                                                                                FILED
                                                                            Aug 19 2019, 9:09 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Robert D. King, Jr.                                        Christopher L. Riegler
      David R. Thompson                                          Kimberly E. Schroder
      Indianapolis, Indiana                                      Patricia B. Freije
                                                                 Katz Korin Cunningham, P.C.
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA
      Leslie D. Hayden,                                          August 19, 2019
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 18A-CT-1777
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      Franciscan Alliance, Inc.,1                                The Honorable Michael D. Keele,
      Appellee-Defendant.                                        Judge
                                                                 Trial Court Cause No.
                                                                 49D07-1511-CT-39310



      Mathias, Judge.


[1]   Franciscan Alliance, Inc. (“Franciscan”) filed a motion for summary judgment

      on the issues of respondeat superior and negligent hiring and retention of an




      1
       Brooke Collins and Jessica M. Hensley have not filed appellate briefs. However, pursuant to Indiana
      Appellate Rule 17(A), a party of record in the trial court shall be a party on appeal.

      Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019                            Page 1 of 18
      employee on April 5, 2018. Marion Superior Court granted summary judgment

      for Franciscan on July 6, 2018. Leslie Hayden (“Hayden”) now appeals,

      arguing there are issues of material fact that preclude summary judgment. We

      affirm.


                                  Facts and Procedural History

[2]   On November 18, 2013, Hayden had x-rays taken at St. Francis Hospital’s

      Radiology Department for a broken arm. Appellant’s App. Vol. III, pp. 54–56.

      Two years later, in 2015, Jessica Hensley (“Hensley”) texted a screenshot of

      Hayden’s confidential medical records to Hayden’s boyfriend, and posted the

      records on Facebook. Id. at 53; Appellant’s App. Vol. I, p. 137. Hayden recalled

      that Brooke Collins (“Collins”), Hensley’s best friend, worked as a registrar in

      the St. Francis Hospital Radiology Department, where Hayden received

      treatment in 2013. Appellant’s App. Vol. III, p. 59. Hayden had a complex and

      acrimonious relationship with Hensley and Collins that dated back to high

      school. Appellant’s App. Vol. I, pp. 125, 128, 149.


[3]   Hayden contacted the hospital’s Administrative Director of Compliance and

      Privacy in July 2015 to ask for an audit of her medical account. Appellant’s

      App. Vol. III, pp. 57, 163. The hospital found that Collins’s password was used

      to access Hayden’s account on November 29, 2013, eleven days after Hayden

      received treatment for her broken arm. Appellant’s App. Vol. I, pp. 81–82.

      Hayden was not a patient of Franciscan on November 29 when Collins’s

      password was used to access her account. Franciscan concluded that Collins’s

      access was unauthorized and improper. Appellant’s App. Vol. III, p. 191.
      Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019      Page 2 of 18
      Collins has since admitted to accessing Hayden’s private patient information on

      November 29, 2013. Appellant’s App. Vol. IV, p. 84.

[4]   On November 25, 2015, Hayden brought suit against Hensley, Collins, and

      Franciscan. A fourth defendant, Southside OB-GYN, P.C. was also named but

      later dismissed by stipulation. Appellant’s App. Vol. I, p. 11. Hayden alleged (I)

      respondeat superior against Franciscan for the acts of Collins, (II) negligence

      against Franciscan in failing to have appropriate prophylactic structures and

      systems in place to safeguard private patient information, (III) Health Insurance

      Portability Accountability Act (“HIPAA”) violations against St. Francis, and

      (IV) negligence, invasion of privacy & public disclosure of private facts against

      Collins and Hensley for accessing, reviewing, and disseminating Hayden’s

      private and confidential medical records.


[5]   Collins was hired as a registrar at St. Francis Hospital in April 2011.

      Appellant’s Confidential App. Vol. II, p. 72. The job required her to “get

      patient information, register them, verify their insurance, verify their personal

      information, and then enter it in the computer[.]” Id. Collins was subject to a

      background check, which showed that Collins had been arrested but not

      convicted for felony theft and misdemeanor conversion while in high school.

      Appellant’s App. Vol. III, p. 175–76. Collins had stolen medicine from

      Walmart and had withdrawn $400 from her father’s bank account. Id. at 132–

      37. Charges in both instances were dismissed. Id. at 137. Franciscan did not ask

      Collins about her criminal history in her initial interview, nor in a re-interview

      when she was transferred to St. Francis’s south campus. Id. at 139, 144, 155.

      Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019       Page 3 of 18
[6]   Cory Baute (“Baute”), Franciscan’s Chief HR and Support Services Executive

      for Franciscan Health’s Central Indiana Division, signed an affidavit stating

      that nothing in Collins’s application or background would or should have

      precluded her employment as a registrar at St. Francis. Appellant’s Confidential

      App. Vol. II, p. 97. Baute did not work for Franciscan in 2011 when Collins

      was hired but testified that the hiring practices in 2011 were “generally the same

      as they are now.” Appellant’s App. Vol. III, p. 180.


[7]   Franciscan also presented Linda Fletcher (“Fletcher”), the Hospital’s

      Information Security Officer, to testify about HIPAA compliance, patient

      privacy, and the security of electronic medical records. Appellant’s App. Vol.

      III, p. 119. Fletcher testified that background checks assist with HIPAA

      compliance and are one of the controls Franciscan uses to ensure “staff are

      appropriate to handle the [protected health] information.” Id. at 121. When

      asked whether certain backgrounds are disqualifying, Fletcher responded, “That

      would be handled at the St. Francis level within HR. . . they run the

      background checks and they’re responsible for the criteria used to qualify and

      disqualify people.” Id. at 122. She did not know what criteria the HR

      departments use but testified that disqualifying backgrounds would presumably

      include any abuse of private health information, criminal background, and

      tendency for fraud and abuse. Id. at 122–23. When asked whether a history of

      theft would be disqualifying, Fletcher responded, “It depends on the theft, I

      guess.” Id. at 124.




      Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019     Page 4 of 18
[8]   Once hired, Collins was required to undergo HIPAA training. After completing

      training, Collins signed the General Orientation Agreement, which provided

      that she had “received and underst[ood] the information regarding the Health

      Insurance Portability and Accountability Act of 1996 (HIPAA) regulations and

      hospital[] policies and procedures regarding Safety, Security, PI, and Patient

      Rights as presented during and contained in the General Orientation

      Handbook.” Appellant’s Confidential App. Vol. II, p. 80. She also signed an

      acknowledgment affirming her understanding that she may only “use and

      access information that is needed to perform [her] job duties, and inappropriate

      use or disclosure of information on [her] part may result in legal action,

      including personal liability.” Id. at 81.


[9]   Collins also received regular trainings, including classes on HIPAA

      compliance, patient privacy and security, and appropriate access to and usage

      of medical records, and periodically took tests about patient privacy. Id. at 83.

      Supervisors were near Collins’s work area and made regular rounds to check on

      the registrars. Id. Annual audits analyzed the online activities of the registrars.

      Id. Collins testified that she had been trained and educated by Franciscan and

      was aware of appropriate and inappropriate access of patient records.

      Appellant’s App. Vol. III, p. 158. She also knew that accessing and forwarding

      medical records to outside parties was against hospital policy. Id. at 159. Collins

      voluntarily resigned in February 2014. Appellant’s Confidential App. Vol. II, p.

      72.




      Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019        Page 5 of 18
[10]   Collins filed a motion for summary judgment on September 1, 2017 in which

       Franciscan joined. The court granted partial summary judgment on Count III,

       finding that Hayden had no private right of action under HIPAA. Franciscan

       filed a subsequent motion for summary judgment on April 5, 2018. Collins filed

       an amended answer and response in order to admit accessing Hayden’s private

       patient information on November 29, 2013. Franciscan asked that Collins’s

       amended answer and responses be considered as part of its pending motion for

       summary judgment. The Court granted the motion for summary judgment.

       Hayden now appeals.


                                           Standard of Review
[11]   A trial court should grant a motion for summary judgment only when the

       evidence shows that there is no genuine issue as to any material fact and that

       the moving party is entitled to a judgment as a matter of law. Altevogt v. Brand,

       963 N.E.2d 1146, 1150 (Ind. Ct. App. 2012) (citing Ind. Trial Rule 56(C)). The

       trial court’s grant of a motion for summary judgment is “cloaked with a

       presumption of validity.” Id. In reviewing a trial court’s summary judgment

       motion, an appellate court applies a de novo standard of review. Alldredge v.

       Good Samaritan Home, Inc., 9 N.E.3d 1257, 1259 (Ind. 2014).


[12]   Here, the trial court made findings of fact and conclusions of law in support of

       its entry of summary judgment. We are not bound by the trial court’s findings

       and conclusions. Altevogt, 963 N.E.2d at 1150.




       Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019      Page 6 of 18
                                       Discussion and Decision

[13]   Hayden argues that the trial court improperly granted summary judgment to

       Franciscan. Hayden raises four issues on appeal that we consolidate and restate

       as two issues. First, she argues that summary judgment should not have been

       granted on Franciscan’s respondeat superior claim. Second, she argues the trial

       court erroneously granted summary judgment to Franciscan on negligent

       hiring, retention, monitoring, supervision, and training.


                                              I. Respondeat Superior

[14]   Hayden first claims that Franciscan is liable for Collins’s actions under

       respondeat superior. Appellant’s Br. at 23. An employer is liable for an

       employee’s tortious acts under respondeat superior only if those acts occurred

       within the scope of employment. Cox v. Evansville Police Department, 107 N.E.3d

       453, 460 (Ind. 2018). An employee acts within the scope of employment when

       an act furthers the employer’s business to an appreciable extent or is incidental

       to authorized conduct. Walgreen Co. v. Hinchy, 21 N.E.3d 99, 107 (Ind. Ct. App.

       2014). An act is incidental to authorized conduct when it is “subordinate to or

       pertinent to an act which the [employee] is employed to perform[.]” Id. (quoting

       Bushong v. Williamson, 790 N.E.2d 467, 473 (Ind. 2003)).


[15]   Employers are not responsible for acts that are unauthorized, or acts done “on

       the employee’s own initiative, [] with no intention to perform it as part of or

       incident to the service for which he is employed.” Doe v. Lafayette School Corp.,

       846 N.E.2d 691, 702 (Ind. Ct. App. 2006), abrogated on other grounds by State


       Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019         Page 7 of 18
       Farm Mut. Auto. Ins. Co. v. Jakupko, 881 N.E.2d 654 (Ind. 2008) (quoting Stropes

       v. Heritage House Childrens Center, 547 N.E.2d 244, 247 (Ind. 1989)). An

       employer may still be liable when an employee acts partially in self-interest and

       partially in the employer’s interest. Id. at 701–02. The scope of employment

       “may include acts that the employer expressly forbids; that violate the

       employer’s rules, orders, or instructions; that the employee commits for self-

       gratification or self-benefit; that breach a sacred professional duty; or that are

       egregious, malicious, or criminal.” Cox, 107 N.E.3d at 461.


[16]   Hayden cites to Walgreen Co. v. Hinchy, where the court denied summary

       judgment on the issue of vicarious liability when a pharmacist reviewed and

       shared a customer’s prescription profile with a third party. 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 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. Even though some of her actions were

       unauthorized, the question of vicarious liability was a question for the jury.2




       2
        Hayden’s additional citation to Cox, 107 N.E.3d 453, is unhelpful. The Indiana Supreme Court specifically
       noted the “unique institutional prerogatives of [] police employment” in deciding that the question of
       vicarious liability for the sexual assault of a woman in police custody was a question for the jury. 107 N.E.3d
       at 464. Cox expanded liability because police officers wield “broad authority and intimidating power” that

       Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019                               Page 8 of 18
[17]   Franciscan cites to two cases in contrast to Hinchy. First, Franciscan points to

       Doe v. Lafayette School Corp., where the court affirmed summary judgment for a

       school corporation on the issue of vicarious liability for a teacher’s sexual

       molestation of a student. 846 N.E.2d 691. The teacher sent emails to the

       student during and after school hours using his school-provided laptop. Id. at

       695. His actions were outside the scope of employment because he was not

       authorized to send personal emails to students or to pursue a romantic

       relationship with a student. Id. at 702. The teacher’s actions were “fueled

       entirely by self-interest in a romantic relationship with [the student]” rather

       than “incident to any service provided by [the school corporation.]” Id.


[18]   Franciscan also directs the court to Robbins v. Trustees of Indiana University, 45

       N.E.3d 1 (Ind. Ct. App. 2015) where the court affirmed summary judgment for

       a hospital on the issue of vicarious liability. The hospital was not vicariously

       liable when a nurse accessed and posted confidential medical records on an

       internet blog. The nurse signed a confidentiality agreement at the start of her

       employment, which provided the nurse would:

                …only access, use (read, add, change, or delete), or disclose
                information for which [she had] a business reason and [was]
                authorized to do so. At no time [would she] access, use, or
                disclose confidential or sensitive information to any person or




       comes with an “inherent risk of abuse.” Id. at 459, 463. The public policy behind the Cox extension of the
       doctrine of respondeat superior for law enforcement officials’ conduct does not exist here.

       Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019                               Page 9 of 18
               third party for a personal, unauthorized, unethical, or illegal
               reason.


       Id. at 4. Although the nurse was authorized to access patient information, the

       court found that the existence of the confidentiality agreement meant she was

       “expressly not authorized to access, use, or disclose the information for personal,

       unauthorized, unethical, or illegal reasons.” Id. at 10 (emphasis in original).

       The court also noted that the patient had never been treated in the nurse’s

       department. Id. at 5. Her actions were not incident to any service provided by

       her employer but were “motivated entirely by self-interest related to a personal

       relationship” with the patient, and thus the nurse’s actions were outside the

       scope of her employment. Id. at 11. Summary judgment on the issue of

       vicarious liability was appropriate.

[19]   Hayden’s case is more akin to Doe and Robbins rather than to Hinchy. Although

       Collins was authorized to use Franciscan’s computer to look up patient records,

       she was not authorized to do so for personal reasons. As in Robbins, where the

       confidentiality agreement expressly prohibited the nurse form accessing and/or

       disclosing patient records for personal reasons, Collins signed an agreement at

       the onset of her employment that stated she could only “use and access

       information that is needed to perform [her] job duties, and inappropriate use or

       disclosure of information on [her] part may result in legal action, including

       personal liability.” Appellant’s Confidential App. Vol. II, p. 81. There is no

       evidence that the pharmacist in Hinchy signed a confidentiality agreement.



       Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019       Page 10 of 18
[20]   Collins accessed Hayden’s records eleven days after Hayden’s visit to the

       Radiology Department. Hayden was not a patient of Franciscan on November

       28 or 29, 2013. Collins thus had no legitimate business need to access Hayden’s

       medical records on November 29, 2013 because Collins did not need to look

       her up for an appointment or to prepare patient records for November 29, 2013.

       Collins’s access to the medical records was expressly not authorized; the

       information was not needed to perform her job duties and thus was not

       sanctioned. In addition, Hayden’s comparison to Hinchy is ultimately untenable

       because there is no evidence that the pharmacist in Hinchy signed a

       confidentiality agreement like the nurse in Robbins or Collins3.


[21]   We are also unpersuaded by Hayden’s argument that a genuine issue of

       material fact exists because Collins claims that she did not access and

       disseminate Hayden’s medical records. Appellant’s Br. at 34. In her amended

       answer, Collins admitted accessing Hayden’s medical records on November 29,

       2013. Appellant’s App. Vol. IV pp. 80, 84. Collins’s factual admission cannot

       be withdrawn by an earlier statement in a deposition. A judicial admission is

       “an admission in a current pleading or made during the course of trial; it is

       conclusive upon the party making it and relieves the opposing party of the duty




       3
         Hayden also argues that Robbins is inapplicable because the patient in Robbins was not a patient of the
       nurse’s department, the nurse admitted she was not involved in any way with providing any healthcare or
       treatment to the patient or her children, and that the nurse pleaded guilty to a related criminal offense.
       Appellant’s Br. pp. 33–36. In contrast, Hayden was a patient of Collins’s department, and Franciscan has not
       provided any evidence on either of the other two points. However, the factual differences between this case
       and Robbins do not affect our reliance on the legal analysis in Robbins as it relates to whether Hayden was
       acting within the scope of her employment and had signed a confidentiality agreement.

       Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019                            Page 11 of 18
       to present evidence on that issue.” Weinberger v. Boyer, 956 N.E.2d 1095, 1105

       (Ind. Ct. App. 2011), trans. denied. An admission in a pleading is conclusive. Id.

       Collins admitted in her answer that she accessed Hayden’s medical records; this

       fact is now settled and cannot be used to survive summary judgment.

[22]   The trial court properly granted summary judgment to Franciscan on the issue

       of respondeat superior. Franciscan established that Collins accessed the medical

       records for non-employment-related reasons, in direct violation of the

       confidentiality agreement she signed at the onset of her employment with

       Franciscan. Hayden failed to designate any evidence to the contrary. For these

       reasons, Franciscan is entitled to summary judgment as a matter of law.


                                                    II. Negligence

[23]   Hayden claims that Franciscan is liable for negligently hiring and retaining,

       training, and monitoring and supervising Collins. 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).


