                                                                          FILED
                                                                     May 15 2020, 8:08 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Neal F. Eggeson, Jr.                                      Mark W. Baeverstad
Eggeson Privacy Law                                       Ashley M. Gilbert-Johnson
Fishers, Indiana                                          Rothberg Logan & Warsco LLP
                                                          Fort Wayne, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Haley SoderVick,                                          May 15, 2020
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          19A-CT-2671
        v.                                                Appeal from the Allen Superior
                                                          Court
Parkview Health System, Inc.,                             The Honorable Jennifer L.
Appellee-Defendant                                        DeGroote, Judge
                                                          Trial Court Cause No.
                                                          02D03-1809-CT-564



Baker, Judge.




Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020                              Page 1 of 23
[1]   Following an alleged Health Insurance Portability and Accountability Act

      (HIPAA) violation by an employee of Parkview Health System, Inc.

      (Parkview), Haley SoderVick filed suit alleging, among other things, that

      Parkview was vicariously liable under respondeat superior for the employee’s

      conduct. SoderVick now appeals the trial court’s order granting summary

      judgment in favor of Parkview, challenging the holding regarding Parkview’s

      liability under respondeat superior for its employee’s misconduct. She argues

      that the employee’s misconduct was within the scope of employment for

      purposes of respondeat superior. Finding that there is a genuine issue of

      material fact as to whether the employee was acting in the scope of employment

      and that the trial court erroneously granted summary judgment in favor of

      Parkview, we reverse in part and remand for further proceedings.


                                                      Facts
[2]   On October 19, 2017, SoderVick went to an appointment at the office of

      Catherine Reese, M.D., an OB/GYN, at Parkview’s campus in Wabash. At the

      time, Alexis Christian was employed by Parkview Physician Group—General

      Surgery as a medical assistant. Christian also occasionally worked with the

      OB/GYN group by assisting Dr. Reese’s staff with registering and rooming

      patients and inputting patient registration information into Parkview’s

      electronic health record system. Christian was working in this capacity for Dr.

      Reese on the day of SoderVick’s appointment. As a Parkview employee,

      Christian had signed a Confidentiality Agreement and an Acknowledgment



      Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020          Page 2 of 23
      Regarding Access to Patient Information acknowledging her understanding of

      Parkview’s confidentiality policy.


[3]   During SoderVick’s appointment with Dr. Reese, Christian accessed

      SoderVick’s electronic health record for approximately one minute. Christian

      testified during a deposition that “[t]he only reason [she] was in [SoderVick’s]

      chart was to enter [SoderVick’s] personal information” from a patient

      information worksheet. Appellant’s App. Vol. II p. 211.1 At the same time,

      Christian also asked another nearby medical assistant if she knew who

      SoderVick was; the assistant shared only that SoderVick was a dispatcher.


[4]   Christian then immediately texted information about SoderVick to Christian’s

      then-husband, Caleb Thomas. In these texts, Christian disclosed SoderVick’s

      name, the fact that she was a patient, a potential diagnosis, and that she worked

      as a dispatcher. Christian also texted Thomas that SoderVick was HIV-positive

      and had had more than fifty sexual partners, although this information was not

      included in her chart and was ultimately false. Christian testified that she had

      been checking Facebook on her phone during her lunch break earlier that day

      and had seen that SoderVick had liked a photo of Thomas. Later that

      afternoon, when Christian was “inputting chart information and came across all




      1
        There are some inconsistencies in the record as to why Christian accessed SoderVick’s record. An affidavit
      from Parkview’s Associate Privacy Officer states that Christian accessed the chart “for an unknown reason.”
      Appellant’s App. Vol. II p. 59. Another affidavit from Christian’s supervisor stated that her access was not
      related to the registering of patients in the front of the office, as Christian was working in the back of the
      office rooming patients, but that the short duration of Christian’s access of the chart—less than one minute—
      was not “long enough to room a patient.” Id. at 63-64.

      Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020                                  Page 3 of 23
      of that information” about SoderVick, she claims she felt “concerned” and

      therefore texted her husband asking if and how he knew SoderVick, curious as

      to whether they might have had a sexual history together. Id. at 217, 218.


