                                                                          FILED
                                                                    May 26 2020, 8:41 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Sherry A. Fabina-Abney                                     William N. Riley
Jenny R. Buchheit                                          Anne Medlin Lowe
Stephen E. Reynolds                                        Riley Williams & Piatt, LLC
Sean T. Dewey                                              Indianapolis, Indiana
Ice Miller LLP
                                                           ATTORNEYS FOR AMICUS
Indianapolis, Indiana
                                                           CURIAE
                                                           A. Richard M. Blaiklock
                                                           Wade D. Fulford
                                                           Lewis Wagner, LLP
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Community Health Network,                                  May 26, 2020
Inc.,                                                      Court of Appeals Case No.
Appellant,                                                 19A-CT-873
                                                           Appeal from the Marion Superior
        v.                                                 Court
                                                           The Honorable Cynthia J. Ayers,
Heather McKenzie and Daniel                                Judge
McKenzie, individually and as                              Trial Court Cause No.
parents and natural guardians of                           49D04-1401-CT-433
J.M. and O.M., John McKenzie,
Deborah West, Michael West,
and Katrina Gray,
Appellees.




Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020                              Page 1 of 33
      Pyle, Judge.


                                        Statement of the Case

[1]   Plaintiffs-Appellees, Heather McKenzie (“Heather”), Daniel McKenzie

      (“Daniel”), John McKenzie (“John”), Deborah West (“Deborah”), Michael

      West (“Michael”), J.M. (“J.M.”), and O.M. (“O.M.”) (collectively,

      “Appellees”) filed their complaint against Defendant-Appellant Community

      Health Network, Inc (“Community”) and Defendant Katrina Gray (“Katrina”)

      in January 2014 and amended their complaint in July 2015. The complaint

      arose following Katrina’s unauthorized access of Appellees’ private health

      information while she was an employee of Community. Appellees brought

      claims for vicarious liability under the doctrine of respondeat superior and

      negligent training, supervision, and retention against Community and

      negligence and invasion of privacy/intrusion against Katrina.


[2]   This interlocutory appeal comes before us pursuant to the trial court’s denial of

      Community’s Trial Rule 12(B)(1) motion to dismiss Appellees’ complaint and

      motion for summary judgment. Community contends that: (1) the trial court

      erred by denying its motion to dismiss Appellees’ complaint for a lack of subject

      matter jurisdiction, asserting that their claims fall within the purview of the

      Medical Malpractice Act (the “MMA”) and that the Appellees failed to comply

      with the procedural prerequisites of the MMA; and (2) the trial court erred by

      denying summary judgment on Appellees’ claims of respondeat superior and

      negligent training, supervision, and retention. Community also argues that

      Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020            Page 2 of 33
      even if Katrina’s actions were within the scope of her employment, it cannot be

      held vicariously liable under respondeat superior for Katrina’s actions because

      Appellees’ underlying negligence and invasion of privacy/intrusion claims

      against Katrina are not actionable under Indiana law.


[3]   We conclude that Appellees’ claims do not fall within the purview of the MMA

      and that the trial court properly denied Community’s motion to dismiss.

      Additionally, on the claims involving respondeat superior, negligent training,

      supervision, and retention, and negligence, there are genuine issues of material

      fact precluding summary judgment in Community’s favor. However, to the

      extent that Appellees’ respondeat superior claim is based on an underlying act

      of invasion of privacy/intrusion by Katrina, we conclude that Community is

      entitled to judgment as a matter of law, in part, on the respondeat superior

      claim. Therefore, the judgment of the trial court is affirmed in part, reversed in

      part, and remanded with instructions


[4]   We affirm in part, reverse in part, and remand with instructions.


                                                      Issues

              1. Whether the trial court erroneously denied Community’s motion to
              dismiss.

              2. Whether the trial court erroneously denied Community’s motion for
              summary judgment.

                                                      Facts



      Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020          Page 3 of 33
[5]   Heather and Katrina worked together at the Indiana Orthopedic Center

      (“IOC”) from January 2005 until September 2010. Katrina had been employed

      as a medical records coordinator at the IOC since 1999 and was Heather’s

      direct supervisor between 2005 and 2010. Katrina’s title at the IOC was

      “Health Information Management Coordinator.” (App. Vol. VIII at 26). In

      this capacity, Katrina was responsible for “scheduling appointments and

      releasing medical records for [the IOC].” (App. Vol. VIII at 26).


[6]   At some point, Katrina introduced Heather to her stepson, Kevin Gray

      (“Kevin”). In 2006, Heather began dating Kevin, and the two married in 2007.

      Heather and Kevin had two children, J.M. and O.M. Heather and Kevin

      eventually divorced in 2010. Heather received full custody of J.M. and O.M.

      In 2011, Heather married Daniel, and he adopted J.M. and O.M. A family

      feud between the Gray family and Appellees ensued.


[7]   In 2012, Community acquired the IOC through an asset purchase. Community

      hired and trained Katrina as a medical records coordinator. As a condition of

      her employment with Community, Katrina was required to attend orientation

      and complete mandatory e-training on patient confidentiality and the Health

      Insurance Portability and Accountability Act of 1996 (“HIPPA”).


[8]   In June 2012, after successfully completing orientation and e-training, Katrina

      was provided access to Epic, an electronic medical records system. When using

      Epic, Katrina was authorized to schedule appointments and release records of




      Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020        Page 4 of 33
       the patients only within the IOC. Katrina was strictly prohibited from

       accessing any patient record without a business need or for personal reasons.


[9]    In September 2013, Community received an internal employee complaint via its

       anonymous hotline, which served as an internal and external avenue to report

       any compliance issues involving Community’s employees. The complaint

       alleged that Katrina had accessed her personal chart, which, if true, violated

       Community’s policies and employee conduct rules. As a result, Community

       investigated Katrina’s access and determined that she had accessed her own

       chart, as well as the confidential health records of multiple other patients–

       including Appellees–at various times between January and September 2013.

       For each unauthorized access, Katrina had used a Community computer

       system to look up private health information of Community’s patients. She did

       so while she was on the job using equipment, software, and credentials

       provided to her by Community. Following Community’s investigation,

       Community placed Katrina on administrative leave and eventually terminated

       her employment.


