EMS Providers and Wisconsin’s Law of Privacy

From schoberlaw.com

Newsletter
EMS Providers and Wisconsin’s Law of Privacy
By Barry W. Szymanski
Nov 15, 2005, 14:22

Wisconsin’s Law of Privacy

by: Attorney Barry W. Szymanski

The very recent case of Pachowitz v. Ledoux, released on May 28, 2003 from the Wisconsin Court of Appeals, is a case which you should pay special attention to. It affects every EMS provider in Wisconsin.

In this case, an emergency medical technician (EMT) employed by a Wisconsin volunteer fire department provided emergency medical attention to a patient. Following the EMS call, the patient filed a lawsuit alleging that the EMT invaded her privacy and violated Wisconsin’s privacy law by disclosing to a third party the reason that the patient required medical attention.

The jury found favor of the patient and awarded her $3,000.00 in compensatory damages, and, as set out in Wisconsin’s privacy statute, the trial court awarded the patient $30,460.00 in attorney fees, for a total award of $33,460.00.

The matter proceeded to the Wisconsin Court of Appeals.

FACTS AND PROCEDURAL HISTORY

The EMT was a member of a volunteer fire department. On April 21, 2000, she and three other members of the department responded to an emergency 911 call at the patient’s residence regarding an overdose or possible overdose.

Upon arriving at the patient’s residence, the EMS medical team discovered the patient unresponsive and with poor vital signs. At her husband’s request, the patient was transported to a local hospital. Later, the EMT returned home and spoke to a friend to discuss the fact that she had assisted in transporting the patient to the hospital emergency room for possible overdose.

Prior to the EMS response, the EMT had never met the patient. However, about two weeks prior to the incident, the EMT was socializing with a group of people who spoke about the patient and her medical condition. During the conversation, the EMT learned that the friend worked with the patient at her place of employment (another hospital). The EMT gained the impression that the friend and the patient had a very close relationship.

The EMT testified that she placed the telephone call to the friend after the EMS response because she was concerned about the patient and thought the friend could possibly be of assistance to the patient. Following the EMT’s telephone call, the friend drove to the patient’s workplace, where she revealed that an ambulance responded to the patient’s home and discussed the patient’s situation with other staff.

On December 8, 2000, the patient filed this action alleging that the EMT had defamed her, violated her privacy by publicizing information regarding her medical condition, and made untrue statements indicating that she had attempted suicide. The patient alleged that she had been and was continuing to undergo medical care due to bodily illness and that she had suffered a “reaction to medication”, which was the reason for the call for EMS care.

The volunteer fire department tried to defend itself by stating to the court that the EMT’s communication to the friend was not made within the scope of her employment with the volunteer fire department.

The EMT personally filed a motion with the trial court to dismiss the patient’s lawsuit, contending that her statements to the friend did not satisfy the “publicity” element of an invasion of privacy claim under the Wisconsin privacy law. The EMT also argued that she had not acted recklessly or unreasonably in contacting the friend regarding the patient’s care.

The court rejected the argument that her dissemination of information to only one person, the friend, did not satisfy the “publicity” element of an invasion of privacy claim, and the court held that the matter should be heard before a jury which would decide the particular circumstances of the case and the friend’s “character.”

Thereafter, the matter proceeded to a jury trial. The jury returned a verdict answering “yes” to the following question:

“Did the EMT violate the patient’s right of privacy by publicizing a matter concerning her private life, namely that she had been taken from her home to the hospital by emergency personnel because of a possible overdose?”

The jury awarded the patient $3,000 in compensatory damages.

Since the patient’s total recovery exceeded an offer of judgment, the court awarded the patient double costs and 12% interest. Therefore, the court entered its final judgment in favor of the patient in the amount of $37,909.86.

THE COURT OF APPEALS

The court of appeals then wrote its decision. It first addressed the invasion of privacy and the issue of publicity, specifically the EMT’s argument that Wisconsin’s Privacy law does not apply in this case because the EMT’s statement to one person, the friend, was not sufficient to constitute “publicity.”

Publicity Invasion of privacy actions are governed by Wisconsin’s privacy law, which provides relevant part:

[1] The right of privacy is recognized in this state. One whose privacy is unreasonably invaded is entitled to the following relief:…

[b] Compensatory damages based either on plaintiff’s loss or defendant’s unjust enrichment; and

[c] A reasonable amount for attorney’s fees.

