## Facts

- Janet L. Herman, a Nestlé USA, Inc. employee, received non-work-related medical treatment and testing at the Cleveland Clinic’s Solon Family Health Center in March and April 2003 and had independent health coverage.
- After a March 11, 2003 visit with Dr. Richard Kratche, the Clinic sent written results to Herman’s employer, allegedly treating the visit as workers’ compensation-related despite its non-work nature.
- Herman complained about the employer disclosure; a Clinic administrator acknowledged an error and changed the account designation from workers’ compensation to Herman’s personal/family account.
- On April 2, 2003, Herman returned for a mammogram screening; the results and billing were again designated as workers’ compensation-related and sent to Nestlé without Herman’s authorization.
- Herman alleged additional, repeated communications to Nestlé containing confidential medical information despite her prior complaint.
- Herman sued Dr. Kratche and the Cleveland Clinic asserting claims including unauthorized disclosure/negligence, invasion of privacy, and intentional infliction of emotional distress (IIED).
- The trial court granted defendants summary judgment on all claims and denied defendants’ motion for judgment on the pleadings; Herman later voluntarily dismissed Dr. Kratche, leaving the Clinic as the main appellee.

## Issues

1. Whether the trial court properly granted summary judgment to the Cleveland Clinic on claims based on unauthorized disclosure of confidential medical information and invasion of privacy.
2. Whether the trial court properly granted summary judgment to the Clinic on Herman’s IIED claim.
3. Whether the trial court erred in denying the Clinic’s motion for judgment on the pleadings under Ohio Civ.R. 12(C).

## Decision

- Affirmed summary judgment for the Clinic on the IIED claim.
- Reversed summary judgment for the Clinic on Herman’s remaining claims grounded in unauthorized disclosure/invasion of privacy (and related negligence theories) because genuine issues of material fact existed.
- Remanded for further proceedings on the surviving claims.
- Affirmed, on cross-appeal, the trial court’s denial of the Clinic’s motion for judgment on the pleadings.

## Legal Principles

- Summary judgment is proper only when no genuine dispute of material fact exists, the movant is entitled to judgment as a matter of law, and evidence is construed in favor of the nonmovant.
- Ohio recognizes privacy tort theories that can reach unauthorized disclosure of confidential medical information (including public disclosure of private facts and wrongful intrusion), and repeated employer disclosures can present triable questions on offensiveness and wrongfulness.
- IIED requires conduct that is extreme and outrageous, exceeding all possible bounds of decency, plus intent/foreseeability of serious emotional distress and proof of serious distress; erroneous or negligent disclosures may be actionable under other tort theories yet still fail IIED’s heightened threshold.
- Judgment on the pleadings is appropriate only when, accepting the complaint’s factual allegations as true and drawing reasonable inferences for the nonmovant, the movant is entitled to judgment as a matter of law; allegations of repeated unauthorized transmissions of medical information may suffice to state privacy-based claims.

## Conclusion

The appellate court held that evidence of repeated, unauthorized transmissions of a patient’s medical information to her employer created fact questions barring summary judgment on privacy-based and related claims, while the same conduct did not meet Ohio’s stringent “extreme and outrageous” requirement for IIED; the Clinic also was not entitled to dismissal on the pleadings.


Herman v. Kratche, No. 87239, 2006 WL 3240680 (Ohio Ct. App. Nov. 9, 2006)