[10]   While Appellees received medical treatment at and were patients of

       Community, they had not received care or services at the IOC. In early

       November 2013, Appellees received notice from Community that their health

       information records had been compromised. The letters explained that

       Community had “learned that an employee [had] accessed” the Appellees’

       “medical record[s] without a business need[,]” and listed the specific dates the



       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020           Page 5 of 33
       breaches had occurred. (App. Vol. VIII at 2-5). Appellees later learned that

       Katrina was the employee who had improperly accessed their medical records.


[11]   In January 2014, Appellees filed suit against Community based on Katrina’s

       unauthorized access of their medical records. This complaint named

       Community as the sole defendant and alleged two counts: (1) respondeat

       superior; and (2) negligent training, supervision, and retention. In July 2015,

       Appellees filed an amended complaint adding Katrina as a defendant. The

       amended complaint enumerated four counts: (1) respondeat superior against

       Community; (2) negligent training, supervision, and retention against

       Community; (3) negligence against Katrina; and (4) invasion of

       privacy/intrusion against Katrina. In regard to their respondeat superior claim

       against Community in count one, Appellees alleged that Community owed

       them a non-delegable duty to protect the privacy and confidentiality of their

       medical records. They further alleged that because Katrina had accessed their

       records in the course and scope of her employment with Community,

       Community was vicariously liable for Katrina’s unauthorized acts and that as a

       proximate result of this breach, Appellees had suffered damages. As for the

       negligent training, supervision, and retention claim in count two, Appellees

       alleged that Community had: (1) breached its duty to train and instruct Katrina

       in the protection of confidential medical records; (2) failed to supervise Katrina

       in the protection of medical records and their confidentiality; (3) failed to

       employ methods and/or take appropriate steps to learn of an employee’s misuse




       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020            Page 6 of 33
       and abuse of authority; and (4) failed to implement appropriate measures for

       the protection of its patients’ health information records.


[12]   In September 2015, Community filed its amended answer. In January 2018,

       Community filed a motion to dismiss counts one and two of the amended

       complaint pursuant to Trial Rule 12(B)(1), alleging that the trial court lacked

       subject matter jurisdiction. Specifically, Community argued that Appellees’

       claims directly related to the provision of healthcare within the MMA and that

       Appellees had failed to exhaust their administrative remedies because they had

       not filed a complaint with the Indiana Department of Insurance (“IDOI”) and

       had not obtained a medical panel decision.


[13]   Contemporaneously, and alternatively, Community filed a motion for summary

       judgment requesting that the court enter judgment in its favor as to counts one

       and two of the amended complaint. Specifically, Community argued that: (1)

       it was not vicariously liable for Katrina’s misconduct; (2) it owed no actionable

       duty to Appellees; and (3) Appellees were not sufficiently damaged by the

       personal health information breach. Community also argued that even if

       Katrina acted within the scope of her employment, it could not be held

       vicariously liable because Appellees’ underlying negligence and invasion of

       privacy/intrusion claims against Katrina are not actionable under Indiana law. 1




       1
        Katrina has not sought summary judgment on the negligence or invasion of privacy/intrusion claims
       against her.

       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020                              Page 7 of 33
[14]   In support of its motion for summary judgment, Community designated in

       relevant part: (1) depositions from Deborah, Michael, Heather, Daniel, John;

       (2) an affidavit with exhibits from a Senior Project Manager at Community

       explaining the conditions of Katrina’s employment, including attending

       orientation, reviewing Community’s policies and procedures, and completing

       mandatory e-training on patient confidentiality and HIPAA; (3) an affidavit

       with exhibits from Community’s Vice President of Compliance explaining its

       policies, training materials, and mechanisms for monitoring access to medical

       records; and (4) interrogatories from Katrina, Heather, Michael, Deborah,

       John, and Daniel.


[15]   Appellees responded by designating several depositions, exhibits, and affidavits

       in support of their argument that genuine issues of material fact precluded

       summary judgment. One such exhibit was an affidavit with a report by their

       retained expert, Dr. Kayur V. Patel (“Dr. Patel”), discussing Community’s

       “policies and procedures safeguarding . . . electronically-stored private health

       information.” (App. Vol. IV at 91). In his report, Dr. Patel stated that he was

       “asked to evaluate whether or not, as a facility, Community Health had

       implemented and acted under HIPAA . . . Breach Notification Rule, modified

       September 23, 2013 and American Medical Association Guidelines and

       whether or not its employee adhered to follow it, safeguarding the privacy and

       security of PHI (Protected Health Information).” (App. Vol. IV at 93).


[16]   In September 2018, the trial court heard argument on Community’s motion to

       dismiss and motion for summary judgment. The trial court also heard

       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020          Page 8 of 33
argument on a motion to intervene that had been filed by Stephen Robertson,

Commissioner of the IDOI, as Administrator of the Indiana Patient’s

Compensation Fund (“PCF”). At the end of the hearing, the trial court ordered

that the parties submit proposed findings of fact and conclusions of law. In

November 2018, the trial court denied all three motions in its findings of fact

and conclusions of law. When denying Community’s motion to dismiss, the

trial court concluded in relevant part:


        The conduct in this case was possible as part of the regular
        business functions of [Katrina] and therefore falls outside the
        [MMA]. [Katrina] was a clerical employee of Community. The
        [Appellees] were not patients of the practice at which [Katrina]
        worked and the misconduct alleged by the [Appellees] did not
        involve providing medical treatment to them.

                                                  ***


        The [Appellees] allege that Community breached it[s] duty to
        secure and maintain health information by its failure to adopt or
        enforce a variety of mechanisms, policies, or procedures that
        govern handling of medical records. Such policies and procedures
        are indirectly related to patient care in that the records are a
        confidential repository for medical events and diagnoses that have
        occurred or may occur in the future. The accumulation and
        review of patient records plays an important part in how a
        physician may make a medical decision, however, handling the
        records themselves are not treatment of the patient by medical
        professional.

                                                  ***


        Therefore, this [c]ourt has subject matter jurisdiction over the case
        before the bench and over the claims that Community Health
        Network and Katrina Gray mishandled confidential information.
        Community’s 12(B)(1) [m]otion to [d]ismiss is hereby denied.


Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020            Page 9 of 33
       (App. Vol. II at 26-28).


