, contrary infer-
ences on the issue for which the movant seeks summary judgment, it is an inap-
propriate remedy.
9. Negligence. Where reasonable minds could draw different conclusions from the
facts and circumstances presented, a defendant’s negligence presents a triable
issue of material fact.
10. Summary Judgment. At the summary judgment stage, the trial court determines
whether the parties are disputing a material issue of fact. It does not resolve the
factual issues.
11. Summary Judgment: Trial. Summary judgment is an extreme remedy and
should not be used to deprive a litigant of a formal trial if there is a genuine issue
of material fact.
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12. Negligence: Proof. A person who alleges negligence of another bears the burden
to prove such negligence by direct or circumstantial evidence.
Appeal from the District Court for Dodge County:
Geoffrey C. Hall, Judge. Reversed and remanded for fur-
ther proceedings.
Christopher A. Pfanstiel and W. Gregory Lake, of Lewis,
Pfanstiel & Reed, L.L.C., for appellant.
Earl G. Greene III and Michael T. Gibbons, of Woodke &
Gibbons, P.C., L.L.O., for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
Connolly, J.
SUMMARY
C.E. appeals the district court’s order granting summary
judgment to Prairie Fields Family Medicine P.C. (Prairie
Fields). C.E. brought claims of intentional and negligent
infliction of emotional distress and invasion of privacy. She
alleged that a Prairie Fields employee disclosed her positive
blood test results for human immunodeficiency virus (HIV)
to a third party, which information then spread throughout the
Fremont, Nebraska, community where C.E. did business and
had friends.
The district court dismissed C.E.’s invasion of privacy claim
because it was time barred. Later, it sustained Prairie Fields’
summary judgment motion on C.E.’s claims for intentional and
negligent infliction of emotional distress. The summary judg-
ment order is the only ruling assigned as error on appeal. The
issue is whether C.E. raised a genuine issue of material fact
that someone at Prairie Fields disclosed information from her
private medical records. We conclude that she did and that the
district court erred in sustaining Prairie Fields’ motion for sum-
mary judgment.
BACKGROUND
In 2010, C.E. went to a diagnostic laboratory in Omaha,
Nebraska, to have a physical examination for a life insurance
Nebraska Advance Sheets
C.E. v. PRAIRIE FIELDS FAMILY MEDICINE 669
Cite as 287 Neb. 667
application, and the laboratory took a blood sample. The labo-
ratory sent the blood sample to another laboratory, which sent
the test results directly to C.E.’s physician at Prairie Fields in
Fremont. Although C.E. was unsure of the exact date, some-
time in September 2010, Prairie Fields arranged for C.E. to
come in for a consultation. When C.E. arrived on a Thursday at
about 3 or 4 p.m., Kristy Stout-Kreikemeyer, whom C.E. knew
from high school, showed C.E. to a room. C.E. said that when
she asked about her test results, Stout-Kreikemeyer looked in
C.E.’s file, flushed, and responded that she could not say any-
thing. The record shows that a physician’s assistant told C.E.
about her positive HIV test. C.E. said that she was told the test
was inconclusive; she agreed to another test.
C.E. testified that the next day, Friday, at about 7 p.m.,
Jonathan Karr, the father of one of C.E.’s daughters, called
her or sent text messages to ask how she was because he had
heard from his friend Jamie Goertz that she had “‘Aids, full
blown-out Aids.’” C.E. said Karr sent her the text message
that he had received from Goertz. But Karr did not know who
had given Goertz that information. C.E. had known Goertz
since 2001, but she had not recently kept in contact with
Karr or Goertz. C.E. said that she called Goertz to find out
his source but that Goertz denied knowing anything about
her medical condition and denied contacting Karr. Because
C.E. had seen Goertz’ text message to Karr, she believed that
Goertz was lying to protect someone. C.E. had known Goertz
since 2001 through his former wife, because C.E. had babysat
their children.
On Monday, C.E. called her doctor at Prairie Fields to find
out how this information could have been disclosed and asked
him to question his staff. The doctor called C.E. later that week
and said that none of his staff knew anything about the disclo-
sure. But he assured C.E. that he had locked up her file and
directed more training for his staff on privacy laws.