       A.      Hiring and Retention


[24]   Indiana courts recognize a tort of negligent hiring and retention of an

       employee. Konkle v. Henson, 672 N.E.2d 450, 454 (Ind. Ct. App. 1996). Indiana

       has adopted the Restatement (Second) of Torts section 317, which provides:


               A master is under a duty to exercise reasonable care so to control
               his servant while acting outside the scope of his employment as
       Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019       Page 12 of 18
               to prevent him from intentionally harming others or from so
               conducting himself as to create an unreasonable risk of bodily
               harm to them, if (a) the servant (i) is upon the premises in
               possession of the master or upon which the servant is privileged
               to enter only as his servant, or (ii) is using a chattel of the master,
               and (b) the master (i) knows or has reason to know that he has
               the ability to control his servant, and (ii) knows or should know
               of the necessity and opportunity for exercising such control.


[25]   It is undisputed that Collins was an employee of Franciscan and was on

       Franciscan’s premises when the unauthorized access occurred. At summary

       judgment, it was Franciscan’s burden to show it had no reason to know of its

       need to control Collins. See Hudgins v. Bemish, 64 N.E.3d 923, 933–934 (Ind. Ct.

       App. 2016). In an action for the negligent retention of an employee, evidence of

       prior similar actions committed by an employee is often admissible to establish

       the employer’s actual or constructive knowledge of the employee’s propensity

       to commit a later act. Frye v. Am. Painting Co., 642 NE.2d 995, 999 (Ind. Ct

       App. 1994) (citing Tindall v. Enderle, 162 Ind. App. 524, 527, 320 N.E.2d 764,

       767 (Ind. Ct. App. 1974)).

[26]   Franciscan points to Robbins, where the nurse’s background check yielded that

       she had a misdemeanor battery conviction and dismissed charges for class A

       misdemeanor criminal mischief, driving while suspended, and a probation

       violation. 45 N.E.3d 1 at 4. This court held that the nurse’s violation of medical

       confidentiality “did not constitute a recurrence of criminal behavior for which

       [she] had earlier been convicted. Specifically, there were no prior reports of

       [her] accessing and publishing any other patient’s confidential medical


       Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019          Page 13 of 18
       records.” Id. at 12. Under these circumstances, the patient was not a reasonably

       foreseeable victim and the nurse’s posting of information was not a reasonably

       foreseeable harm.4 Id.


[27]   The present case is similar to Robbins. Collins was vetted through her

       application for employment, interview, and criminal background check.

       Collins’s background check indicated she had two arrests, but the charges in

       both cases were dismissed. Her previous arrests were for stealing medicine from

       Walmart and stealing $400 from her father six years before her employment

       with Franciscan. She had no history of accessing and publishing confidential

       medical records or other sensitive information.


[28]   Cory Baute (“Baute”), Franciscan’s Human Resources manager, testified that

       nothing in Collins’s background would raise a red flag or prevent her from

       being hired. Hayden argues that Baute’s affidavit is defective because he could

       not be “100 percent certain” about the hiring processes utilized in 2011 because

       he was not at Franciscan at the time. Appellant’s Br. at 43; Appellant’s App.




       4
         Hayden’s attempts to compare Frye to the present case are unavailing. In Frye, the painter committed his
       first crime while already employed at the painting company and fled the scene of the first crime in the painting
       company’s van; the painting company then provided him with representation and legal advice. 642 NE.2d
       995 at 997. He then committed an almost identical crime at the home of a customer. Id. The questions of
       whether the painter posed a threat to customers and whether the company breached its duty to its customers
       by retaining the painter was a question for the jury. Id. at 999. In contrast, Collins’s arrests happened six years
       before she was hired at Franciscan. Her previous crimes were instances of theft, not of accessing private
       patient information.

       Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019                                  Page 14 of 18
       Vol. III, p. 180. However, Baute did testify that the processes were “generally

       the same as they are now.” Appellant’s App. Vol. III, p. 180.

[29]   Hayden attempts to show that there remain issues of material fact by

       contrasting the testimony of Baute with the testimony of Linda Fletcher

       (“Fletcher”), Franciscan’s patient privacy director. Appellant’s Br. at 45–46.

       Fletcher testified that a criminal background would be a disqualifying

       background for HIPAA compliance. Appellant’s App. Vol. III, pp. 123–24.

       Hayden thus argues that Collins’s hiring and retention was negligent due to

       Collins’s prior arrests.


[30]   This is an inaccurate characterization of Fletcher’s testimony. Fletcher testified

       that background checks assist with HIPAA compliance but that she did not

       know what a disqualifying background would be, because background checks

       are “handled at the St. Francis level within HR…they run the background

       checks and they’re responsible for the criteria used to qualify and disqualify

       people.” Id. at 122. Fletcher herself stated that she was not an expert on

       background checks; HR employees such as Baute are. Fletcher’s testimony thus

       does not contradict Baute’s expert testimony.