[17]   When denying Community’s motion for summary judgment on counts one and

       two, the trial court concluded in relevant part:


               [Katrina’s] access to patient medical records was incidental to
               authorized conduct. Without information on what exactly
               [Katrina] did or intended to do with the data she viewed, leaves
               open questions of fact for the jury.

                                                         ***


               [Katrina] stated, in her response to the allegations that, “I did not
               have a clear understanding of the scope of my authority in this
               area until the subject incident.” Thus, a question of fact as to
               whether and to what extent [Katrina] understood or acknowledged
               Community’s privacy policies remains for trial. Therefore,
               summary judgment is not appropriate on the question of whether
               Community is vicariously liable for the breaches of its former
               employee, [Katrina].

               On the question of duty of Community to the owners of breached
               records, Community argued that it and [Katrina] have no duty to
               the [Appellees] to keep their medical records private. However,
               both state and federal law outline the duty of health care providers
               to protect the confidentiality of the patients’ health and medical
               records. Also, Community produced documents recognizing its
               ‘legal and ethical’ duty to its patients to keep their medical records
               confidential. Further, a party responsible for gathering and storing
               individuals’ private health information has a duty to keep
               confidential that information. Rocca v. [Southern] Hills Counselling
               Ctr., Inc., 671 N.E.2d 913, 916 (Ind. Ct. App. 1996). Under these
               facts and circumstances, the Court denies Community’s motion
               for summary judgment as to whether it and Gray owe a duty to
               the [Appellees].

                                                         ***


               The designated evidence supports an inference that [Katrina’s]
               violations of the [Appellees’] privacy rights were allowed as part of
       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020            Page 10 of 33
        the general daily access that [Katrina] had to patient medical
        records. [Katrina] looked at her own medical records and the
        records of other patients, in addition to the [Appellees] records
        during an eight-month period. Whether Community breached its
        duty to protect the confidentiality of those records from [Katrina]
        (as in limiting access to patient records to those inside her
        department only) whatever her personal reasons for viewing the
        records may have been, is a question of fact. In sum, although the
        breach is admitted and training of [Katrina] may have been
        adequate and appropriate, questions of fact remain as to whether
        Community failed to take appropriate steps to implement
        measures to learn of an employee’s misuse or abuse of authority
        and whether Community failed to narrow [Katrina’s] access to
        prevent the spread of confidential medical information to
        unauthorized sources.

                                                  ***


        [Katrina] asserted, when confronted with these unauthorized
        access allegations that, despite the policies of and/or training by
        Community, she did not “have a clear understanding of the scope
        of [her] authority in this area until the subject incident.”
        Therefore, whether Defendants breached their duty to the
        [Appellees] is a question for the fact finder. Summary judgment
        on the issue of breach of duty is denied.

        Here, each [of the Appellees] designated evidence supporting an
        inference that he or she has suffered emotional distress due to the
        breach. The weight assigned to this evidence, and a determination
        of the existence and extent of the damages to the [Appellees], is a
        question for the jury, Am. Family Mut. Ins. Co. v. Matusiak, 878
        N.E.2d 529, 533 (Ind. Ct. App. 2007). Community’s motion for
        summary judgment on the [Appellees’] damages is denied.

                                                  ***


        [Appellees] designated evidence supporting an inference that
        [Katrina] did or may have publicly disclosed facts about the
        [Appellees’] private lives to social acquaintances and her co-
        workers, creating a question of fact as to whether and to what
        extent these disclosures occurred. Therefore, Community’s

Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020          Page 11 of 33
               motion for summary judgment on the [Appellees’] invasion of
               privacy claim is denied.

       (App. Vol. II at 30-36).


[18]   Thereafter, Community filed a motion to certify the trial court’s ruling for an

       interlocutory appeal. The trial court certified its order, and Community filed a

       motion for permission to file an interlocutory appeal, which we granted.

       Community now appeals.2


                                                     Decision

[19]   On appeal, Community argues that the trial court erred by: (1) denying its

       motion to dismiss Appellees’ complaint; and (2) denying its motion for

       summary judgment on counts one and two of Appellees’ amended complaint.

       We will address each of these arguments in turn.


       1. Motion to Dismiss


[20]   Community first argues that the trial court erred by denying its motion to

       dismiss pursuant to Trial Rule 12(B)(1) for lack of subject matter jurisdiction.

       Community contends that Appellees’ claims fall squarely within the purview of

       the MMA and that Appellees failed to comply with the MMA when they did




       2
        Community requested oral argument in this matter. In a separate issued order, we deny Community’s oral
       argument motion.

       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020                            Page 12 of 33
       not submit a proposed complaint with the IDOI and did not obtain an opinion

       from a medical review panel before filing their complaint with the trial court.


[21]   Trial Rule 12(B)(1) addresses the “[l]ack of jurisdiction over the subject matter.”

       In reviewing a motion to dismiss for lack of subject matter jurisdiction pursuant

       to Trial Rule 12(B)(1), the relevant question is whether the type of claim

       presented falls within the general scope of the authority conferred upon the

       court by constitution or statute. Metz as Next Friend of Metz v. Saint Joseph Reg’l

       Med. Center-Plymouth Campus, Inc., 115 N.E.3d 489, 493 (Ind. Ct. App. 2018).

       A motion to dismiss for lack of subject matter jurisdiction presents a threshold

       question with respect to a court’s power to act. Id. Our standard of review for a

       trial court’s grant or denial of such motion “is a function of what occurred in

       the trial court.” Id. (internal citation and quotation omitted). “Where the facts

       before the trial court are not in dispute, the question of subject matter

       jurisdiction is one of law, and we review the trial court’s ruling de novo.” Muir

       Woods Section One Association, Inc. v. Fuentes, 136 N.E.3d 647, 651 (Ind. Ct. App.

       2019).


[22]   The MMA dictates the statutory procedures for medical malpractice actions.