[5]   Sometime later, Thomas’s sister, Casey Penrod, was using Thomas’s phone and

      saw the texts from Christian about SoderVick. On April 17, 2018, Penrod

      reported to Parkview that Christian had texted information about a patient and

      that a potential HIPAA violation had occurred. Penrod provided Parkview with

      a screenshot of the text thread. Parkview then initiated an internal investigation

      of the alleged HIPAA violation, after which Christian’s employment was

      terminated on May 2, 2018. SoderVick was notified of the disclosure of her

      protected health information on May 7, 2018.


[6]   SoderVick filed a complaint for damages with jury demand against Parkview on

      September 28, 2018. The complaint alleged claims for respondeat superior,

      direct negligence for Parkview’s negligent training, supervision, and retention,

      and direct negligence for Parkview’s violation of its statutory and common-law

      duties of protection of privacy under HIPAA. On July 19, 2019, Parkview

      moved for summary judgment on each of the three claims, arguing that (1)

      Parkview was not liable under respondeat superior because it did not authorize

      Christian’s conduct and there was no legitimate business reason for her

      conduct; (2) Parkview was not negligent in its training, monitoring, and

      supervision of its employees; and (3) no violation of HIPAA occurred.




      Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020          Page 4 of 23
[7]   On July 22, 2019, SoderVick filed a response conceding summary judgment on

      the direct negligence and HIPAA claims. She argued that the issue of

      respondeat superior must be left to the jury and that there was a clear HIPAA

      violation for which Parkview could be held vicariously liable. Parkview filed a

      reply in support of its motion on September 3, 2019.


[8]   The trial court held a hearing on Parkview’s motion for summary judgment on

      September 25, 2019, and took the matter under advisement. On October 25,

      2019, the trial court entered an order granting in part and denying in part the

      motion for summary judgment. That order was vacated2 on October 29 and the

      trial court entered a new order, again granting in part and denying in part

      Parkview’s motion for summary judgment. In both orders, the trial court

      granted summary judgment in favor of Parkview for counts I (respondeat

      superior) and II (direct negligence) and denied summary judgment for count III

      (HIPAA violation). Both parties filed motions to reconsider on November 7,

      2019. On November 15, the trial court granted Parkview’s motion to

      reconsider, denied SoderVick’s motion, and ultimately granted summary

      judgment in favor of Parkview on all three counts. SoderVick now appeals the

      grant of summary judgment solely on the respondeat superior claim.




      2
       The trial court vacated the original summary judgment order because the order “erroneously relied heavily”
      on a Court of Appeals decision for which a Petition to Transfer had been filed and was still pending.
      Appellant’s App. Vol. III p. 46. Transfer has since been denied. See Hayden v. Fransiscan All., Inc., 131 N.E.3d
      685, 691 (Ind. Ct. App. 2019), trans. denied.

      Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020                                   Page 5 of 23
                                        Discussion & Decision
[9]    On appeal, SoderVick challenges only the grant of summary judgment on the

       respondeat superior claim. She argues that the trial court erred by misapplying

       Indiana’s respondeat superior standard as to whether Parkview could be held

       vicariously liable for (1) Christian accessing SoderVick’s health record; and (2)

       Christian communicating true and false information about SoderVick to a third

       party.3


                                         I. Standard of Review
[10]   Our standard of review for summary judgment is well established:


                 Summary judgment is appropriate only when there are no
                 genuine issues of material fact and the moving party is entitled to
                 judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing
                 a trial court’s ruling on summary judgment, this court stands in
                 the shoes of the trial court and applies the same standard in
                 determining whether to affirm or reverse the grant of summary
                 judgment. We must therefore determine whether there is a




       3
        In addition to responding to SoderVick’s arguments regarding Parkview’s vicarious liability for Christian’s
       actions, Parkview also devotes a great deal of time to arguing that it is entitled to summary judgment on any
       underlying claims of defamation and false-light invasion of privacy regardless of the ultimate determination
       on the issue of respondeat superior. But neither of these two torts were actually alleged in SoderVick’s
       complaint, and the trial court did not address the merits or viability of these underlying torts allegedly
       committed by Christian; it focused its opinion entirely on the respondeat superior issue. SoderVick did briefly
       discuss these underlying torts in her Memorandum in Opposition to Defendant’s Motion for Summary
       Judgment, but explicitly stated therein that the discussion was included “in an abundance of caution” and
       only “[t]o the extent [that] these claims may be read into Parkview’s summary judgment motion.”
       Appellant’s App. Vol. II p. 115. Because SoderVick never alleged defamation or invasion of privacy in her
       complaint and because neither of those torts were the basis of Parkview’s motion for summary judgment—
       and therefore were not considered by the trial court—we decline to consider them here.

       Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020                                  Page 6 of 23
               genuine issue of material fact and whether the trial court has
               correctly applied the law.


               Relying on specifically designated evidence, the moving party
               bears the burden of making a prima facie showing that there are
               no genuine issues of material fact and that it is entitled to
               judgment as a matter of law. If the moving party meets this
               burden, the burden then shifts to the nonmovant to set forth
               specifically designated facts showing that there is a genuine issue
               for trial.


               A genuine issue of material fact exists where facts concerning an
               issue that would dispose of the issue are in dispute or where the
               undisputed material facts are capable of supporting conflicting
               inferences on such an issue. In our review, we consider all of the
               designated evidence in the light most favorable to the nonmoving
               party.


       Robbins v. Trustees of Ind. Univ., 45 N.E.3d 1, 5-6 (Ind. Ct. App. 2015) (internal

       quotations and some internal citations omitted). “If there is any doubt as to

       what conclusion a jury could reach, then summary judgment is improper.”

       Simon Prop. Grp., L.P. v. Acton Enters., Inc., 827 N.E.2d 1235, 1240 (Ind. Ct.

       App. 2005).


                                      II. Respondeat Superior
[11]   The trial court, in its third and final order granting summary judgment in favor

       of Parkview, concluded that there was no genuine issue of material fact and that

       Parkview was entitled to judgment as a matter of law with regards to its

       vicarious liability under respondeat superior principles for Christian’s actions.

       The trial court held that “Christian’s texts to a third party, whether they
       Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020          Page 7 of 23
       contained truthful information or false information about SoderVick, clearly fell

       outside the scope of her employment with Parkview and, therefore, Parkview is

       not vicariously liable for these acts.” Appealed Order p. 5. The trial court also

       noted that its conclusion was further bolstered by evidence establishing that

       there was no legitimate business purpose for Christian’s access of SoderVick’s

       record on the day of her appointment. SoderVick now argues that the trial court

       misapplied the respondeat superior standard and that all of Christian’s actions

       involving the access and communication of SoderVick’s personal information

       were within the scope of her employment for purposes of establishing

       Parkview’s vicarious liability.


[12]   When considering an employer’s liability for the actions of its employee, “[t]he

       general rule is that vicarious liability will be imposed upon an employer under

       the doctrine of respondeat superior where the employee has inflicted harm

       while acting ‘within the scope of employment’” and the employer would not

       otherwise be liable for its own acts. Barnett v. Clark, 889 N.E.2d 281, 283 (Ind.

       2008) (quoting Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 148 (Ind. 1999)). To

       fall within the scope of employment, the employee’s injurious act must either

       (1) “be incidental to the conduct authorized,” or (2) “to an appreciable extent,

       further the employer’s business.” Id. “Whether an act falls within the scope of

       employment is generally a question of fact.” Cox v. Evansville Police Dep’t, 107

       N.E.3d 453, 460 (Ind. 2018).


[13]   SoderVick argues that Christian’s conduct falls under the first prong of the

       scope of employment analysis—whether the misconduct was “incidental to”

       Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020          Page 8 of 23
       authorized conduct—because the acts of accessing and texting SoderVick’s

       personal health information was incidental to conduct Parkview had authorized

       Christian to do as part of her employment. SoderVick frames the relevant

       analysis as one in which “the focus must be on context—not on the specific act

       of texting,” whereas the analysis provided by Parkview disregards the larger

       employment context and focuses only on “the specific act of sending a text

       message to [Christian’s] husband.” Appellant’s Reply Br. p. 8.


[14]   In Walgreen Co. v. Hinchy, the following jury instruction was held to be a correct

       statement of law as to what factors may be considered in determining whether a

       wrongful act was “incidental to” the employee’s job duties:


               1. whether the wrongful act was of the same general nature as
                  her authorized job duties;


               2. whether the wrongful act is intermingled with authorized job
                  duties; and


               3. whether the employment provided the opportunity or the
                  means by which to commit the wrongful act.


