Lawyer: Affirmed $1.4M judgment against Walgreen sets HIPAA precedent

Dave Stafford for www.theindianalawyer.com

A Marion County jury verdict affirmed Friday by the Indiana Court of Appeals upholds a $1.4 million verdict for a Walgreen pharmacy customer whose prescription information was provided to a third party and sets a national precedent, according to the lawyer who argued the case.

“This is the first published court decision in the nation in which a healthcare provider has been held liable for HIPAA (Health Insurance Portability and Accountability Act) violations committed by its employees,” plaintiffs attorney Neal Eggeson said of the COA decision in Walgreen Co. v. Abigail E. Hinchy, 49A02-1311-CT-950.

Abigail Hinchy’s prescription history was provided to her ex-boyfriend Davion Peterson, who had become involved in a relationship with Walgreen pharmacist Audra Winters. Winters denied disclosing Hinchy’s records to anyone but admitted she had accessed Hinchy’s records.

The trial court delivered a novel judgment the appeals panel reviewed during oral arguments last month. The appeals court let stand the verdict that found Walgreen liable for negligent supervision and retention, invasion of privacy and on the basis of respondeat superior.

In a 23-page opinion, Judge John Baker wrote for the panel that Withers “breached one of her most sacred duties by viewing the prescription records of a customer and divulging the information she learned from those records to the client’s ex-boyfriend. … We are loath to disturb jury verdicts and decline to do so in this case.”

Walgreen had appealed the jury verdict on four bases – that it was entitled to summary judgment or a directed verdict; that Hinchy’s counsel had engaged in improper ex parte communications by filing a brief under seal and failing to provide a copy to Walgreen; the jury was improperly instructed; and that the jury’s verdict was excessive. The court found no reversible error.

“By choosing to appeal, Walgreen has now created a precedent – one which may be used and relied upon by courts throughout the nation – confirming that privacy breach victims may hold employers accountable for the HIPAA violations of their employees,” Eggeson said in an email.

Attorneys representing Walgreen indicated they will seek an appeal.