       See I.C. § 34-18-1-1 et seq. The MMA defines “malpractice” as “a tort or

       breach of contract based on health care or professional services that were provided, or

       that should have been provided, by a health care provider, to a patient.” I.C. §

       34-18-2-18 (emphasis added). The fact that Community is a health care

       provider is undisputed. The MMA defines “tort” as a “legal wrong, breach of

       duty, or negligent or unlawful act or omission proximately causing injury or

       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020               Page 13 of 33
       damage to another.” I.C. § 34-18-2-28. The MMA defines “health care” as “an

       act, or treatment performed or furnished, or that should have been performed or

       furnished, by a health care provider for, to, or on behalf of a patient during the

       patient’s medical care, treatment, or confinement.” I.C. § 34-18-2-13. Despite

       the MMA’s comprehensiveness, the phrase, “professional services,” is

       undefined.


[23]   The MMA is not all-inclusive for claims against health care providers, nor is it

       intended to be extended to cases of ordinary negligence. Peters v. Cummins

       Mental Health, Inc., 790 N.E.2d 572, 576 (Ind. Ct. App. 2003), trans. denied.

       Rather, the MMA was designed to curtail, not expand, liability for medical

       malpractice. Chamberlain v. Walpole, 882 N.E.2d 959, 963 (Ind. 2005). As such,

       the MMA is in derogation of common law and should be narrowly construed.

       Patel v. Barker, 742 N.E.2d 28, 31 (Ind. Ct. App. 2001), reh’g denied, trans. denied.

       When the General Assembly enacts a statute in derogation of the common law,

       courts presume that the General Assembly is aware of the common law and

       that the General Assembly does not intend to make any change beyond what is

       declared in express terms or by unmistakable implication. Weldon v. Universal

       Reagents, Inc., 714 N.E.2d 1104, 1107-08 (Ind. Ct. App. 1999).


[24]   Indiana courts have developed an analytical framework to determine whether

       the MMA applies to a certain claim. The courts look to the substance of a

       claim, not the manner in which the conduct is framed in a pleading by the

       claimant. G.F. v. St. Catherine Hosp., Inc., 124 N.E.3d 76, 85 (Ind. Ct. App.

       2019), trans. denied. Claims that boil down to a “question of whether a given

       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020           Page 14 of 33
       course of treatment was medically proper and within the appropriate standard

       are the quintessence of a malpractice case.” Howard Reg’l Health Sys. v. Gordon,

       952 N.E.2d 182, 185 (Ind. 2011) (internal quotation omitted). Thus, to fall

       within the purview of the MMA, a provider’s conduct must be undertaken in

       the interest of, or for the benefit of, the patient’s health. Id. Put differently, the

       conduct must be “curative or salutary conduct of a health care provider acting

       within his or her professional capacity.” Murphy v. Motrell, 684 N.E.2d 1185,

       1188 (Ind. Ct. App. 1997), trans. denied. Conversely, the MMA does not apply

       to conduct “demonstrably unrelated to the promotion of the plaintiff’s health or

       an exercise of the provider’s professional expertise, skill, or judgment.” Gordon,

       952 N.E.2d at 186.


[25]   Given the limiting language of the MMA, not every negligent act or omission

       by a health care provider constitutes medical malpractice. G.F., 124 N.E.3d at

       85. Indeed, the MMA applies to “a variety [of] claims that do not look like

       traditional medical malpractice.” Terry v. Cmty. Health Network, Inc., 17 N.E.3d

       389, 393 (Ind. Ct. App. 2014) (citations omitted). We have also explained that:


               A case sounds in ordinary negligence [rather than medical
               negligence] where the factual issues are capable of resolution by a
               jury without application of the standard of care prevalent in the
               local medical community. By contrast, a claim falls under the
               [MMA] where there is a causal connection between the conduct
               complained of and the nature of the patient-health care provider
               relationship.

       Metz, 115 N.E.3d at 495 (quoting Terry, 17 N.E.3d at 393) (internal citations

       omitted).


       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020             Page 15 of 33
[26]   Community argues that the trial court erred when it concluded that Appellees’

       claims do not fall within the purview of the MMA. Specifically, Community

       urges that its “maintenance of medical records, as well as its determination and

       utilization of the appropriate mechanisms, training protocols, and procedures

       for logging, auditing, monitoring, detecting, or otherwise securing access to

       patient records, are professional services [it] offers in furtherance of its patient

       care.” (Community’s Br. 33-34). Therefore, Community argues, Appellees’

       claims “unequivocally fall[] within the purview of the MMA.” (Community’s

       Br. 33). In response, Appellees argue that “claims alleging the mishandling of a

       patient’s confidential information––even by a treating physician––are not

       governed by the Medical Malpractice Act.” (Appellees’ Br. 21). In this specific

       case, we agree with Appellees.


[27]   Community relies on Gordon for the proposition that the maintenance and

       preservation of medical records “is so closely entwined with health care” that

       the present claims are governed by the MMA. Gordon, 952 N.E.2d at 186.

       Gordon involved claims against a hospital and other defendants for medical

       malpractice and for a spoliation of evidence due to the hospital’s loss of a

       portion of the plaintiff’s past health records. Our supreme court first addressed

       the spoliation claim and determined that the maintenance of health records was

       within the purview of the MMA because the “skillful, accurate, and ongoing

       maintenance of test and treatment records bears strongly on subsequent

       treatment and diagnosis of patients.” Id. at 186. The Gordon Court continued

       its analysis and concluded that the statute on the maintenance of health records


       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020             Page 16 of 33
       does not create a separate cause of action for negligent loss of the medical

       records from the MMA. The Court also determined that the plaintiffs

       presented a claim for first-party spoliation, not third-party spoliation. The

       Court held that the spoliation claim against the hospital was a prohibited first-

       party spoliation claim. Taken together, the Gordon Court held that the hospital

       was entitled to summary judgment on the count alleging spoliation of evidence.


[28]   Contrary to Community’s assertions, we do not find Gordon persuasive here

       because its holding on the maintenance of records is not applicable to this case.

       Gordon dealt with the “skillful, accurate, and ongoing” maintenance of a

       patient’s health records by “physicians and other health care providers” so that

       the health care providers can have access to relevant information for the

       treatment of their patients. Id. at 186. The underlying claims against the

       hospital and one of its physicians were for medical malpractice and,

       importantly, spoliation, claiming that the hospital lost health records that were

       vital to the medical malpractice claim. Here, the underlying claims against

       Community are for respondeat superior and negligent training, supervision, and

       retention. Appellees do not allege that records were lost, nor do they claim that

       Katrina provided them medically improper treatment; rather, their claims

       against Community arise from Katrina’s access of their confidential health

       information records. As such, the MMA does not apply to Appellees’ claims

       because the conduct at issue is “demonstrably unrelated to the promotion of the

       plaintiff’s health or an exercise of the provider’s professional expertise, skill, or

       judgment.” Id. at 186.


