Judgment as a Matter of Law, Respondeat Superior, Ratification, Negligent/Wanton Training, Supervision and Retention


QHG of Enterprise, Inc., d/b/a Medical Center Enterprise v. Pertuit, [Ms. 1181072, Sept. 25, 2020] ___ So. 3d ___ (Ala. 2020). The Court (Bryan, J.; Parker, C.J., and Bolin, Shaw, Wise, Sellers, Mendheim, and Stewart, JJ., concur; Mitchell, J., recuses) reverses an order of the Coffee Circuit Court denying a motion for a judgment as a matter of law and renders a judgment in favor of defendant/appellant QHG of Enterprise, Inc. d/b/a Medical Center Enterprise (“QHG”) upon concluding that plaintiff failed to present substantial evidence supporting her claims that QHG was liable for the actions of a hospitalist, Dr. Diefenderfer, who had used a hospital computer to access the plaintiff’s records contained within the Alabama Prescription Drug Monitoring Program as established by § 20-2-210, et seq., Ala. Code 1975 and shared the information obtained from that database with a former patient who subsequently used the information in a legal proceeding against her former spouse concerning visitation with a minor child.

The former patient/spouse allegedly published the prescription drug information in a petition seeking a modification of the child’s visitation schedule. The person against whom the allegations were made about misusing prescription drugs refuted those allegations and the trial judge left the visitation schedule unchanged. Thereafter, the person whose prescription information had been publicly revealed submitted reports alleging invasion of her privacy to the Enterprise Police Department, the United States Department of Health and Human Services, the Alabama Board of Medical Examiners, and the Alabama Bar Association. Indictments were presented by the Coffee County Grand Jury against the former spouse and hospitalist charging each with violation of § 20-2-216 (unauthorized disclosure of information contained in the controlled substances prescription database shall be guilty of a Class A Misdemeanor and unauthorized access to information contained in the database shall be guilty of a Class C Felony). She also filed suit against QHG alleging that the hospitalist’s actions in accessing the database through the hospital’s computer system rendered the hospital liable under the common law theories of respondeat superior, ratification and negligent/wanton training, supervision and retention.

Following a jury trial, the Coffee Circuit Court entered judgment in favor of the victim in the amount of $5,000.00 compensatory damages and $295,000.00 in punitive damages. The circuit court denied QHG’s motion for judgment as a matter of law. On appeal, the Court reverses the judgment and renders a judgment for QHG upon finding that the victim failed to present substantial evidence supporting any of her theories of liability.

As to plaintiff’s respondeat superior theory, the Court (Ms. **19-28) concludes no evidence was presented indicating that QHG employed the hospitalist “to assist or advise third parties in making a determination regarding whether they should permit their children to attend court-ordered visitation with a former spouse or to seek a modification of a former spouses court-ordered visitation.” Ms. *27. The Court therefore characterizes the hospitalist’s decision to collect and disclose the personal medical information as a “marked and unusual deviation” from QHG’s business which were undertaken for personal reasons outside the scope of her employment. Ms. *28.

As to plaintiff’s ratification theory, the Court cites (Ms. **28-36) East Alabama Behavioral Medicine, P.C. v. Chancey, 883 So. 2d 162 (Ala. 2003) for the principle that “[a]n employer cannot be said to have ratified an employee’s conduct when the employer, upon learning of an employee’s conduct, which was not in the scope of the employee’s employment, gives instructions calculated to prevent a recurrence.” Ms. *29, quoting Chancey, 883 So. 2d at 169-70. Here, QHG presented evidence that upon learning of the hospitalist’s access to the database, hospital personnel met with the hospitalist and counseled her with respect to the importance of patient privacy and compliance with the requirements of HIPAA. Because there was no recurrence, “[a]n employer cannot be said to have ratified an employee’s conduct when, after instruction by the employer, the employee’s conduct stops.” Ms. *35, citing Chancey, 883 So. 2d at 170.

With respect to plaintiff’s theories of negligent/wanton training, supervision and retention, the record revealed no evidence of notice or knowledge (either actual or presumed) of the hospitalist’s unfitness or that had QHG exercised due and proper diligence, it would have learned that which would charge it with such knowledge. The Court concludes (Ms. **37-39) the evidence was insufficient to meet the test of Armstrong Business Services, Inc. v. AmSouth Bank, 817 So. 2d 665, 682 (Ala. 2001) for negligent/wanton supervision or training.

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