CopyCited 41 times | Published | Supreme Court of Florida | 26 I.E.R. Cas. (BNA) 1343, 32 Fla. L. Weekly Supp. 635, 2007 Fla. LEXIS 1902
...In reinstating the case, the Second District certified the following question to this Court as one of great public importance: IS FLORIDA'S IMPACT RULE APPLICABLE IN A CASE IN WHICH IT IS ALLEGED THAT THE INFLICTION OF EMOTIONAL INJURIES HAS RESULTED FROM A CLINICAL LABORATORY'S BREACH OF A DUTY OF CONFIDENTIALITY UNDER SECTION 381.004(3)(f), FLORIDA STATUTES (SUPP.1996), WITH RESPECT TO HIV TEST INFORMATION? *203 Id....
...Eaker,
837 So.2d 348 (Fla.2002), in which this Court recently concluded that a civil action for damages arose from the breach by a psychotherapist of a statutory duty of confidentiality and privacy. Abril,
884 So.2d at 211-13. As in Gracey, the district court found that a statute, in this case section
381.004(3)(f), Florida Statutes (Supp.1996), supported the recognition of a cause of action for negligence based upon the alleged breach of a duty of confidentiality on the part of the health care providers who conducted Ms....
...ecause of Continental's negligence resulting in breach of its duty to maintain the confidentiality of the test results. Thus, the Abrils essentially asserted a common law negligence claim against Continental utilizing the breach of the provisions of section 381.004(3)(f) as evidence of Continental's negligence....
...s for the jury, "duty exists as a matter of law and is not a factual question for the jury to decide." McCain v. Fla. Power Corp.,
593 So.2d 500, 503 (Fla.1992). It is the existence of a duty on the part of Continental that is at issue in this case. Section
381.004(3)(f) The district court relied primarily upon the provisions of section
381.004(3)(f) as the source of a duty of confidentiality owed by Continental to Ms. Abril. Section
381.004(3)(f) provides: Except as provided in this section, the identity of any person upon whom a[n HIV] test has been performed and test results are confidential and exempt from the provisions of s....
...In rejecting the department's argument that no duty to Ms. Abril existed, the district court explained: The complaint filed by the Abrils alleges facts that would be sufficient to establish that Continental Laboratory violated a duty imposed on it by section 381.004 to maintain the confidentiality of HIV test results and to disclose those results only as authorized by law....
...legislative or quasi-legislative measures represent a standard of at least reasonable care which should be adhered to in the performance of any given activity. Id. at 491; see also deJesus v. Seaboard Coast Line R.R. Co.,
281 So.2d 198 (Fla. 1973). Section
381.004(3)(f), at a minimum, creates a reasonable standard of care for handling HIV testing results, and Continental's breach of this statute by the improper release of Abril's results may be evidence that the laboratory acted negligently. The district court also noted that in addition to the explicit provisions for confidentiality of HIV testing under section
381.004, health care laboratories are also governed by other provisions of the Florida Statutes, such as the Florida Clinical Laboratory Law in section 483.181(2), Florida Statutes (1995), which explicitly mandates that "[t]he results of a te...
...Johnson,
814 So.2d 390, 393 (Fla.2002) ("A patient's medical records enjoy a confidential status by virtue of the right to privacy contained in the Florida Constitution, and any attempt on the part of the government to obtain such records must first meet constitutional muster."). In addition to the specific provisions of section
381.004 protecting HIV testing, section
395.3025 of the Florida Statutes also expressly provides that a patient's medical records are confidential and must not be disclosed without the consent of the patient....
...the part of Continental Laboratory to maintain the confidentiality of information relating to Mrs. Abril's HIV test is unquestioned." Abril,
884 So.2d at 213. [3] Because the Abrils could rely on the violation of several Florida statutes, including section
381.004, as evidence of negligence, we find no error in the district court's reinstatement of their civil action for negligence....
...of confidentiality owed to the plaintiffs was "unquestioned." Id. at 213. We agree with the district court that this Court's analysis in Gracey sets strong precedential authority for this exception. At least one clear purpose behind the enactment of section 381.004(3)(f) was to ensure that people potentially exposed to HIV would get tested. The Legislature also apparently concluded, however, that people may resist HIV testing because of the fear that their results would become public knowledge. § 381.004(1), Fla....
...should have known that by sending the results in an unsecured fax, it was risking causing great emotional distress to the Abrils if an unauthorized party saw the test results. Because the only reasonable damages arising from a breach of section *208 381.004(3)(f) are emotional distress, and because this emotional damage would be akin to that suffered by victims of defamation or invasion of privacy, we conclude they should not be barred by the impact rule....
...t resulting from the lack of predictability as to when an exception to the impact rule will be created. CANTERO, J., concurring in part and dissenting in part. I agree that a violation of the confidentiality requirement in the HIV testing statute section 381.004(3)(f), Florida Statutes (Supp.1996) may be used as evidence of negligence....