       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020             Page 17 of 33
[29]   Additionally, we find this Court’s recent decision in G.F. to be more instructive.

       In that case, we addressed “[w]hether the MMA applies to claims involving

       negligent dissemination of protected health information.” G.F., 124 N.E.3d at

       80. In G.F., the physician disclosed the patient’s confidential health

       information to a third-party visitor who was present in the plaintiff’s hospital

       room. The patient brought an action against his treating physician, hospital,

       and the Indiana Patient’s Compensation Fund, seeking declaration that his

       claims against the physician and hospital did not fall within the purview of the

       MMA. The plaintiff then moved for summary judgment on his declaratory

       judgment claims. After the trial court permitted the physician and hospital to

       file a belated response, the court found that the patient’s claim was governed by

       the MMA and denied the summary judgment motion in its entirety.


[30]   On appeal, this Court accepted the patient’s argument that his claim was not

       within the boundaries of the MMA. The G.F. Court began its analysis by

       noting that the patient was not contending that his physician’s statement led to

       an inaccurate diagnosis, improper treatment, or bodily injury. Rather, he

       articulated his claim as whether the MMA applies to claims involving the

       violation of a patient’s medical confidentiality and negligent or intentional

       disclosure of protected health information. The G.F. Court explained that the

       test for resolving such a claim is “based on the provider’s behavior or practices

       while acting in his professional capacity as a provider of medical services.”

       G.F., 124 N.E.3d at 88 (internal quotation and citation omitted). This Court

       explained that the physician’s communication had the dual effect of providing


       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020          Page 18 of 33
       medical information to a patient while inadvertently disclosing confidential

       information to a third-party. Because it was the disclosure of confidential

       information and not the services provided by the physician that was the focus of

       the patient’s claim, this Court reasoned that at no point did the disclosure of

       such confidential information constitute health care treatment to the plaintiff,

       nor did the physician’s statements have a curative or salutary effect on the

       plaintiff. Therefore, the G.F. Court held that the plaintiff’s complaint, “as it

       pertain[ed] to the negligent or intentional disclosure of protected health

       information, [wa]s not subject to the limitations of the MMA.” Id.


[31]   As in G.F., Appellees’ complaint is not subject to the limitations of the MMA.

       Katrina worked for Community as a medical records coordinator and was

       responsible for “scheduling appointments and releasing medical records for [the

       IOC].” (App. Vol. VII at 26). Her position did not involve the provision of

       health care to Appellees. Furthermore, Appellees were not patients of the

       practice at which Katrina worked. It cannot be said that her conduct was in

       furtherance of providing health care or professional services to Appellees. See

       H.D. v. BHC Meadows Hosp., Inc., 884 N.E.2d 849, 856 (Ind. Ct. App. 2008)

       (holding that a claim based on a therapist’s decision to send a fax containing

       information about an adolescent patient’s mental health to the patient’s school

       was not a malpractice claim subject to the MMA), reh’g denied, trans. denied.


[32]   Accordingly, Appellees’ claims are not related to the promotion of their health

       and do not involve the use of professional expertise, skill, or judgment, as



       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020           Page 19 of 33
       contemplated by the MMA.3 Therefore, the trial court did not lack subject

       matter jurisdiction and did not err when it denied Community’s motion to

       dismiss.


       2. Summary Judgment


[33]   We now turn to Community’s contention that the trial court erred by denying

       its motion for summary judgment. Our standard of review in summary

       judgment appeals is as follows:


                We review summary judgment de novo, applying the same
                standard as the trial court: “Drawing all reasonable inferences in
                favor of . . . the non-moving parties, summary judgment is
                appropriate ‘if the designated evidentiary matter shows that there
                is no genuine issue as to any material fact and that the moving
                party is entitled to judgment as a matter of law.’” Williams v.
                Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
                fact is ‘material’ if its resolution would affect the outcome of the
                case, and an issue is ‘genuine’ if a trier of fact is required to resolve
                the parties’ differing accounts of the truth, or if the undisputed
                material facts support conflicting reasonable inferences.” Id.
                (internal citations omitted).

                The initial burden is on the summary-judgment movant to
                “demonstrate [ ] the absence of any genuine issue of fact as to a
                determinative issue,” at which point the burden shifts to the non-
                movant to “come forward with contrary evidence” showing an




       3
        In an attempt to further support its argument that Appellees’ claims fall under the MMA, Community also
       argues that the “substance of [Appellees’] claims against [it] require reference to the applicable standard of
       care, which is clearly outside the province of the jury.” (Community’s Br. 34-35). In support, Community
       emphasizes Appellees’ retention of a physician expert and his report regarding Community’s “policies and
       procedures safeguarding . . . electronically-stored private health information.” (App. Vol. IV at 91). We
       disagree with Community. The fact that Appellees retained an expert to explain Community’s maintenance
       of health information does not automatically bring Appellees’ claims within the purview of the MMA.

       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020                                  Page 20 of 33
               issue for the trier of fact. Id. at 761-62 (internal quotation marks
               and substitution omitted).

       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

       Hughley).


[34]   We emphasize that summary judgment is a “high bar” for the moving party to

       clear in Indiana. Id. at 1004. “In particular, while federal practice permits the

       moving party to merely show that the party carrying the burden of proof [at

       trial] lacks evidence on a necessary element, we impose a more onerous burden:

       to affirmatively ‘negate an opponent’s claim.’” Id. at 1003 (quoting Jarboe v.

       Landmark Comm. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994), reh’g

       denied). Further:


               Summary judgment is a desirable tool to allow the trial court to
               dispose of cases where only legal issues exist. But it is also a
               “blunt . . . instrument” by which the non-prevailing party is
               prevented from having his day in court. We have therefore
               cautioned that summary judgment is not a summary trial and the
               Court of Appeals has often rightly observed that it is not
               appropriate merely because the non-movant appears unlikely to
               prevail at trial. In essence, Indiana consciously errs on the side of
               letting marginal cases proceed to trial on the merits, rather than
               risk short-circuiting meritorious claims.