[31]   Franciscan designated evidence establishing that Franciscan did not negligently

       hire and retain Collins. Hayden failed to designate evidence sufficient to create

       a genuine issue of material fact. Summary judgment was therefore appropriate

       on the issue of negligent hiring and retention.




       Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019      Page 15 of 18
       B.      Training


[32]   Next, Hayden argues that genuine issues of material fact preclude the entry of

       summary judgment on the issue of negligent training. We disagree.


[33]   Sharla D. Rhodes (“Rhodes”), Franciscan’s Director of Patient Access, testified

       that Collins went through orientation when she was hired at the hospital, and

       that her orientation included training on patient privacy and confidentiality of

       medical records. Appellant’s Confidential App. Vol. II, p. 83. She further

       testified that Collins received regular training throughout her employment,

       including classes on patient privacy and appropriate access to medical records.

       Id. Collins herself testified that she had been trained and educated by the

       Hospital:


               Q: As a result of your training and education provided to you as
               an employee of St. Francis, were you aware of appropriate and
               inappropriate access, viewing and use of information contained
               within patient medical records?

               A: Yes.

               Q: Okay. And so if you accessed records you weren’t supposed to,
               you knew that was wrong?

               A: Yes.

       Appellant’s App. Vol. III, p. 158. Construing the facts most favorably for the

       non-moving party, the facts show that Franciscan provides training to

       employees on HIPAA, patient privacy, and appropriate access to medical

       records at the onset of and throughout employment. These facts also

       Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019      Page 16 of 18
       demonstrate that Collins knew in what instances access to medical records was

       appropriate and in what instances access was improper.

[34]   Hayden failed to designate any evidence creating a genuine issue of material

       fact on the issue of negligent training. Summary judgment was therefore

       properly granted to Franciscan on this issue.

       C.      Negligent monitoring and supervision


[35]   Finally, Hayden argues that Franciscan failed to meet its burden to prove that

       Collins was properly monitored and supervised. In support of her argument,

       Hayden relies on the affidavit of Rhodes, Franciscan’s Director of Patient

       Access.

[36]   Testimony shows that supervisors were near Collins’s work area and made

       regular rounds checking on the status of the registrars. Appellant’s Confidential

       App. Vol. II, p. 83; Appellant’s App. Vol. III pp. 151–52. Supervisors were able

       to monitor the computers used by each registrar and perform annual audits that

       analyzed the online activities of the registrars. Appellant’s Confidential App.

       Vol. II, p. 83. Collins herself testified that “there was always a manager there”

       and that she believed that “all managers could see what the employees were

       doing.” Appellant’s App. Vol. III, pp. 151–52. Franciscan designated evidence

       that they did not breach a duty to their patients.5




       5
        Hayden argues that several statements in Rhodes’s affidavit should have been struck. Hayden argues
       that Rhodes is not an expert because Rhodes identified herself as a “master gardener” rather than an

       Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019                      Page 17 of 18
[37]   Hayden also argues that Rhodes’s testimony does not establish that Franciscan

       properly supervised and managed employees because she could not specifically

       testify whether supervisors had been making rounds on November 29, 2013.

       This is an inaccurate characterization of Rhodes’s testimony. Rhodes testified

       that Collins was not supervised differently than any other registrar at

       Franciscan, and she was properly supervised based on Franciscan’s standards.

       Id. at 112. Rhodes clarified that the registrar’s role is “very independent. There’s

       not a reason for somebody to stand over them all the time unless they ask for

       assistance or they need support with something[.]” Id. at 91. Rhodes’s affidavit

       and testimony are not deficient.


                                                  Conclusion
[38]   Hayden failed to establish any genuine issue of material fact. The trial court

       appropriately granted summary judgment to Franciscan on the issues of

       respondeat superior and negligence.


[39]   Affirmed.


       May, J., and Brown, J., concur.




       expert in training individuals in privacy and protected health information. Id. at 71–73, 107–108.
       However, Rhodes testified that she has expertise in training registrars and that she helps others learn the
       Epic System. Id. at 107–08. She has applicable training to be considered an expert and to satisfy
       Indiana Evidence Rule 702.


       Court of Appeals of Indiana | Opinion 18A-CT-1777 | August 19, 2019                           Page 18 of 18