In February 2012, C.E. filed her complaint. C.E. included
Stout-Kreikemeyer as a defendant and alleged that she had
disclosed C.E.’s test result to a third party. In July, the court
sustained Prairie Fields’ motion to dismiss C.E.’s invasion
of privacy claim because the applicable statute of limitations
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barred the claim.1 In September, Stout-Kreikemeyer testified
in a deposition that although she knew C.E. in high school,
she did not know Goertz or Karr. In October, in response to
interrogatories, C.E. admitted that she was not sure whether
Stout-Kreikemeyer was the person who had disclosed the infor-
mation. She also admitted during her subsequent deposition
that she did not know for certain whether Stout-Kreikemeyer
or someone else at Prairie Fields had disclosed the information.
C.E. believed it could have been Stout-Kreikemeyer because
she had seen a social contact between her and Goertz on an
Internet social media service.
But C.E. testified that she knew someone at Prairie Fields
had disclosed the information. She testified that she had
worked in insurance sales and had made specific inquiries.
So she knew the life insurance company and the diagnostic
laboratory in Omaha would not have received the test results.
The Omaha laboratory’s staff had told her the procedure is to
send an applicant’s blood sample to a different laboratory and
then the other laboratory electronically sends the test results
directly to the applicant’s physician so that no one else learns
of the results.
C.E. testified that she did not tell anyone about the test
result because she believed that the test result was a false
positive. She believed this because her doctor had told her that
other antibodies could cause a false positive result and because
she had a family history of autoimmune conditions.
After Prairie Fields deposed C.E. and she answered inter-
rogatories, she learned through a discovery request that Sara
Sorensen worked at Prairie Fields as a medical transcription-
ist. Sorensen was Goertz’ former wife, and C.E. believed
that Sorensen had disclosed the test results to him. Prairie
Fields stipulated that Sorensen had transcribed C.E.’s medi-
cal records.
In Goertz’ deposition, he said that he and Sorensen had
many contacts with C.E. beginning in 2000 or 2001 and that
C.E. was around them a lot when their children were young.
He said he heard a rumor while he was at a bar one afternoon
1
See Neb. Rev. Stat. § 20-211 (Reissue 2012).
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that C.E. had contracted HIV. He initially said that he could
not remember who had told him the rumor but then said he
had overheard two unknown men talking about it. He denied
hearing the rumor from Sorensen. He said that he told Karr
about the rumor after Karr mentioned C.E. during a conversa-
tion. But after C.E.’s attorney informed Goertz that he had a
subpoena for Goertz’ telephone records, Goertz said that he
had called Karr. According to Goertz, he told Karr that he had
heard a rumor that C.E. had HIV and recommended that Karr
get tested.
In Sorensen’s deposition, she admitted that she knew C.E.
in 2001 because she was dating Goertz, who was a long-time
friend of Karr, and C.E. was dating Karr. She admitted that the
two couples had socialized. She said that Karr even lived with
her and Goertz for a couple of months around the time that
they separated in 2004. But Sorensen said that C.E. had baby­
sat their children only a few times and that she did not know
her well. She said that when she typed C.E.’s medical records,
she did not associate C.E. with the test results and did not know
the test results were C.E.’s until months later when Sorensen’s
supervisor and two physicians at Prairie Fields questioned her
about the disclosure. She admitted that Prairie Fields likely
would have fired her if she had reported disclosing a patient’s
medical records. Sorensen stated she had never heard a rumor
that C.E. had contracted HIV. She denied contacting Goertz to
discuss C.E.’s medical history.
In April 2013, the court heard Prairie Fields’ motion for
summary judgment and to dismiss C.E.’s complaint with preju-
dice. According to the parties’ statements, C.E. had moved to
add a new defendant. But Prairie Fields argued that the court
need not address that motion if the court sustained its motion
for summary judgment. The parties agreed to dismiss Stout-
Kreikemeyer from the action.
The court couched its order in terms of causation but
focused on C.E.’s failure to create an issue of fact that some-
one from Prairie Fields had disclosed her diagnosis to a
third party:
[Prairie Fields] introduced substantial competent evi-
dence to establish a prima faci[e] showing that there
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is a lack of causation by [Prairie Fields] or its agents
related to any claim for damages made by [C.E.] in this
case. Thus, the Court looks to [C.E.] to produce com-
petent evidence in order to create an issue of material
fact, which would allow [C.E.] to avoid summary judg-
ment. . . .
