Doe v. Walgreens Co.

• Decision Date: 24 November 2010
• Docket Number: No. W2009-02235-COA-R3-CV,W2009-02235-COA-R3-CV
• Parties: JANE DOE and JOHN DOE v. WALGREENS COMPANY, et al.
• Court: Tennessee Court of Appeals

JANE DOE and JOHN DOE
v.
WALGREENS COMPANY, et al.

No. W2009-02235-COA-R3-CV

COURT OF APPEALS OF TENNESSEE
AT JACKSON

October 15, 2010
Filed: November 24, 2010

Direct Appeal from the Circuit Court for Shelby County

No. CT-002912-08 Robert L. Childers, Judge

This is an appeal from the grant of Appellees/Defendants' Tenn. R Civ. P 12.02 motion to dismiss. Appellant Jane Doe, who is HIV positive, was employed by Appellee Walgreens. In an effort to keep her medical condition private, Ms. Doe had her prescriptions filled at a Walgreens location other than the one at which she worked; therefore, Ms. Doe was also a customer of Walgreens. A co-worker of Ms. Doe's accessed Ms. Doe's prescription history in the Walgreens' database, and then disseminated her medical information to other coworkers and to Ms. Doe's fiance. Ms. Doe and her fiance filed suit. The trial court dismissed the lawsuit, finding that the Does' exclusive remedy was under the workers' compensation act. Finding that the injuries sustained by Ms. Doe do not arise out of her employment with Walgreens, and that she has sufficiently pled causes of action outside workers' compensation law, we reverse the order of dismissal and remand.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Reversed and Remanded

J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which DAVID R. FARMER, J., and HOLLY M. KIRBY, J., joined.

David A. Stowers and Coleman W. Garrett, Memphis, Tennessee, for the appellants, Jane and John Doe.

Leland M. McNabb and Courtney S. Vest, Memphis, Tennessee, for the appellees, Walgreens Company, Paris Ghoston and Dr. Grady Saxton.

OPINION

At the time of the incidents giving rise to the instant appeal, Jane Doe worked as a

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pharmacy technician for the Walgreens store on Winchester Road in Memphis. Ms. Doe's direct supervisor was the manager of the pharmacy, Dr. Grady Saxton. Jane Doe, who is HIV positive, was also a customer of Walgreens but had her prescriptions filled at a different Walgreens store in Memphis. Ms. Doe avers that she did so in order to maintain privacy concerning her medical condition.

Walgreens maintains a secure database, and customer information is only authorized to be accessed in conjunction with filling a customer's prescription. According to the Complaint, on August 24, 2004, Dr. Saxton informed Ms. Doe that he had overheard other employees discussing Ms. Doe's HIV status. That same day, Dr. Saxton also allegedly telephoned Ms. Doe's fiance, John Doe (together with Jane Doe, "Plaintiffs," or "Appellants") and informed Mr. Doe of Ms. Doe's condition.¹ Four days after Dr. Saxton made this call, Ms. Doe's co-worker, Paris Ghoston (together with Walgreens and Dr. Saxton, "Defendants," or "Appellees") allegedly admitted that she had accessed Walgreens' database in order to confirm Ms. Doe's HIV status. As a result of the exposure of her HIV status, Ms. Doe's co-workers, including Ms. Ghoston, allegedly withdrew their agreement to participate in Ms. Doe's wedding (as bridesmaids). Jane Doe subsequently terminated her job at Walgreens based upon the alleged adverse treatment she received as a result of the fact that her HIV status had been exposed.

On June 13, 2008, Ms. Doe filed a complaint against Walgreens, Dr. Saxton, and Ms. Ghoston.² The Complaint provides, in pertinent part, as follows:

8. On or about January 2002, Jane Doe was employed by Walgreens as a pharmacist technician at its store located [on] Winchester [Road], Memphis, Tennessee.
9. Walgreens, to protect the privacy of its HIV positive pharmacy patients and customers, maintained a secure database open only to those employees who serviced these particular patients and customers and who had a business reason to know the medical status of these individuals.
10. Plaintiff, Jane Doe, during the entire course of her