       Id. (citations and some quotations omitted; omissions original to Hughley).


[35]   Community asserts that it is entitled to judgment as a matter of law on

       Appellees’ claims against it for respondeat superior and negligent supervision,

       training, and retention. We address each claim in turn.




       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020            Page 21 of 33
[36]   As a preliminary matter, we note that Community asserts that the trial court

       erred by allowing both the respondeat superior and negligent supervision,

       training, and retention claims to proceed. Community argues that if “[Katrina]

       was acting in the scope of her employment, then the trial court should have

       summarily dismissed [the negligent supervision, training, and retention claim].

       Alternatively, if [Katrina] was not acting within the scope of her employment,

       [the respondeat superior claim] should have been summarily dismissed.”

       (Community’s Br. 38) (emphasis in original). While Appellees’ respondeat

       superior and negligent supervision, training and retention claims are alternative

       theories for holding an employer liable, our supreme court has held that unless

       an “employer admits that an employee was acting within the course and scope

       of his or her employment,” both claims may proceed. Sedam v. 2JR Pizza

       Enterprises, LLC, 84 N.E.3d 1174, 1179 (Ind. 2017). Here, Community has not

       made such an admission. Thus, we conclude that given the stage in litigation,

       the trial court did not err in allowing Appellees to proceed on both claims for

       respondeat superior and negligent supervision, training, and retention.


       A. Respondeat Superior


[37]   Community first argues that it is entitled to summary judgment on Appellees’

       claim alleging respondeat superior liability. The general rule is that vicarious

       liability can be imposed when an employer, who is not liable because of his

       own acts, is found responsible “for the wrongful acts of his employee which are

       committed within the scope of employment.” Sword v. NKC Hosps., Inc., 714

       N.E.2d 142, 148 (Ind. 1999) (quotation and citation omitted). “[C]onduct is

       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020           Page 22 of 33
       within the scope of employment when it is ‘of the same general nature as that

       authorized, or incidental to the conduct authorized.’” Walgreen Co. v. Hinchy,

       21 N.E.3d 99, 107 (Ind. Ct. App. 2014) (quoting Celebration Fireworks, Inc., v.

       Smith, 727 N.E.2d 450, 453 (Ind. 2000)), aff’d on reh’g, trans. denied.

       Furthermore, “an employee’s wrongful act may still fall within the scope of

       employment if [her] purpose was, to an appreciable extent, to further [her]

       employer’s business, even if the act was predominantly motivated by an

       intention to benefit the employee [herself].” Knighten v. E. Chi. Hous. Auth., 45

       N.E.3d 788, 792 (Ind. 2015) (citation omitted). On the other hand, “an

       employee’s act is not within the scope of employment when it occurs within an

       independent course of conduct not intended by the employee to serve any

       purpose of the employer.” Barnett v. Clark, 889 N.E.2d 281, 284 (Ind. 2008)

       (emphasis omitted) (quoting Restatement (Third) of Agency § 7.07(2) (Am.

       Law Inst. 2006)).


[38]   An employer is not held liable under the doctrine of respondeat superior

       because it did anything wrong, but “because of the [employer’s] relationship to

       the wrongdoer.” Sword, 714 N.E.2d at 147. “Ultimately, we have found that

       ‘the scope of employment encompasses the activities that the employer

       delegates to employees or authorizes employees to do, plus employees’ acts that

       naturally or predictably arise from those activities.’” Burton v. Benner, 140

       N.E.3d 848, 852 (Ind. 2020) (quoting Cox v. Evansville Police Dep’t, 107 N.E.3d

       453, 461 (Ind. 2018)). The scope of employment rule emanates from the

       concept of control. Cox, 107 N.E.3d at 461. More specifically, it springs from

       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020           Page 23 of 33
       the employer’s control over its employees and their employment activities: the

       employer controls whom it hires, what employment duties it assigns, how it

       empowers employees to carry out those duties, and how it guards against harm

       arising from employment activities. Id.


[39]   “[I]t is well established that whether an employee’s actions were within the

       scope of employment is a question of fact to be determined by the factfinder.”

       Knighten, 45 N.E.3d at 794 (quoting Walgreen, 21 N.E.3d at 107). Even if some

       of the actions were unauthorized, the question of whether the actions were

       within the scope of employment is for the jury. Konkle v. Henson, 672 N.E.2d

       450, 457 (Ind. Ct. App. 1996). Only if none of the employee’s act were

       authorized is the question a matter of law that need not be submitted to the trier

       of fact. City of Fort Wayne v. Moore, 706 N.E.2d 604, 607 (Ind. Ct. App. 1999),

       trans. denied.


[40]   Here, this case involves a question of fact regarding whether Katrina’s actions

       were within the scope of her employment with Community. Community

       argues that “[b]ecause [Katrina] did not have a business need to access

       [Appellees’] records, and because she did so for solely personal reasons,

       Community cannot be held vicariously liable for her conduct[]” under

       respondeat superior. (Community’s Br. 42).


[41]   In support of its argument that Katrina was acting outside the scope of her

       employment, Community directs our attention to Robbins v. Trs. of Ind. Univ., 45

       N.E.3d 1 (Ind. Ct. App. 2015).


       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020         Page 24 of 33
[42]   In Robbins, this Court affirmed summary judgment in favor of a university

       hospital and a data security company on the issue of vicarious liability. A

       nurse, who was an employee of the university hospital, was generally

       authorized to access medical records as part of her employment. Despite

       signing a confidentiality agreement, the nurse accessed and then posted a

       patient’s medical information on the internet. The nurse then pled guilty in

       federal court to the felony charge of wrongful disclosure of individually

       identifiable information. Thereafter, the patient filed a complaint against the

       university hospital and data security company wherein she alleged that the

       defendants were vicariously liable for the actions of the nurse. The university

       hospital and data security company filed summary judgment motions. As part

       of its designated evidence, the university hospital designated an affidavit by the

       nurse in support of its motion. In the affidavit, the nurse admitted that she

       accessed the patient’s information solely for personal reasons and that she was

       acting on her own initiative and not within the scope of her employment. The

       affidavit further explained that the nurse was not involved in any way in the

       provision of medical care and that she knew that it was against her employer’s

       policies and rules.