The Court, in reviewing the entire evidentiary record
submitted, in a light most favorable to [C.E.], can find
no competent evidence from [C.E.], which indicates that
[Prairie Fields] or its agents [were] somehow negligent
and that said negligence caused some type of damage/
injury to [C.E.]
In reaching this decision, the Court finds persuasive the
deposition testimony of the relevant witnesses involved in
this case which is uncontroverted that the disclosed infor-
mation did not come from an agent of [Prairie Fields].
Further, [C.E.] in her deposition testified that she did not
know who disclosed this information. . . . It is well settled
Nebraska law that a claim cannot stand when it is based
merely on speculation or conjecture. . . .
[Prairie Fields] has made a prima facie showing that
there is a lack of causation related to [Prairie Fields].
[C.E.], on the other hand, has failed to bring forth com-
petent evidence to prove more likely than not that [Prairie
Fields] or its agents were somehow the proximate cause
of some injury or damage to [C.E.]
The court concluded that Prairie Fields was entitled to judg-
ment as a matter of law.
ASSIGNMENT OF ERROR
C.E. assigns that the court “erred in failing to find there
was a question of fact as to whether [C.E.] established proxi-
mate causation between Prairie Fields’ negligence and damage
to [C.E.]”
STANDARD OF REVIEW
[1,2] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
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Cite as 287 Neb. 667
or as to the ultimate inferences that may be drawn from the
facts and that the moving party is entitled to judgment as a
matter of law.2 In reviewing a summary judgment, an appel-
late court views the evidence in the light most favorable to the
party against whom the judgment was granted, and gives that
party the benefit of all reasonable inferences deducible from
the evidence.3
ANALYSIS
C.E. contends that the court erred in concluding that no
issue of fact existed whether Prairie Fields or its agents had
disclosed her medical diagnosis to a third party. Conversely,
Prairie Fields contends that C.E.’s circumstantial evidence was
insufficient to show that an employee of Prairie Fields dis-
closed her diagnosis.
[3] Initially, we clarify that Prairie Fields’ motion for sum-
mary judgment was effectively a request for judgment on any
remaining claim in C.E.’s complaint. And the court’s order
stated that C.E. had failed to show causation for any claim
of damages that she had against Prairie Fields or its agents.
So we interpret the court’s order as sustaining Prairie Fields’
motion for summary judgment on C.E.’s two remaining claims:
both intentional and negligent infliction of emotional distress.
Because the summary judgment order completely disposed of
the subject matter of the case and left nothing for the court’s
determination, it was final.4
[4] Next, we clarify that we are not addressing C.E.’s argu-
ment that Prairie Fields’ alleged disclosure of her medical
diagnosis was an invasion of her privacy. The court dismissed
C.E.’s invasion of privacy claim as time barred, and C.E. does
not assign error to that ruling. Absent plain error, an appel-
late court considers only an appellant’s claimed errors that
the appellant specifically assigns in a separate “assignment of
2
Selma Development v. Great Western Bank, 285 Neb. 37, 825 N.W.2d 215
(2013).
3
Id.
4
See Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012).
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error” section of the brief and correspondingly argues in the
argument section.5 We do not find plain error in the ruling.
[5] Finally, we clarify the issue to be decided in this appeal.
The court incorrectly characterized the parties’ factual dis-
pute as relevant to the element of causation. It specifically
concluded that C.E.’s claims were speculative because she
adduced no evidence showing that someone at Prairie Fields
had disclosed her diagnosis, in contrast to the defendants’
uncontroverted evidence that Prairie Fields’ employees did not
disclose the information. This is the crux of the parties’ argu-
ments on appeal. But for both of C.E.’s tort claims, whether
someone at Prairie Fields disclosed her diagnosis was rel-
evant to her burden of proving tortious conduct. Identifying
a defendant’s tortious conduct is crucial to a causal inquiry,
but proving tortious conduct is a separate requirement from
proving causation.6 Here, the parties are disputing the tortious
conduct element—whether there was an unlawful disclosure.
With these clarifications, we turn to the standards that govern
summary judgment.