...ices Wells and Cantero that the impact *213 rule bars the Abrils from recovering damages for emotional distress and that we should resist creating another exception. However, because the Abrils do not rely upon the duty of confidentiality created by section 381.004(3)(f), the certified question has no basis in the record and, therefore, should be revised....
...ore, should be revised. The certified question asks whether Florida's impact rule applies "in a case in which it is alleged that the infliction of emotional injuries has resulted from a clinical laboratory's breach of a duty of confidentiality under section
381.004(3)(f)." Abril v. Dep't of Corr.,
884 So.2d 206, 213 (Fla. 2d DCA 2004). No such case is before this Court. The Abrils have repeatedly disclaimed any reliance upon the duty of confidentiality created by section
381.004(3)(f). As stated in their brief to us: *214 For the reasons stated in this Brief, Respondents do not believe this case concerns this certified question, because Respondents do not rely on Section
381.004 at all in their Amended Complaint....
...cated in their reports, that Continental violated prevailing standards of practice when its employees negligently disclosed results of confidential blood test results to persons not authorized to receive those results. Respondents will not rely upon Section 381.004 to prove breach of standards....
...experience) who will testify concerning the breach of prevailing professional standards. Amended Respondents' Answer Br. at 3-4 & n. 2 (emphasis added). The record confirms the Abrils' position. Their amended complaint never mentions or relies upon section 381.004....
...in that it revealed the contents of Abril's HIV test results to persons not authorized to receive the information." In this light, the majority's statement that "the Abrils essentially asserted a common law negligence claim against Continental utilizing the breach of the provisions of section 381.004(3)(f) as evidence of Continental's negligence" has no basis in the record. Majority op. at 204. Consequently, because this case is clearly not "a case in which it is alleged that [the injury] has resulted from a . . . breach of a duty of confidentiality under section 381.004(3)(f)," majority op....
...The Abrils' counsel reiterated this point at oral argument. He said, " Kush v. Lloyd is the case I am primarily relying upon, medical malpractice." Kush v. Lloyd,
616 So.2d 415 (Fla.1992). [7] Not only does the majority opinion ignore the fact that the Abrils adamantly disclaim any reliance upon section
381.004, it also essentially ignores the fact that this question arose in the context of a medical malpractice action....
...duty creates potential tort liability irrespective of the remedies expressly provided by the Legislature. Moreover, in doing so, the majority recognizes a new common law action for nonintentional, negligent breaches of the duty of confidentiality in section 381.004(3)(f)....
...opinion leaves the impression that this Court is validating the Second District's interpretation of this Court's precedent. Majority op. at 205. Relying primarily on Gracey, the Second District determined that a breach of the duty of care imposed by section 381.004(3)(f) gives rise to tort liability....
...The Second District reached this conclusion without any examination of legislative intent, particularly the efficacy of the express statutory remedies. [8] The effect of that decision was to add a new tort remedy to the administrative and criminal remedies the Legislature provided for breaches of the duty in section 381.004(3)(f)....
...In doing so, the majority recedes from this Court's prior decisions sub silentio. Simply stated, the majority's broad holding effectively modifies or abrogates the common law by recognizing a new common law cause of action for the negligent breach of the duty of confidentiality created by section 381.004(3)(f)....
...dd to the remedies the Legislature expressly provided for when it developed Florida's strategy to confront the HIV/AIDS public health crisis and, as part of that strategy, created the duty of confidentiality for HIV testing. C. Legislative Intent of Section
381.004 The language of section
381.004 does not manifest any intent to create a private claim in negligence. See DeGregorio v. Balkwill,
853 So.2d 371, 373 (Fla.2003) ("Legislative intent is determined primarily from the statute's language.") (citing Hayes v. State,
750 So.2d 1, 3 (Fla.1999)). If the duty of confidentiality created in section
381.004(3)(f) is breached, the individual offender is to be sanctioned administratively or punished criminally as provided by section
381.004(6). Section
381.004(6) provides: (6) PENALTIES....
...in the facility's or professional's respective licensing chapter. (b) Any person who violates the confidentiality provisions of this section and s.
951.27 commits a misdemeanor of the first degree, punishable as provided in s.
775.082 or s.
775.083. §
381.004(6), Fla....
...Two of these amendments specifically address persons who could be prosecuted under this statute and the penalties available. See ch. 89-350, § 6, at 2242, Laws of Fla.; ch. 96-179, § 1, at 448, Laws of Fla. In 1989, the Legislature revised section 381.609(6)(a), which was renumbered in 1991 to 381.004(6)(a), to apply to health care facilities in addition to health care providers....