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employment with Walgreens, was HIV positive.
11. Plaintiff, Jane Doe, in an attempt to remove the need to know for employees who worked at her store location, had her prescriptions filled at the Walgreens store located at 3177 S. Perkins, Memphis, Tennessee.
12. At all times pertinent to this action Plaintiff Jane Doe was enrolled as a State of Tennessee Tenn Care recipient for prescription and medical care. Defendant Walgreens accepted payment for Jane Doe's prescriptions from said state program.
13. Plaintiff Jane Doe wished to and expected to keep her HIV status secret and confidential from her co-employees and the public.
1 4. Dr. Saxton, who at all time pertinent herein, was a registered pharmacist, licensed by the State of Tennessee, was also a full time employee of Walgreens. Moreover, Dr. Saxton was the immediate supervisor of Plaintiff Jane Doe at the Walgreen's store [where she worked].
15. On or about August 24, 2004, Dr. Saxton, without medical or legal justification, and without it being job related or a business necessity, telephoned Plaintiff Jane Doe's fiance and informed him of Plaintiff Jane Doe's HIV status.
16. On or about August 24, 2004, Dr. Saxton stated to Plaintiff[] that he overheard other employees, who without medical or legal justification or without it being job related or a business necessity, discussing her HIV status.
17. On or about August 28, 2004, Ghoston stated to Plaintiff that she deliberately accessed Walgreens' database to[] review Jane Doe's file to ascertain her medical condition.
18. O n or about September 4, 2004, Defendant Ghoston and another pharmacy department employee who agreed to [be] bridesmaids in Jane Doe's wedding, abruptly dropped out of the wedding, without explanation after the dissemination of

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information regarding Jane Doe's HIV status.
19. On or about February 24, 2005, Plaintiff Jane Doe filed a health information privacy complaint against Walgreens with the United States Department of Human Services Office for Civil Rights (OCR), pursuant to the Health Information Portability and Accountability Act (HIPPA).
20. As a result of Defendants' exposure of Plaintiff's HIV status to Walgreens' employees and the public, Plaintiff Jane Doe, on or about September 2004, was forced to terminate her employment with Walgreens.
CAUSES OF ACTION COUNT 1 DISCLOSURE OF INFORMATION OF PATIENT AS PROHIBITED BY T.C.A. §63-10-412* * *++++
22. Defendants by their acts and omissions failed to protect the privacy and confidentiality of Plaintiff's HIV status and thus violated state law:
T.C.A. Section 63-2-101 Release of medical records
(2) Except for any statutorily required reporting to health or government authorities and exceptfor access by an interested third-party payer or their designees, for the purposes of utilization review, case management, peer reviews or other administrative functions, the name and address and other identifying information of a patient shall not be divulged. The name and address and other identifying information shall not be sold for any purpose. Any violation of this provision shall be an invasion of patient's right of privacy.
23. As a result of the violation of Plaintiff Jane Doe's right to privacy as alleged above, Plaintiffs have suffered extreme embarrassment and humiliation, great emotional distress, mental

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anguish, loss of income, and loss of enjoyment of life.
COUNT II DISCLOSURE OF INFORMATION OF TENN CARE PATIENT AS PROHIBITED BY T.C.A. §10-7-504 * * *25. Defendants by their acts and omissions failed to protect the privacy and confidentiality of Plaintiff's HIV status and thus violated the following state law:
T.C.A. Section 10-7-504-(a)(l). The medical records ofpatients in state, county, and municipal hospitals and medical facilities and the medical records of persons receiving medical treatment, in whole or in part, at the expense of the state, county or municipality, shall be treated as confidential and shall not be open for inspection by members of the public.
26. As a result of the violation of Plaintiff Jane Doe's right to privacy and confidentiality as alleged above, Plaintiffs have suffered extreme embarrassment and humiliation, great emotional distress, mental anguish, loss of income, and loss of enjoyment of life.
COUNT III GROSS NEGLIGENCE * * *28. Plaintiffs allege that Defendants acted with gross negligence and carelessness by failing to employ the degree of care, skill and attention, as required of a reasonable and prudent person under the same or similar circumstances.
29. As a result of Defendants gross negligence, Plaintiffs have suffered extreme embarrassment and humiliation, great emotional distress, mental anguish, loss of income, and loss of enjoyment of life.

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COUNT IV LOSS OF CONSORTIUM * * *31. As a proximate and direct result of Defendants' actions as alleged above, Plaintiffs have suffered a loss of consortium, affection, society, and enjoyment of life with each other in their marital relationship.
COUNT V INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS * * *33. The acts and omissions of Defendants alleged herein caused Plaintiffs to suffer grievous injury and were so outrageous in character and extreme in degree as to constitute tortious intentional infliction of emotional distress. As a result of Defendants' extreme and outrageous acts, Plaintiffs have suffered extreme embarrassment and humiliation, great emotional distress, mental anguish, loss of income, and loss of enjoyment of life.
COUNT VI INVASION OF PRIVACY AND INTRUSION UPON SECLUSION * * *35. Plaintiffs reasonably

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