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Donna Yeager, As Executrix of the Estate of Stacey Clise v. Daniel Dickerson and Stephen Dallas Appellees

January 11, 2013

DONNA YEAGER, AS EXECUTRIX OF THE ESTATE OF STACEY CLISE
APPELLANT
v.
DANIEL DICKERSON AND STEPHEN DALLAS APPELLEES AND ERIC DETERS AND DONNA YEAGER, AS EXECUTRIX OF THE ESTATE OF STACEY CLISE
APPELLANTS
v.
DANIEL DICKERSON AND STEPHEN DALLAS
APPELLEES AND DANIEL DICKERSON
CROSS-APPELLANT CROSS-APPEAL FROM GRANT CIRCUIT COURT
v.
DONNA YEAGER, AS EXECUTRIX OF THE ESTATE OF STACEY CLISE AND ERIC DETERS CROSS-APPELLEES AND
STEPHEN DALLAS CROSS-APPELLANT CROSS-APPEAL
v.
ERIC DETERS AND DONNA YEAGER, AS EXECUTRIX OF THE ESTATE OF STACEY CLISE
CROSS-APPELLEES



APPEAL FROM GRANT CIRCUIT COURT HONORABLE STEPHEN L. BATES, JUDGE ACTION NO. 07-CI-00288 APPEAL FROM GRANT CIRCUIT COURT HONORABLE ROBERT W. MCGINNIS, JUDGE ACTION NO. 07-CI-00288

The opinion of the court was delivered by: Stumbo, Judge:

RENDERED: JANUARY 11, 2013; 10:00 A.M.

TO BE PUBLISHED

OPINION

AFFIRMING IN PART, REVERSING IN PART AND VACATING

BEFORE: NICKELL, STUMBO AND THOMPSON, JUDGES.

HONORABLE ROBERT W. MCGINNIS, JUDGE ACTION NO. 07-CI-00288 HONORABLE ROBERT W. MCGINNIS, JUDGE ACTION NO. 07-CI-00288

These appeals arise from the same action below and were heard together by the Court. The primary issue presented by these appeals is whether, under Kentucky Revised Statute (KRS) 446.070, Donna Yeager has a right of action against the Appellees, both attorneys, who disclosed medical information during the course of a child custody hearing when Yeager alleges a violation of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). After careful review of the briefs presented and the law, we hold that KRS 446.070 does not give Yeager a right of action where a Federal statute preempts state statutes and does not expressly provide such a right. Further, the Appellees are not "covered entities" under HIPAA to which its regulations would apply; therefore, the Court affirms the circuit court's decisions regarding the primary issues. The circuit court also imposed sanctions on defense counsel pursuant to Kentucky Civil Rule 11. We find these sanctions were inappropriate and we reverse and vacate that award.

Statement of Facts

Donna Yeager, as the Executrix of the Estate of Stacy Clise, appealed a decision by the Grant Circuit Court in favor of the appellees, Daniel Dickerson and Stephen Dallas. The court granted a motion for summary judgment, pursuant to Rule 56.03, dismissing Yeager's claims of wrongful death, intentional infliction of emotional distress, negligence, invasion of privacy and HIPAA violations. Yeager appeals claiming there are genuine issues of material fact not yet determined.

During a hearing to determine the guardianship of a minor child, the mother, Stacy Clise, was questioned by Appellee/Defendant attorney Daniel Dickerson (hereinafter "Attorney Dickerson") who represented her ex-husband, Richard Clise, during the same hearing. Attorney Dickerson was joined by co-counsel and Appellee/Defendant Stephen Dallas (hereinafter "Attorney Dallas"). Attorney Dickerson questioned Ms. Clise pertaining to her medical history and treatment including questions about the type, frequency, and quantity of prescription drugs she was taking. During the course of the examination, Attorney Dallas utilized medical records regarding Ms Clise's medical history. The attorneys stated that they received the records from Mr. Clise who found them after Ms. Clise abandoned them at the residence the two shared prior to the divorce. Ms. Clise's attorney, Eric Deters, informed the court that his client had not authorized the release of her medical records to Mr. Clise or his attorneys. He also stated, "it was possible they were violating the Health Insurance Portability and Accountability Act." Appellees admit to disclosing the medical information without Ms. Clise's authorization or consent.

The line of questioning continued and references to Ms. Clise's medical condition and use of medication were used throughout the hearing to call into question her suitability for custody of a child recently severely injured from a school bus accident. Attorney Dickerson did not introduce Ms. Clise's medical records into evidence at the hearing. The Guardian ad litem testified that Ms. Clise's use of prescription drugs reflected negatively on her ability to act as guardian to her minor son and recommended that Mr. Clise retain guardianship. On the day following the hearing, Ms. Clise died due to an overdose of Oxycodone. Subsequently, Yeager, the mother of Ms. Clise, filed a suit against the Appellees alleging a violation of HIPAA on behalf of Ms. Clise's Estate.

Discussion

Whether the Court should reverse the decision of the circuit court depends upon; (1) whether the Appellees or their former client are among the "covered entities" to which HIPAA applies; (2) whether HIPAA reserves a private right of action through which Yeager can recover; (3) and if so can a court hold the Appellees liable. Congress passed HIPAA to prevent the dissemination of health information stored electronically without the consent of patients. Rules and regulations were promulgated by the Department of Health and Human Services to ensure the privacy of patients' medical information. Using this authority, the Secretary of Health and Human Services designated three covered entities which were prohibited from disclosing protected health information, whether "oral or recorded in any form or medium," unless the entities comply with the Secretary's rules and regulations. A violation occurs where a covered entity or business associate to a covered entity discloses individually identifiable health information ...


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