[43]   In addressing the vicarious liability claim, this Court found that although the

       nurse was authorized to access patient information, the existence of the

       confidentiality agreement meant that the nurse was “expressly not authorized to

       access, use, or disclose the information for personal, unauthorized, unethical, or

       illegal reasons.” Id. at 10 (emphasis in original). This Court continued its


       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020         Page 25 of 33
       analysis by emphasizing that the nurse’s affidavit, which was designated by the

       university hospital, stated that she had accessed the patient’s medical records on

       “her own initiative and unrelated to any business function of her employment

       or her employer[.]” Id. In holding that the nurse’s actions were outside the

       scope of her employment, the Robbins Court also noted that the nurse had pled

       guilty in federal court as a result of her wrongful act, and that the patient had

       never been treated in the nurse’s department. Here, Community did not

       designate an affidavit detailing such an admission by Katrina. Furthermore,

       Katrina did not plead guilty in federal court as a result of her action. Thus,

       Community’s reliance is misplaced because Robbins involved designated

       evidence indicating the employee acted for her own benefit.


[44]   We, however, find our Court’s decision in Walgreen Co. v. Hinchy, as relied upon

       by Appellees, to control the outcome here. In Hinchy, an employee pharmacist

       improperly accessed the prescription records of a Walgreen customer and

       divulged the information she had learned from those records to the customer’s

       ex-boyfriend. The customer filed a complaint against Walgreen and the

       pharmacist, seeking respondeat superior liability against Walgreen for the

       pharmacist’s actions, in addition to negligent training, supervision, and

       retention, as well as professional malpractice. Walgreen moved for summary

       judgment, and the trial court granted the motion with respect to the negligent

       training claim, but otherwise denied the motion. At the ensuing jury trial, the

       jury found in favor of the Walgreen customer.




       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020           Page 26 of 33
[45]   Walgreen appealed the partial denial of its motion for summary judgment and

       this Court affirmed. The Hinchy Court explained that the pharmacist was

       “authorized to use the Walgreen computer system and printer, handle

       prescriptions for Walgreen customers, look up customer information on the

       Walgreen computer system, review patient prescription histories, and make

       prescription-related printouts.” Hinchy, 21 N.E.3d at 108. The Hinchy Court

       further noted that the pharmacist was at work and using Walgreen equipment

       when the actions occurred, and much of her conduct was of the same general

       nature as her ordinary job duties authorized by her employer. As a result, the

       Hinchy Court held that whether the pharmacist’s actions were within the scope

       of the pharmacist’s employment was properly determined by the jury rather

       than as a matter of law in a summary judgment proceeding.


[46]   Here, as in Hinchy, Katrina’s actions were of the same general nature as those

       authorized, or incidental to the actions that were authorized, by Community.

       There is no dispute that Katrina was authorized to use her assigned desktop

       computer with Epic and other software to access patient health information.

       There remains a question of fact regarding why and what Katrina did with

       Appellees’ private health information. Because Katrina misused employer-

       conferred power and authority to access the health information, whether

       Katrina was acting within the scope of her employment is an issue to be

       determined by the trier of fact. See Knighten, 45 N.E.3d at 794. Accordingly,

       the trial court did not err when it denied Community’s motion for summary

       judgment on Appellees’ respondeat superior claim.


       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020       Page 27 of 33
       B. Negligent Training, Supervision, and Retention


[47]   Community also argues that the trial court erroneously denied its motion for

       summary judgment on Appellees’ negligent training, supervision, and retention

       claim.


[48]   A claim for negligent training, supervision, and retention is a species of

       negligence. Negligence claims have three elements: (1) a duty owed by the

       defendant to the plaintiff; (2) a breach of that duty; and (3) injury to the plaintiff

       proximately caused by the defendant’s breach. Scott v. Retz, 916 N.E.2d 252,

       257 (Ind. Ct. App. 2009). In negligence cases, summary judgment is “rarely

       appropriate.” Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004). In order for

       Community to obtain summary judgment in its favor on the negligent training,

       supervision, and retention claim, it was required to designate evidence to

       affirmatively negate or demonstrate that one of the elements of Appellees’ claim

       was not satisfied. See Jarboe, 644 N.E.2d at 123. Thus, our task on appeal is

       not to determine whether Appellees have proven each element of the negligent

       training, supervision, and retention claim. Rather, we must determine whether

       Community has adequately met its initial burden of proving an absence of any

       genuine issue of material fact or of affirmatively negating at least one element

       with respect to Appellees’ claim. Community argues that it negated all the

       elements of negligence.


[49]   Turning to the first element of negligence, duty, Community begins by arguing,

       correctly, that neither HIPAA nor INDIANA CODE § 16-39-5-3, as relied upon


       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020            Page 28 of 33
       by the trial court, provide private rights of action. However, the absence of a

       private right of action under either statute does not necessarily resolve the issue

       before us. Our recent decision in Henry v. Cmty. Healthcare Sys. Cmty. Hosp., 134

       N.E.3d 435 (Ind. Ct. App. 2019), is instructive. In Henry, we held that “[t]here

       is an age-old recognition that medical providers owe a duty of confidentiality to

       their patients.” Id. at 437. The Henry Court further explained that while this

       duty is codified by statute, the historical recognition of the duty at common law

       was unchanged. Id. at 437-38. Therefore, this Court concluded that “there is–

       and, in modern times, always has been–a common law duty of confidentiality

       owed by medical providers to their patients.” Id. at 438.


[50]   Community produced documents exhibiting its own recognition that its

       patients are entitled to confidentiality of their medical information.

       Furthermore, in response to a request for admission, Community admitted that

       “it had a responsibility to provide reasonable and appropriate safeguards to

       ensure confidentiality, integrity, and availability of the electronic protected

       health information of its patients.” (App. Vol. VIII at 43). Accordingly,

       Community’s argument that it negated the element of a duty owed to Appellees

       fails.


[51]   Next, Community argues it “affirmatively negated any finding of breach[]”

       because it appropriately trained and supervised Katrina, and it was unaware of

       Katrina’s misconduct or propensity to commit misconduct. (Community’s Br.