[6] A party moving for summary judgment has the burden
to show that no genuine issue of material fact exists and must
produce sufficient evidence to demonstrate that it is entitled to
judgment as a matter of law.7 If the movant meets this burden,
then the nonmovant must show the existence of a material
issue of fact that prevents judgment as a matter of law.8
[7] In the face of direct, uncontroverted evidence sup-
porting judgment for the movant, a nonmovant’s equivocal
statements or speculative assertions do not create a material
5
In re Interest of Landon H., ante p. 105, 841 N.W.2d 369 (2013).
6
See, Blaser v. County of Madison, 285 Neb. 290, 826 N.W.2d 554 (2013);
Kozicki v. Dragon, 255 Neb. 248, 583 N.W.2d 336 (1998); Restatement
(Third) of Torts: Liability for Physical and Emotional Harm § 26, comment
h. (2010); 65 C.J.S. Negligence § 190 (2010).
7
See Peterson v. Homesite Indemnity Co., ante p. 48, 840 N.W.2d 885
(2013).
8
See id.
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issue of fact on a disputed ground for summary judgment.9
The evidence must be sufficient to support an inference in
the nonmovant’s favor without the fact finder engaging in
guesswork.10
[8-11] But when the parties’ evidence would support rea-
sonable, contrary inferences on the issue for which a movant
seeks summary judgment, it is an inappropriate remedy.11 As
we have stated many times, where reasonable minds could
draw different conclusions from the facts and circumstances
presented, a defendant’s negligence presents a triable issue of
material fact.12 At the summary judgment stage, the trial court
determines whether the parties are disputing a material issue
of fact. It does not resolve the factual issues.13 Summary judg-
ment is an extreme remedy and should not be used to deprive
a litigant of a formal trial if there is a genuine issue of mate-
rial fact.14
C.E. argues that her claim necessarily relied on circumstan-
tial evidence and that the court erred in failing to find that
such evidence was sufficient to create an issue of fact whether
Sorensen had disclosed C.E.’s positive HIV test. She argues
that only a person who worked at Prairie Fields could have
learned this information and disclosed it to a third party. She
further argues that the court erred in relying on her lack of
knowledge about the source of the disclosure in her deposition
9
See Shipley v. Department of Roads, 283 Neb. 832, 813 N.W.2d 455
(2012).
10
See Parker v. Lancaster Cty. Sch. Dist. No. 001, 256 Neb. 406, 591
N.W.2d 532 (1999).
11
See, Farmington Woods Homeowners Assn. v. Wolf, 284 Neb. 280, 817
N.W.2d 758 (2012); Richards v. Meeske, 268 Neb. 901, 689 N.W.2d 337
(2004); Parker, supra note 10.
12
See, e.g., Harrison v. Seagroves, 250 Neb. 495, 549 N.W.2d 644 (1996);
Pearson v. Richard, 201 Neb. 621, 271 N.W.2d 326 (1978).
13
See Woodhouse Ford v. Laflan, 268 Neb. 722, 687 N.W.2d 672 (2004).
14
See Green v. Box Butte General Hosp., 284 Neb. 243, 818 N.W.2d 589
(2012).
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and answers to interrogatories because she did not then know
about Sorensen’s employment with Prairie Fields.
[12] A person who alleges negligence of another bears the
burden to prove such negligence by direct or circumstantial
evidence.15 In Parker v. Lancaster Cty. Sch. Dist. No. 001,16 a
premises liability case, we held that the circumstantial evidence
was sufficient to support an inference that the defendant’s neg-
ligence had caused the plaintiff’s fall. We reached this conclu-
sion even though the plaintiff had stated in a deposition that
she was unsure what had caused her fall. We acknowledged
that this statement, standing alone, would support an inference
that the cause of her fall was unknown. But immediately after
the fall, the plaintiff had reported that she did not see a step.
Other evidence established that the plaintiff was mentally alert
and that the steps presented a risk to visitors. We concluded
that the circumstantial evidence was sufficient to support a rea-
sonable inference in the plaintiff’s favor that she fell because
the step was not plainly visible.
Although the issue in Parker was causation, the same rea-
soning regarding circumstantial evidence applies here. And
giving C.E. the benefit of all reasonable inferences, the circum-
stantial evidence that she presented was sufficient to support
an inference in her favor.
