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Doe v. Alexian Brothers Behavioral Health Hospital

Court of Appeals of Illinois, First District, Sixth Division

July 26, 2019

JANE DOE, Plaintiff-Appellant,

          Appeal from the Circuit Court of Cook County. No. 14 L 3610 Honorable Mary R. Minella, Judge Presiding.

          Attorneys for Appellant: Amanda M. Martin and Izabela Poznanski, of Law Offices of Parente & Norem, P.C., of Chicago, for appellant.

          Attorneys for Appellee: Joshua G. Vincent, Matthew P. Walsh II, James M. Hofert, Carson R. Griffis, and Lari A. Dierks, of Hinshaw & Culbertson LLP, of Chicago, for appellee.

          JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Connors concurred in the judgment and opinion.



         ¶ 1 The plaintiff-appellant, by the pseudonym Jane Doe (the plaintiff), filed the instant action against the defendant-appellee, Alexian Brothers Behavioral Health Hospital (the hospital) in the circuit court of Cook County. The plaintiffs complaint sought damages for alleged emotional injuries she suffered after a former employee of the hospital mailed the plaintiff a harassing letter. Following a jury verdict in favor of the plaintiff, the trial court determined that the verdict was inconsistent with the jury's answer to a special interrogatory. The trial court then entered judgment in favor of the hospital on the basis that the special interrogatory was controlling. The plaintiff now appeals, arguing that the special interrogatory should never have been submitted to the jury. For the following reasons, we reverse the judgment of the circuit court of Cook County and remand the case for a new trial.

         ¶ 2 BACKGROUND

         ¶ 3 The hospital is a health care provider that operates an outpatient psychiatric clinic in Hoffman Estates, Illinois. The plaintiff received treatment from the hospital over the course of several years for her mental health issues, mainly related to sexual abuse that she suffered as a child.

         ¶ 4 Michelle Morrison, [1] the hospital's former employee who sent the letter in question to the plaintiff, was a senior account representative in the hospital's billing department from 2005 to 2010. Morrison worked directly with various insurance companies to resolve patient billing issues related to treatment received by patients of the hospital. Morrison's duties included requesting copies of patients' mental health records, as required by insurers, in order to provide the insurance companies with information needed regarding treatment rendered to their insureds. This information was used to obtain payment. On July 28, 2010, the hospital discovered that Morrison was using the hospital's computer system for personal Internet searches unrelated to her work. As a result of this, the hospital terminated her employment.

         ¶ 5 Four months after Morrison's termination, Chris Novak, who was then the hospital's practice administrator, received an anonymous letter containing only the word "liar." The word's individual letters had been cut from magazines and pasted onto stationery bearing the hospital's letterhead. Novak brought the letter to the attention of the hospital's risk manager, who recommended filing a police report, which Novak did.

         ¶ 6 Over the next year and a half, several of the hospital's patients received disturbing, anonymous letters, always on stationery bearing the hospital's letterhead. The letters referenced private information from the patients' mental health records retained by the hospital. The letters were of a vile and shocking personal nature.

         ¶ 7 The plaintiff was the fourth known patient to receive one of these anonymous, shocking letters. The letter sent to the plaintiff made disturbing references to the sexual abuse that she had suffered as a child, as well as to her mental health issues and treatments.

         ¶ 8 After each patient received an anonymous letter, they notified the hospital, which in turn notified the police. Eventually, the police determined that Morrison was the author of all the anonymous letters and arrested her. Morrison was eventually convicted of three counts of felony forgery. Morrison later testified via deposition regarding her activity while she was employed by the hospital. Among other things, she claimed to have taken 50 patient records home while she was employed by the hospital.

         ¶ 9 The plaintiff subsequently filed the complaint in the instant action. The plaintiffs complaint was originally filed against both the hospital and Morrison. However, the plaintiff dismissed Morrison as a party and filed an amended complaint against only the hospital. The amended complaint alleged five claims against the hospital: (1) institutional negligence, (2) willful and wanton institutional conduct, (3) negligent supervision, (4) negligent infliction of emotional distress, and (5) violation of the Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/1 et seq. (West 2014)). The plaintiffs complaint averred: "The outrageous content of [Morrison's letter] has severely and adversely impacted the health and well-being of [the plaintiff], directly and proximately causing her to suffer extreme emotional and psychological trauma, and severely aggravating her mental health conditions, requiring extensive further mental health treatment."

         ¶ 10 The hospital denied the material allegations of the plaintiffs complaint and pleaded sole proximate cause as an affirmative defense based on the "criminal conduct" of Morrison. The hospital also filed a counter-claim for contribution against Morrison and sought apportionment of fault between itself and Morrison, pursuant to section 2-1117 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1117 (West 2014)), thus making Morrison a third-party defendant in the lawsuit.

         ¶ 11 A jury trial commenced. The plaintiff argued that the hospital allowed Morrison to request and obtain patient records that were more than the "minimum necessary" to complete her tasks related to billing, in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (Pub. L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 29 U.S.C. and 42 U.S.C.)). See 45 C.F.R. § 164.502(b) (2014) ("[w]hen using or *** when requesting protected health information ***, a covered entity or business associate must make reasonable efforts to limit protected health information to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request"). The plaintiff argued that the hospital failed to properly monitor the amount of records Morrison requested, failed to supervise her use of the records, and failed to properly train her.

         ¶ 12 The hospital's defense theory was that Morrison was the sole proximate cause of the plaintiffs injuries based on her rogue behavior and criminal conduct. The hospital presented several witnesses, including Morrison's former supervisor and the hospital's administrative expert, who all testified that Morrison completed the hospital's privacy and confidentiality training, completed 72 separate HIPAA continuing education modules during her employment, and signed the hospital's confidentiality statement.

         ¶ 13 Morrison initially testified[2] in her deposition that her supervisor allowed her to take some of the patients' medical records home in order to practice medical coding. Morrison later stated in her deposition that although her supervisor gave her permission to use the medical records to practice coding, she was not sure that her supervisor gave her specific permission to take the records home. Morrison's supervisor testified at trial that she never gave Morrison permission to take any medical records home.

         ¶ 14 During the jury instruction conference, the court asked the plaintiffs counsel whether the plaintiff was attributing Morrison's negligence to the hospital. Plaintiffs counsel responded: "We're alleging that it's really the hospital's failure to supervise, failure to train, and we're really not focusing on [Morrison's] actions." The plaintiffs counsel also agreed that it was ...

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