       21 N.E.3d 99, 112 (Ind. Ct. App. 2014) (holding that the question of vicarious

       liability was one for the jury where pharmacist reviewed and shared a

       customer’s prescription information with a third party, “[e]ven though some of

       her actions were unauthorized”).




       Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020          Page 9 of 23
[15]   Recently, in Cox v. Evansville Police Department, our Supreme Court provided a

       detailed explanation of the “incidental to” prong of the scope of employment

       analysis:


                Although scope-of-employment liability is rooted in . . . control,
                it extends beyond actual or possible control, holding employers
                responsible for some risks inherent in the employment context.
                Ultimately, 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.


                This means that the scope of employment—which determines
                whether the employer is liable—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 (internal citations omitted).4 Employers will not be held

       responsible for acts that are entirely unauthorized or for “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.’” Hayden, 131 N.E.3d at 691

       (quoting Doe v. Lafayette Sch. Corp., 846 N.E.2d 691, 702 (Ind. Ct. App. 2006),

       abrogated on other grounds by State Farm Mut. Auto. Ins. Co. v. Jakupko, 881 N.E.2d




       4
         SoderVick also directs our attention to the discussion in Cox of the public policy behind including
       unauthorized, forbidden acts within the scope of employment: “First, it is equitable to hold people
       responsible for some harms arising from activities that benefit them. . . . Second, holding employers liable for
       those injurious acts helps prevent recurrence.” Cox, 107 N.E.3d at 461-62.

       Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020                                  Page 10 of 23
       654 (Ind. 2008)). “If some of the employee’s actions were authorized, the

       question of whether the unauthorized acts were within the scope of

       employment is one for the jury.” Konkle v. Henson, 672 N.E.2d 450, 457 (Ind.

       Ct. App. 1996) (emphasis added). But likewise, “if none of the employee’s acts

       were authorized, the matter is a question of law.” City of Fort Wayne v. Moore,

       706 N.E.2d 604, 607 (Ind. Ct. App. 1999).


[16]   We agree with SoderVick that when all of the above standards are applied to

       her case, there are several genuine issues of material fact as to whether

       Parkview should be held vicariously liable for Christian’s conduct, thus

       rendering summary judgment inappropriate. First, the evidence shows that

       Christian’s misconduct was “of the same general nature” as her regular and

       authorized job duties. Hinchy, 21 N.E.3d at 112. Christian’s official,

       documented job duties included “implementation of the electronical medical

       records,” “continuous[] monitoring of schedules and communication,” and

       other tasks involving patient chart access. Appellant’s App. Vol. II p. 160.

       Further, on the day of SoderVick’s appointment, Christian “assisted with the

       registration process for [SoderVick’s] appointment with Dr. Reese.” Id. at 133.

       And regardless of whether Christian was working in the front of the office

       registering patients or in the back of the office rooming patients, statements by

       her supervisor imply that accessing a patient’s chart would be a standard part of

       either of those assigned roles. See id. at 64.


[17]   Second, Christian was in the midst of performing authorized job duties—

       namely, entering patient information into the electronic charts—when she

       Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020            Page 11 of 23
       accessed SoderVick’s record and proceeded to text information about

       SoderVick to Thomas, thereby making the misconduct “intermingled” with her

       ordinary, authorized job duties. Hinchy, 21 N.E.3d at 112. Parkview admits that

       it “authorized Christian to access patients’ medical records for business

       purposes,” appellant’s app. vol. II p. 97, and Christian testified during her

       deposition that she accessed SoderVick’s chart as part of her authorized job

       duties:


               I was taking new patient packets that we would receive in and
               putting the information into the charts and then scanning them
               into the media section of Epic, so that we can go back in and
               review them, if there’s a question on history or something.


                                                         ***


               . . . [T]he only thing I had was [SoderVick’s] patient packet and
               entering it into Epic, which is the computer program system that
               Parkview uses.


       Id. at 208, 210. Thus, even if the specific act of texting information about

       SoderVick was not authorized, Christian’s misconduct occurred while at work

       and was sandwiched between other authorized job functions—facts which

       weigh in favor of finding that the misconduct was within the scope of

       employment.