...[12] *219 However, under the Restatement method of analyzing legislative intent, the court could find that the Legislature "had no specific intent in fact on the issue" of whether to create a private civil remedy. Restatement (Second) of Torts § 874A cmt. d (1979). While the language of section 381.004 does not provide for the creation of a private civil remedy, the language also does not expressly reject the possibility either....
...rcement." Restatement (Second) of Torts § 874A cmt. h (1979). [13] An examination of these factors in this case leads to the conclusion that no basis exists for the court to create a private civil remedy for the breach of confidentiality created in section 381.004. (i) The Nature of Section 381.004 [14] The nature of section 381.004 does not provide a basis for the judiciary to create an additional remedy. The statute is very specific in its regulation of conduct, clearly delineating what actions are prohibited. Section 381.004(3)(f) provides: No person who has obtained or has knowledge of [an HIV] test result pursuant to this section may disclose or be compelled to disclose the identity of any person upon whom a test is performed, or the results of such a test in a manner which permits identification of the subject of the test. . . . This provision very clearly prohibits the disclosure of HIV test results or the identity of any person who receives an HIV test. In other words, section 381.004 imposes a strict duty of confidentiality on individuals who have knowledge of HIV testing....
...The statute does not employ broad general terms that would only acquire specific meaning after the court supplies a remedy for the benefit of individuals receiving HIV tests. Thus, court action is not required to give the statute or the duty the statute creates specific meaning. (ii) The Purpose of Section 381.004 Moreover, the Legislature's purpose in enacting section 381.004 does not lend itself to the judicial creation of a private civil remedy. The Florida Legislature was *220 addressing a public health issue when it created the duty of confidentiality for HIV testing. Section 381.004(1) provides: The Legislature finds that the use of tests designed to reveal a condition indicative of human immunodeficiency virus infection can be a valuable tool in protecting public health....
...The Legislature was looking for ways to encourage HIV testing as a means of protecting public health. The Legislature was not seeking to remedy private harms suffered by specific individuals through the use of monetary damages. From the statement of its purpose in enacting section 381.004, it is clear that the Legislature did not intend to create a private tort remedy, much less that the courts would subsequently create a brand new tort for the negligent disclosure of testing results based on this statute. (iii) Adequacy of Existing Remedies Further, the remedies provided by section 381.004 seem sufficient to effectuate the Legislature's purpose of facilitating HIV testing for the protection of public health. As stated previously, if the duty of confidentiality created in section 381.004(3)(f) is breached, the individual offender is to be sanctioned administratively or punished criminally as provided by section 381.004(6)....
...More particularly, Gracey is distinguishable from Abril for four reasons. First, in Gracey, the Court provided a private cause of action for the breach of a statutory duty using a preexisting tort rather than creating an entirely new cause of action. Second, unlike the statute in Gracey, section 381.004 was enacted as a comprehensive effort to address a critical public health crisis. Third, unlike section 381.004, the statute in Gracey provided no remedy or sanction for a breach of the duty of confidentiality it imposed....
...[4] Our decision in Humana involved a claim for misdiagnosis of HIV/AIDS, and did not involve a claim for breach of confidentiality or unlawful dissemination of confidential information. [5] Unlike Justice Cantero, I am unable to accept the majority's characterization of its holding as establishing that a violation of section 381.004 is merely "evidence of negligence" in an ordinary negligence case. Instead, I read the majority's opinion as replacing the reasonable person standard with the specific statutory duty not to disclose HIV testing results under section 381.004. The majority opinion expressly states that "[s]ection 381.004(3)(f), at a minimum, creates a reasonable standard of care for handling HIV testing results." Majority op....
...from "evidence of negligence"); Prosser and Keeton on the Law of Torts § 36 (W. Page Keeton, et al. eds., 5th ed.1984) (same). [6] In footnote 3 of their Amended Answer Brief, the Abrils explain that "[t]he initial Complaint alleged a violation of Section 381.004. The First Amended Complaint alleges a violation of prevailing professional standards. The only reference to Section 381.004 violations are in some of the expert witness opinions which will not be relied upon in Respondents' cause of action." [7] In Kush, this Court addressed the following certified question of great importance in a medical malpractice case...
...n four years after the negligent diagnosis?" Id. at 415. [8] Specifically, the Second District stated: The complaint filed by the Abrils alleges facts that would be sufficient to establish that Continental Laboratory violated a duty imposed on it by section 381.004 to maintain the confidentiality of HIV test results and to disclose those results only as authorized by law....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 21 I.E.R. Cas. (BNA) 1416, 2004 Fla. App. LEXIS 11341, 2004 WL 1698066
...The department filed a motion to dismiss the complaint on the ground that there was no statutory or common law duty for a laboratory or governmental entity to protect the confidentiality of HIV test results. The department also argued that the complaint should be dismissed because section 381.004, Florida Statutes (Supp.1996), which provides for criminal penalties and certain administrative sanctions for unlawful disclosure of HIV test results, does not authorize a private cause of action for such disclosure....