To recap, C.E. testified that Karr contacted her on Friday
night—after she had learned about the positive results in the
late afternoon on Thursday. Goertz admitted that he called Karr
about C.E.’s contracting HIV. It is true Goertz testified that he
overheard a rumor to this effect from strangers while at a bar
around 1 or 2 p.m. He did not remember what day he purport-
edly heard this rumor in a bar. But if a trier of fact believed
C.E.’s testimony, then Goertz heard a rumor about C.E.’s
contracting HIV less than 24 hours after C.E. learned the test
results herself and despite her not disclosing the information
to anyone else. And Prairie Fields did not present evidence to
refute C.E.’s testimony that no one at the Omaha diagnostic
15
Herrera v. Fleming Cos., 265 Neb. 118, 655 N.W.2d 378 (2003), citing
Bargmann v. Soll Oil Co., 253 Neb. 1018, 574 N.W.2d 478 (1998).
16
Parker, supra note 10.
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laboratory or insurance company would have known about her
test results.
The court incorrectly concluded that the testimony of Prairie
Fields’ witnesses was uncontroverted. If Sorensen and Goertz
truthfully stated that Sorensen did not disclose C.E.’s diagnosis
to Goertz, then C.E. must be lying that Goertz contacted Karr
the day after C.E. learned about the positive test result, despite
C.E.’s not disclosing her diagnosis to anyone. Conversely, if
C.E.’s testimony is believed, then the most probable expla-
nation for Goertz’ learning about her diagnosis so quickly—
whether from overhearing a rumor or speaking directly to
Sorensen—is that someone at Prairie Fields disclosed it to a
third party. Prairie Fields argues that C.E. could have disclosed
her diagnosis to her boyfriend and that Goertz could have
overheard the boyfriend repeating the rumor the next day in
a bar. But C.E. testified that she did not tell anyone about her
diagnosis, and the court was required to give her all reasonable
inferences based on that testimony.
Alternatively, Prairie Fields argues that under our case law,
circumstantial evidence must meet a higher standard than
direct proof in negligence cases. It relies on Herrera v. Fleming
Cos.,17 a 2003 case in which we stated that “[w]hile circum-
stantial evidence may be used to prove causation, the evidence
must be sufficient to fairly and reasonably justify the conclu-
sion that the defendant’s negligence was the proximate cause of
the plaintiff’s injury.” It also relies on our statement in Ditloff
v. State Farm Fire & Cas. Co.18 that circumstantial evidence
must “‘“make the plaintiffs’ theory of causation reasonably
probable, not merely possible.”’”
We acknowledge that some of our civil cases have not
treated circumstantial and direct evidence equally.19 In fact,
we recognized this tension in Ditloff.20 But we need not
17
Herrera, supra note 15, 265 Neb. at 123, 655 N.W.2d at 383.
18
Ditloff v. State Farm Fire & Cas. Co., 225 Neb. 375, 379, 406 N.W.2d
101, 104 (1987).
19
See NJI2d Civ. 1.31, comment III. Compare State v. Pierce, 248 Neb. 536,
537 N.W.2d 323 (1995).
20
See Ditloff, supra note 18.
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address whether the statements that Prairie Fields relies on
impose a higher burden of production for circumstantial evi-
dence in civil cases generally, because they are not applicable
here. Our statement in Herrera was limited to proof of causa-
tion by circumstantial evidence. As explained, the issue here
is proof of tortious conduct, not causation. And the dispute
in Ditloff was over a directed verdict, not a summary judg-
ment order.
As stated, the issue here is whether the evidence pre-
sented—viewed in the light most favorable to C.E. and giving
her all reasonable inferences—would support an inference
in her favor, without engaging in guesswork, that a Prairie
Fields employee disclosed her HIV diagnosis to a third party.
We conclude that C.E.’s evidence was sufficient to show that
Prairie Fields was not entitled to judgment as a matter of
law. The court erred by concluding C.E. presented no com-
petent evidence that a Prairie Fields employee had disclosed
her diagnosis. Moreover, the court incorrectly stated that her
evidence must show it was more likely than not that a Prairie
Fields employee had disclosed her diagnosis. A court does not
weigh the evidence at the summary judgment stage.
CONCLUSION
Because reasonable minds could draw contrary conclusions
from the evidence presented, Prairie Fields did not show that
it was entitled to judgment as a matter of law. We therefore
reverse the court’s summary judgment order and remand the
cause for further proceedings.
R eversed and remanded for
further proceedings.
Stephan, J., not participating.