Abril v. Department of Corrections, 2D03-3123.

• Decision Date: 30 July 2004
• Docket Number: No. 2D03-3123.,2D03-3123.
• Citation: 884 So.2d 206
• Parties: Lisa M. ABRIL and Roberto Abril, Appellants, v. DEPARTMENT OF CORRECTIONS, Appellee.
• Court: Florida District Court of Appeals

884 So.2d 206

Lisa M. ABRIL and Roberto Abril, Appellants, v. DEPARTMENT OF CORRECTIONS, Appellee.

No. 2D03-3123.

District Court of Appeal of Florida, Second District.

July 30, 2004.

Dick W. Mount, Jr., Minerva, OH, for Appellants. Charles J. Crist, Jr., Attorney General, Tallahassee, and David J. Glantz, Assistant Attorney General, Fort Lauderdale, for Appellee.

CANADY, Judge.

Lisa M. Abril and her husband, Roberto Abril, appeal an order of the trial court dismissing their amended complaint against the Florida Department of Corrections (the department). Because we conclude that the complaint stated a cause of action, we reverse.

I. BACKGROUND

The amended complaint alleged that Mrs. Abril, in the course of her employment with the department as a senior licensed practical nurse at the Hendry County Correctional Institution, had given unprotected mouth-to-mouth resuscitation to an inmate. After it was determined that the inmate was infected with hepatitis C and that it was unknown whether the inmate was infected with HIV, Mrs. Abril unsuccessfully sought testing for hepatitis and HIV through the department's workers' compensation carrier, which declined to authorize the testing because it determined that the resuscitation did not expose her to a risk of infection. Subsequently, the institution's chief medical officer submitted a blood sample from Mrs. Abril to Continental Laboratory, a laboratory under contract with the State of Florida to provide clinical laboratory services for inmates for HIV testing.

The complaint further alleged that a document indicating that the test results for HIV were positive was faxed to an unsecured fax machine in the institution's business office and to another fax machine in Tallahassee at the department's offices of Chief Health Services, despite Continental Laboratory's assurances set forth in a prior fax to a "confidentially-secured" fax machine in the institution's medical office that the results of the test were confidential and would be hand delivered. It was alleged that the faxes with the test results were sent in response to a request for the information from a department employee who was concerned that the use of Continental Laboratory for the testing of Mrs. Abril's blood might not have been authorized. The complaint also alleged that a number of persons employed by the department, who were not authorized by law to know of the test results, became aware of the test results through Continental Laboratory's transmission of the results to the fax machines. It was ultimately determined through testing, paid for by the workers' compensation carrier, that Continental Laboratory's HIV test on Mrs. Abril's blood had produced a false positive and that Mrs. Abril had not in fact contracted HIV.

In count I of the complaint, Mrs. Abril sought damages for mental anguish and emotional distress arising from Continental Laboratory's alleged negligent failure to follow proper procedures to maintain the confidentiality of the HIV test results. Count I claimed that the department was liable for Continental Laboratory's negligence pursuant to section 768.28(10)(a), Florida Statutes (Supp.1996), which provides that

[h]ealth care providers or vendors, or any of their employees or agents[] that have contractually agreed to act as agents of the [department] to provide health care services to inmates of the state correctional system shall be considered agents of the [department] for the purposes of [section 768.28, Florida's sovereign immunity waiver statute], while acting within the scope of and pursuant to guidelines established in said contract or by rule.

In count II of the complaint, Mrs. Abril also sought damages for the negligence of the department and its employees in causing the test results to be improperly disseminated. However, Mrs. Abril does not argue on appeal that dismissal of this claim was improper. Consequently, we will not further address the dismissal of count II.

In count III of the complaint, Mr. Abril (who was a prison guard at the same institution as his wife) claimed damages for mental anguish and emotional distress arising from the disclosure of the test results. In count IV, Mr. Abril sought damages for loss of consortium. The complaint also contained a certification by the Abrils' counsel of compliance with all medical malpractice presuit requirements, as well as a statement of compliance with the requirements set forth in section 768.28(6) concerning actions against the state.