       45). Although the existence of duty is a matter of law for the court to decide, a

       breach of duty, which requires a reasonable relationship between the duty

       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020           Page 29 of 33
       imposed and the act alleged to have constituted the breach, is usually a matter

       left to the trier of fact. Mangold ex rel. Mangold v. Ind. Dep’t of Nat. Res., 756

       N.E.2d 970, 975 (Ind. 2001).


[52]   Community designated evidence detailing the steps it took to implement and

       enforce policies and procedures governing employee training and education.

       However, in response, Appellees designated evidence supporting reasonable

       inferences that Katrina was not properly trained, supervised, and that she

       should not have been retained because Community had notice of her

       unauthorized access to health information prior to the breach. For example,

       the Appellees’ designated a report from an expert in hospital management

       stating that the access to Appellees’ health information occurred because

       “Community Health did not have proper systems and protocols in place

       regarding its employees use of protected health information, neither was there

       appropriate training and education for their staff, nor did they have effective

       auditing and monitoring in place. There is a definite lack of systems and

       procedures.” (App. Vol. VIII at 9). The expert further stated that “[t]he fact

       that [Katrina] accessed private patient information and no one at the hospital

       was aware of the same for such a long period of time indicates that even if there

       are protocols in place, they are not being followed appropriately.” (App. Vol.

       VIII at 10). Furthermore, Appellees designated evidence indicating that

       Katrina’s supervisor had notice of Katrina’s unauthorized access of other

       patients’ health information prior to the subject actions here.




       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020              Page 30 of 33
[53]   Additionally, it is not enough for Community to point to its training and

       education materials that should have prevented Katrina’s access of Appellees’

       health information. Indeed, our supreme court has held that “[e]ven though an

       employee violates the employer’s rules, orders, or instructions, or engages in

       expressly forbidden actions, an employer may be held accountable for the

       wrongful act if the employee was acting within the scope of employment.”

       Warner Trucking v. Carolina Cas. Ins. Co., 686 N.E.2d 102, 105 (Ind. 1997).

       Thus, the conflicting designated evidence creates genuine issues of material fact

       as to whether Community breached its duty to protect the confidentiality of

       Appellees’ records.


[54]   Finally, Community argues that Appellees’ negligent supervision, training, and

       retention claim “must fail because they failed to proffer any evidence of an

       injury which resulted from [it’s] actions.” (Community’s Br. 48). However, it

       is well-settled that although federal practice permits the moving party to merely

       show that the party carrying the burden of proof at trial lacks evidence on a

       necessary element, Indiana state courts impose a more onerous burden: to

       affirmatively “negate an opponent’s claim.” Hughley, 15 N.E.3d at 1003

       (citation omitted). Here, Community’s designated evidence and argument in

       support of summary judgment on Appellees’ injury do not affirmatively negate

       Appellees’ claim. Moreover, the existence and extent of the damages to

       Appellees will need to be proven at trial. Therefore, the weight assigned to this

       yet-to-be-determined evidence is a question for the jury, and the trial court did

       not err in denying Community’s motion for summary judgment on this issue.


       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020          Page 31 of 33
       C. Actionability of Underlying Claims


[55]   As an offshoot of its argument that the trial court erred in denying summary

       judgment in its favor, Community also argues that even if Katrina was acting

       within the scope of her employment, it cannot be held vicariously liable for

       Katrina’s actions because Appellees’ underlying negligence and invasion of

       privacy/intrusion claims are not actionable under Indiana law. For the reasons

       stated above, we conclude that there are genuine issues of material fact as to

       whether Katrina violated Community’s policies and Community’s knowledge

       thereof regarding Appellees’ negligence claim. However, we agree with

       Community that Appellees’ claim for invasion of privacy/intrusion must fail.


[56]   There are four sub-torts under invasion of privacy: (1) false light; (2) public

       disclosure of private facts; (3) intrusion upon seclusion; and (4) appropriation of

       likeness. Westminster Presbyterian Church of Muncie v. Yonghong Cheng, 992

       N.E.2d 859, 868 (Ind. Ct. App. 2013), trans. denied. In this case, Appellee’s

       have alleged the disclosure of private facts. In Doe v. Methodist Hosp., our

       supreme court declined to recognize the sub-tort of public disclosure of private

       facts as an actionable claim. 690 N.E.2d 681, 693 (Ind. 1997). The court

       revisited the issue in Felsher v. Univ. of Evansville, explaining that its “discussion

       of [the history of the invasion of privacy tort] and the Second Restatement

       served as a prelude to [its] decision not to recognize a branch of the tort

       involving the public disclosure of private facts.” 755 N.E.2d 589, 593 (Ind.

       2001). See also F.B.C. v. MDWise, Inc., 122 N.E.3d 834, 836-37 (Ind. Ct. App.

       2019) (explaining that the tort of public disclosure has not yet been recognized

       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020              Page 32 of 33
       in Indiana), trans. denied. Here, Appellees’ complaint alleges that Katrina gave

       publicity to a matter that concerned their “private medical lives.” (App. Vol. II

       at 63). Based on the above case law, Community cannot be held vicariously

       liable for a tort that has yet to be recognized.


[57]   In regard to the intrusion claim, the F.B.C. Court also explained that

       “[i]ntrusion occurs when there has been an ‘intrusion upon the plaintiff’s

       physical solitude or seclusion as by invading his home or conducting an illegal

       search.’” Id. at 837 (quoting Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991)).

       This Court further explained that we have “specifically chosen not to recognize

       claims of [i]ntrusion where the intrusion only invades plaintiff’s emotional

       solace.” Id. Because Appellees’ do not claim any physical intrusion by

       Katrina, Community cannot be held vicariously liable for Appellees’ intrusion

       claim. Therefore, to the extent that Appellees’ respondeat superior claim is

       based on an underlying act of invasion of privacy/intrusion by Katrina, we

       conclude that Community is entitled to judgment as a matter of law


       3. Conclusion


[58]   For all of these reasons, the judgment of the trial court is affirmed in part,

       reversed in part, and remanded with instructions to grant summary judgment in

       favor of Community on Appellees’ invasion of privacy/intrusion claim.


[59]   Affirmed in part, reversed in part, and remanded with instructions.


       Robb, J., and Mathias, J., concur.

       Court of Appeals of Indiana | Opinion 19A-CT-873 | May 26, 2020           Page 33 of 33