...The trial court granted the motion to dismiss, concluding that "there has not been established in the State of Florida any common law or statutory duty of care which requires a governmental entity to protect the confidentiality of HIV test results." The trial court also concluded that section 381.004 "provides criminal penalties for improper disclosure of HIV test results[] but does not authorize a private cause of action for such disclosure." II....
...barred by the impact rule. The Abrils contend that the impact rule is not applicable to their claims which are based on Continental Laboratory's negligent breach of its duty to maintain the confidentiality of Mrs. Abril's test results. III. ANALYSIS Section 381.004 contains a series of provisions governing HIV testing. Section 381.004(3)(f) provides that, subject to certain exceptions not pertinent here, "the identity of any person upon whom [an HIV] test has been performed and [the] test results are confidential" and that "[n]o person who has obtained or has knowledge of a test result pursuant to [section 381.004] may disclose ......
...the identity of any person upon whom a test is performed[] or the results of such a test in a manner which permits identification of the subject of the test" except as specifically authorized by law. Penalties for the violation of the provisions of section 381.004 are set forth in section 381.004(6). Under section 381.004(6)(a), "licensed health care provider[s]" violating the statute are subject to "disciplinary action." Under section 381.004(6)(b), "[a]ny person who violates the confidentiality provisions" of the statute "commits a misdemeanor of the first degree." The statute makes no mention of private causes of action arising *209 from violations of its provisions....
...The department makes no argument that the claims asserted in the instant case do not satisfy the requirements set forth in Restatement (Second) of Torts section 286 (1965). The complaint filed by the Abrils alleges facts that would be sufficient to establish that Continental Laboratory violated *210 a duty imposed on it by section 381.004 to maintain the confidentiality of HIV test results and to disclose those results only as authorized by law....
...ourt has weighed the merits of applying or not applying the rule to particular circumstances. There are no cases directly addressing the application of the impact rule to a claim arising from the alleged violation of the confidentiality provision of section 381.004(3)(f)....
...n by a *212 psychotherapist should likewise not be subject to the impact rule. In the absence of a precedent from the supreme court directly addressing the application of the impact rule to claims for violations of the confidentiality requirement of section 381.004(3)(f), we conclude that the reasoning of the Gracey decision compels the conclusion that the impact rule should not be applied to such claims....
...involved" in Gracey. In addition, the apparent "policy concerns" identified by Rowell as relevant to providing an exception from the impact rule are the same in this case as they were in Gracey. The confidentiality provisions of section
491.0147 and section
381.004(3)(f) serve the same purpose: to protect individuals from the unwarranted disclosure of highly sensitive information concerning their personal lives....
...The harm flowing from a violation of confidentiality by a psychotherapist is closely akin to the harm flowing from a breach of confidentiality with respect to an HIV test. "The only reasonable and logical injuries generally flowing from a violation" of either section
491.0147 or section
381.004(3)(f) "are emotional in nature." Gracey,
837 So.2d at 357....
...Similarly, the analogy to claims for invasion of privacy and defamation applies as much to claims for breaches of confidentiality with respect to HIV tests as it does to claims for breaches of confidentiality by a psychotherapist. Finally, whether a claim arises under section
381.004(3)(f) or section
491.0147, the emotional injury that results from the breach of confidentiality meets the standard of "foreseeability and gravity" of harm discussed in Rowell,
850 So.2d at 478, as a basis for not applying the impact rule. And "countervailing policy concerns"that is, policy concerns militating against establishing an exception from the impact ruleare no more apparent with *213 respect to section
381.004(3)(f) than with respect to section
491.0147. Rowell,
850 So.2d at 478. In short, there is no principled basis for barring civil actions based on a breach of the statutory duty in section
381.004(3)(f) if civil actions based on a violation of section
491.0147 are not barred....
...his decision passes is one of great public importance. IS FLORIDA'S IMPACT RULE APPLICABLE IN A CASE IN WHICH IT IS ALLEGED THAT THE INFLICTION OF EMOTIONAL INJURIES HAS RESULTED FROM A CLINICAL LABORATORY'S BREACH OF A DUTY OF CONFIDENTIALITY UNDER SECTION 381.004(3)(f), FLORIDA STATUTES (SUPP.1996), WITH RESPECT TO HIV TEST INFORMATION? V....
...olation of any provision of" the statute or the rules adopted thereunder. Under section 483.23(1)(b), offenses under 483.23(1)(a) are "misdemeanor[s] of the second degree." Since we have determined that a duty to maintain confidentiality pursuant to section 381.004(3)(f) is applicable to this case, we need not address the application of the Florida Clinical Laboratory Law....