The department filed a motion to dismiss the complaint on the ground that there was no statutory or common law duty for a laboratory or governmental entity to protect the confidentiality of HIV test results. The department also argued that the complaint should be dismissed because section 381.004, Florida Statutes (Supp.1996), which provides for criminal penalties and certain administrative sanctions for unlawful disclosure of HIV test results, does not authorize a private cause of action for such disclosure.

The trial court granted the motion to dismiss, concluding that "there has not been established in the State of Florida any common law or statutory duty of care which requires a governmental entity to protect the confidentiality of HIV test results." The trial court also concluded that section 381.004 "provides criminal penalties for improper disclosure of HIV test results[] but does not authorize a private cause of action for such disclosure."

II. ISSUES ON APPEAL

The Abrils argue that the department is vicariously liable for Continental Laboratory's negligent breach of its duty to maintain the confidentiality of Mrs. Abril's test results. The department argues that there is no private cause of action for the breach of such a legal duty. The department also contends that any claim by the Abrils arising from their mental anguish and emotional distress is barred by the impact rule. The Abrils contend that the impact rule is not applicable to their claims which are based on Continental Laboratory's negligent breach of its duty to maintain the confidentiality of Mrs. Abril's test results.

III. ANALYSIS

Section 381.004 contains a series of provisions governing HIV testing. Section 381.004(3)(f) provides that, subject to certain exceptions not pertinent here, "the identity of any person upon whom [an HIV] test has been performed and [the] test results are confidential" and that "[n]o person who has obtained or has knowledge of a test result pursuant to [section 381.004] may disclose ... the identity of any person upon whom a test is performed[] or the results of such a test in a manner which permits identification of the subject of the test" except as specifically authorized by law. Penalties for the violation of the provisions of section 381.004 are set forth in section 381.004(6). Under section 381.004(6)(a), "licensed health care provider[s]" violating the statute are subject to "disciplinary action." Under section 381.004(6)(b), "[a]ny person who violates the confidentiality provisions" of the statute "commits a misdemeanor of the first degree." The statute makes no mention of private causes of action arising from violations of its provisions.¹

When a statute creates a clear duty of care, the violation of that duty can "generate[ ] a viable cause of action in tort." Gracey v. Eaker, 837 So.2d 348, 353 (Fla.2002); see also deJesus v. Seaboard Coast Line R.R. Co., 281 So.2d 198 (Fla. 1973)

(discussing imposition of tort liability for violation of statutory duty); Lewis v. City of Miami, 127 Fla. 426, 173 So. 150, 152 (1937) (citing Restatement (First) of Torts section 286 (1934) statement of circumstances where violation of statutory duty will give rise to tort liability); Golden Shoreline Ltd. v. McGowan, 787 So.2d 109 (Fla. 2d DCA 2001) (discussing types of negligence per se that may arise from statutory violation); Newsome v. Haffner, 710 So.2d 184, 186 (Fla. 1st DCA 1998) (stating that "a cause of action in negligence per se is created when a penal statute is designed to protect a class of persons, of which the plaintiff is a member, against a particular type of harm").

The circumstances in which a statutory provision will establish potential tort liability are set forth in Restatement (Second) of Torts section 286 (1965):

The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment... whose purpose is found to be exclusively or in part

(a) to protect a class of persons which includes the one whose interest is invaded, and

(b) to protect the particular interest which is invaded, and

(c) to protect that interest against the kind of harm which has resulted, and

(d) to protect that interest against the particular hazard from which the harm results.

See also Restatement (Second) of Torts section 288 (discussing circumstances in which "requirements of a legislative enactment" will not be adopted "as the standard of conduct of a reasonable man").

Here, the department has argued in essence that a tort cause of action can never arise from the violation of a statute unless the statute expressly authorizes such a cause of action. The department's position is not supported by the case law set forth above. As we will further discuss below, in Gracey the supreme court held that a tort action arose from the violation of a statutory duty of confidentiality closely analogous to the statutory duty at issue in this case. The department makes no argument that the claims asserted in the instant case do not satisfy the requirements set forth in Restatement (Second) of Torts section 286 (1965).

The complaint filed by the Abrils alleges facts that would be sufficient to establish that Continental Laboratory violated a duty imposed on it by section 381.004 to maintain the confidentiality of HIV test results and to disclose those results only as authorized by law. The issue presented for resolution thus is not whether the...