C.E. v. Prairie Fields Family Med. P.C.

• Decision Date: 14 March 2014
• Docket Number: No. S–13–455.,S–13–455.
• Citation: 287 Neb. 667,844 N.W.2d 56
• Court: Nebraska Supreme Court
• Parties: C.E., Appellant, v. Prairie Fields Family Medicine P.C., Appellee.

287 Neb. 667

844 N.W.2d 56

C.E., Appellant,

v.Prairie Fields Family Medicine P.C., Appellee.

No. S–13–455.

Supreme Court of Nebraska.

Filed March 14, 2014.

Appeal from the District Court for Dodge County: Geoffrey C. Hall, Judge. Reversed and remanded for further 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.

Syllabus by the Court

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 inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error. 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 determination 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 argument 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 proving causation.

6. Summary Judgment: Proof. 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. 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. Summary Judgment: Evidence. When the parties' evidence would support reasonable, contrary inferences on the issue for which the movant seeks summary judgment, it is an inappropriate 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.

12. Negligence: Proof. A person who alleges negligence of another bears the burden to prove such negligence by direct or circumstantial evidence.

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 judgment 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 summary judgment.

BACKGROUND

In 2010, C.E. went to a diagnostic laboratory in Omaha, Nebraska, to have a physical examination for a life insurance application, and the laboratory took a blood sample. The laboratory 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, sometime 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 anything. 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 disclosure. 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 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 information. 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 interrogatories, she learned through a discovery request that Sara Sorensen worked at Prairie Fields as a medical transcriptionist. 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 medical 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 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 conversation. 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....