[18]   Third, Parkview stated that “Christian was at work, used Parkview’s

       equipment, and utilized access granted by Parkview” in committing the

       wrongful acts. Appellant’s App. Vol. II p. 97. This also weighs in favor of

       Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020         Page 12 of 23
       finding that Christian was acting within the scope of her employment, as it

       suggests that, at least to some degree, Christian’s employment at Parkview

       enabled her to commit the misconduct in question. See, e.g., Hinchy, 21 N.E.3d

       at 112 (listing “whether the employment provided the opportunity or the means

       by which to commit the wrongful act” as a relevant factor in determining

       whether misconduct was incidental to ordinary job duties).


[19]   Next, the fact that the wrongful act violates an explicit policy or rule of the

       employer’s does not preclude respondeat superior. See, e.g., Cox, 107 N.E.3d at

       461 (“[T]he scope of employment . . . may include acts that the employer

       expressly forbids . . . .”). Therefore, Parkview may be held vicariously liable for

       Christian’s misconduct even if the actions in question ran directly counter to

       Parkview rules or policies, such as the Confidentiality Agreement and the

       Acknowledgment Regarding Access to Patient Information.


[20]   Because at least some of the acts surrounding Christian’s misconduct were

       authorized, the issue of respondeat superior must be left to the jury. See, e.g.,

       Moore, 706 N.E.2d at 607 (stating scope of employment matters are a question

       of law, and therefore appropriate for summary judgment, only if none of the

       employee’s acts were authorized by the employer). SoderVick contends that

       “the designated evidence proves that all of Ms. Christian’s acts were

       authorized,” appellant’s br. p. 20 (emphasis in original). But here, because the

       evidence demonstrates that even just some of Christian’s acts were

       authorized—for example, accessing the chart to input patient information, as



       Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020          Page 13 of 23
       discussed previously—the issue is inappropriate for summary judgment. See

       Konkle, 672 N.E.2d at 457.


[21]   As noted above, Parkview focuses on the specific act of Christian texting her

       husband, and argues further that we should focus on Christian’s subjective

       intent behind her conduct—that is, whether Christian acted entirely in self-

       interest. Parkview acknowledges that “there may be an issue of fact with regard

       to whether Christian’s chart access was authorized or unauthorized,” but

       nonetheless maintains that, because the texts to Christian’s husband were sent

       “for personal reasons and held no business purpose,” the acts fall outside of the

       scope of employment. Id. at 17. “[A]cts for which the employer is not

       responsible are those 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, 846 N.E.2d at 702 (internal quotations omitted).

       However,“[w]here an employee acts partially in self-interest but is still partially

       serving his employer’s interests,” then vicarious liability will attach. Id. at 701-

       02 (internal quotations omitted).


[22]   We do not disagree that subjective intent and a focus on the specific act of

       misconduct, rather than the whole employment context, are relevant

       considerations in the second prong of the scope of employment framework,

       which considers whether the injurious act “further[ed] the employer’s

       business.” Barnett v. Clark, 889 N.E.2d at 283; see also, e.g., Doe, 846 N.E.2d at

       702 (finding that teacher who engaged in a romantic relationship with a

       student, including sending sexually charged emails from a school computer to

       Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020           Page 14 of 23
       the student, was not acting in the scope of employment in part because his

       actions “were fueled entirely by self-interest in a romantic relationship”). But

       where Parkview’s proffered analysis falls short is that it focuses solely on these

       considerations—relevant only to half of the possible scope of employment

       framework—and wholly fails to address any arguments made with regards to

       whether Christian’s actions fit under the “incidental to” prong.


[23]   Parkview relies primarily on our decision in Robbins to support its argument

       that the circumstances and intent surrounding only the specific act of

       misconduct, rather than the broader employment context, is the only relevant

       focus of our inquiry. In Robbins, a nurse, DeBow, was employed to provide

       health care services to patients of the IU School of Medicine’s Gastroenterology

       Department, and upon employment signed a confidentiality agreement. 45

       N.E.3d at 4-5. On her first day of work, DeBow accessed the medical records of

       Robbins and her children, neither of whom were patients of the

       Gastroenterology Department, and she posted medical information about

       Robbins on Robbins’s ex-boyfriend’s blog. DeBow admitted to her employer

       that she knew her actions were wrong, and stated that there was “no legitimate

       business reason for her to access the records” and that her only motivation was

       “revenge.” Id. at 5. Upholding the grant of summary judgment in favor of the

       employer, this Court reasoned that DeBow acted “on her own initiative and

       unrelated to any business function of her employment or her employer” in

       accessing and disclosing Robbins’s private medical records, and that the actions

       themselves were “unauthorized and illegal.” Id. at 10-11.


       Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020         Page 15 of 23
[24]   But like Parkview’s analysis in this case, the Robbins Court’s discussion does not

       mention the longstanding disjunctive approach to scope of employment

       analysis. Instead, it omits any discussion of the “incidental to” authorized

       activities prong and focuses entirely on whether the nurse’s activities furthered

       the employer’s interests. In Parkview’s view, this omission means that Robbins,

       as a recent decision of ours, represents the current standard of scope of

       employment review. But more recent cases on scope of employment have

       continued relying on the two-pronged disjunctive standard, suggesting that

       Robbins stands only for the proper analysis under the prong of the traditional

       scope of employment test that deals with furthering the employer’s interests.

       See, e.g., Cox, 107 N.E.3d at 461 (“Ultimately, the scope of employment

       encompasses the activities that the employer . . . authorizes employees to do,

       plus employees’ acts that naturally or predictably arise from those activities.”). 5


[25]   As such, we agree with SoderVick that “[t]o the extent the employee’s

       subjective motivation matters at all, at most it would only inform the latter



       5
         Our Supreme Court in Cox twice cited to Hinchy with approval for its use of the disjunctive approach,
       whereas Robbins was not cited by the Court at all, let alone with any approval. Cox, 107 N.E.3d at 461; see also
       Hinchy, 21 N.E.3d at 107 (“To fall within the scope of employment, the injurious act must be incidental to
       the conduct authorized or it must, to an appreciable extent, further the employer’s business.” (internal
       quotations omitted and emphasis added)). Most recently, in Burton v. Benner, our Supreme Court again
       employed the traditional disjunctive standard, further suggesting that Robbins is an outlier. No. 19S-CT-
       00549, slip op. at 6. Although Burton deals with a respondeat superior question under the Indiana Tort
       Claims Act, which provides an employer will not be found vicariously liable only if employee acted “clearly
       outside” the scope of employment, id., the analysis for what constitutes scope of employment in the first
       place is the same as under common law respondeat superior principles. The Court found that Benner, an off-
       duty police officer who was pulled over for speeding while driving his commission, was not acting clearly
       outside of the scope of his employment because his conduct was the same general nature or incidental to
       authorized conduct: he followed State Police procedures for operating the commission, maintained radio
       contact, and conformed to a dress code. Id. at 7.

       Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020                                  Page 16 of 23
       prong” of scope of employment analysis—that is, subjective motivation is

       relevant only as to whether the misconduct furthers the employer’s interests, not

       whether it was incidental to authorized conduct. Appellant’s Br. p. 23; see also

       Stropes, 547 N.E.2d at 249 (citing with approval other courts that held that,

       when looking at the misconduct’s relation to the entire employment context,

       “‘the employee’s motivation should not be a consideration’ at all in determining

       the imposition of liability” on an employer) (quoting Marston v. Minneapolis

       Clinic of Psychiatry, 329 N.W.2d 306, 311 (Minn. 1982)).6


[26]   Parkview argued in its motion for summary judgment that there was no

       genuine issue of material fact as to whether Christian was acting in the scope of

       her employment. But we find that that there is a genuine issue of fact on the

       scope of employment issue; specifically, there is an issue of fact as to whether

       Christian’s conduct was incidental to authorized employment activities. We

       therefore find that the trial court erred in granting summary judgment in favor

       of Parkview on the respondeat superior claim, reverse that portion of the order,

       and remand for further proceedings.




       6
         Parkview especially emphasizes how Christian signed a confidentiality agreement like the employee in
       Robbins did and that she was “not acting to further the interests of her employer,” instead acting “in self-
       interest and as part of her own personal agenda.” Appellee’s Br. at 18. In her deposition, Christian did
       confirm that the “motivation in texting [her husband] was personal,” appellant’s app. vol. II p. 219, but the
       evidence shows the reason for accessing the record in the first place was likely business-related. And although
       Christian also signed a Confidentiality Agreement, Robbins does not necessarily require finding that fact to be
       dispositive in the way Parkview argues it should. See Robbins, 45 N.E.3d at 14 (Crone, J., concurring) (“I
       would not find the Confidential Agreement to be dispositive . . . .”); see also Cox, 107 N.E.3d at 461 (“[S]cope
       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.”).

       Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020                                  Page 17 of 23
[27]   The judgment of the trial court is reversed in part and remanded for further

       proceedings.


       Kirsch, J., concurs.
       Tavitas, J., dissents with a separate opinion.




       Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020       Page 18 of 23
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Haley SoderVick,                                          Court of Appeals Case No.
                                                                 19A-CT-2671
       Appellant-Plaintiff,

               v.

       Parkview Health System, Inc.,
       Appellee-Defendant.




       Tavitas, Judge, dissenting.


[28]   I respectfully dissent from the majority’s decision that genuine issues of material

       fact preclude summary judgment in favor of Parkview. I conclude that the trial

       court properly granted summary judgment to Parkview because Christian was

       not acting in the scope of her employment.


[29]   In support of its decision, the majority relies mainly upon Walgreen Co. v.

       Hinchy. I conclude, however, that Hayden v. Franciscan All., Inc., 131 N.E.3d

       685, 691 (Ind. Ct. App. 2019), trans. denied, is more persuasive.




       Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020                      Page 19 of 23
[30]   First, I agree with Hayden that our Supreme Court’s opinion in Cox is

       distinguishable. Hayden noted:


               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 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.


       Hayden, 131 N.E.3d at 691.


[31]   Second, the facts in Hayden are similar to the facts here. In Hayden, a patient

       received treatment at the hospital for a broken arm. Eleven days later, a

       hospital registration employee, Collins, accessed the patient’s medical records.

       Two years later, Collins’ friend texted a screenshot of the medical records to the

       patient’s boyfriend. Collins had received extensive HIPAA compliance training

       from her employer. Collins 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.” Hayden, 141

       N.E.3d at 690.


[32]   The patient filed a complaint against the hospital and others. One of the claims

       against the hospital was respondeat superior for Collins’ actions. The trial court


       Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020          Page 20 of 23
granted the hospital’s motion for summary judgment. On appeal, we affirmed.

We held:


        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 [v. Trustees of Indiana University,
        45 N.E.3d 1 (Ind. Ct. App. 2015)], where the confidentiality
        agreement expressly prohibited the nurse from 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.


        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 Collins.


                                               *****


        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-
Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020          Page 21 of 23
               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.


       Id. at 692-93.


[33]   Here, Christian accessed SoderVick’s medical records during SoderVick’s

       appointment, and Christian texted some accurate and some inaccurate

       information regarding SoderVick to her husband. Parkview designated

       evidence that an investigation revealed Christian had “no legitimate business

       purpose for accessing Ms. Sodervick’s chart and was not involved in the

       provision of medical care to Ms. Sodervick.” Appellant’s App. Vol. II p. 65.

       Christian admitted during the investigation that “she was concerned that her

       [husband] might be cheating on her with Ms. Sodervick.” Id. Christian had

       received training from Parkview regarding patient privacy, protected health

       information, security, and HIPAA compliance. Christian signed a

       Confidentiality Agreement and Acknowledgement Regarding Access to Patient

       Information. The Acknowledgement provided: “Accesses to patient

       information outside of information required for job responsibilities could be in

       violation of the federal HIPAA privacy rule, Indiana state law, and the

       Parkview policies . . . .” Id. at 75. The Acknowledgement listed “corrective

       action” for failure to follow the policies, including possible “immediate

       termination.” Id.




       Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020        Page 22 of 23
[34]   As in Hayden, Christian accessed the medical records for a non-employment

       related reason in direct violation of the Parkview Confidentiality Agreement

       and Acknowledgement that Christian signed. I conclude, based on Hayden, that

       the trial court properly granted summary judgment to Parkview. Accordingly, I

       dissent.




       Court of Appeals of Indiana | Opinion 19A-CT-2671 | May 15, 2020      Page 23 of 23