[2] In this section, “invasion of privacy” means any of the following:…

[c] Publicity given to a matter concerning the private life of another, of a kind highly offensive to a reasonable person, if the defendant has acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved, or with actual knowledge that none existed. It is not an invasion of privacy to communicate any information available to the public as a matter of public record.

In order to establish a cause of action for invasion of privacy under Wisconsin’s privacy law, a plaintiff must prove:

[1] A public disclosure of facts regarding the plaintiff;

[2] the facts disclosed are private facts;

[3] the private matter made public is one which would be highly offensive to a reasonable person on ordinary sensibilities; and

[4] the defendant acted either unreasonably or recklessly as to whether there was a legitimate public interest in the matter, or with actual knowledge that none existed.

The Wisconsin Court of Appeals held that “publicity,” for purposes of Wisconsin’s Privacy law, is defined to mean that “the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded substantially certain to become one of public knowledge.” The court continued to state that the disclosure of private information to one person or to a small group satisfies the publicity element of an invasion of privacy claim. The key depends upon the particular facts and the nature of plaintiff’s relationship to the audience who received the information.

The court stated that in this case, the EMT disclosed the patient’s private information to the friend, who the EMT knew was one of the patient’s fellow employees at her workplace (which was a hospital different from the EMS initial transport hospital). In fact, the request of the patient’s husband to the EMTs that the patient (his wife) be transported to a different hospital (other than where she worked) supports an inference that the patient wanted to avoid disclosure of her need for emergency medical care to her fellow employees. Approximately two weeks prior to the April 21 incident while socializing with the friend and other individuals, the EMT heard the friend discuss the patient’s private affairs at length. Thus the EMT was on notice to the friend’s “loose lips.” The Wisconsin Court of Appeals held that under such circumstances the law of invasion of privacy is not served by immunizing the EMT. Indeed, the jury found that the EMT’s disclosure of private information to the friend violated the patient’s right to privacy.

The Wisconsin Court of Appeals found that the patient had a special relationship with her co-employees, including the friend, and that disclosure of personal and private information about the EMS call would embarrass the patient. The evidence further supports an inference that the EMT should have appreciated the risk that the friend would further disclose the patient’s private information. As such, the court held that the evidence supported the jury’s answer that the EMT had publicized private medical information concerning the patient.

RECKLESS OR UNREASONABLE CONDUCT

The Court of Appeals then addressed reckless or unreasonable conduct in its discussion of the invasion of privacy issue. The court held that there was credible evidence to support the jury’s finding that the EMT acted unreasonably or recklessly in disclosing the patient’s private information to the friend.

First, the EMT testified that she was advised of the confidential nature of patient information in her EMT training sessions and that she was aware prior to the incident on April 21, 2000, that information obtained as an EMT must be confidential.

Second, the EMT testified that prior to calling the friend she did not “stop and think about whether the information was confidential.”

Third, the EMT was on notice as to the friend’s propensity to discuss and reveal personal and private information concerning the patient.

The court held that the jury’s verdict reflects its finding that the patient’s medical information was not a legitimate public interest and that the EMT acted unreasonably in disregarding her EMT training and in failing to consider her patient’s right to be confidentiality prior to contacting the friend.

ATTORNEY FEES

The Wisconsin Court of Appeals concluded that the patient’s attorney fees of $30,406.00 were reasonable, in part because the patient sued the EMT under Wisconsin’s privacy law, which specifically provides for compensatory damages and “a reasonable amount for attorney fees.”

FURTHER RESEARCH

As with all law, do not rely on summaries, but review the actual law. Wisconsin’s privacy law is sec. 895.50 of the Statutes. The case of Timothy A. Pachowitz, as Special Administrator of the Estate of Julie Lynn Pachowitz, Plaintiff-Respondent, v. Katherina R. LeDoux, Tess Corners Volunteer Fire Department and Continental Western Insurance Company, Defendants-Appellants, ABC Insurance Company, Defendant. Court of Appeals of Wisconsin. No. 02-2100. Opinion released: May 28, 2003. Opinion Filed: May 28, 2003.

Legal Brief is a newsletter prepared solely for general EMS information and recognition purposes and is not intended to be a detailed explanation of the law. Barry W. Szymanski is a full time Attorney and an EMS consultant serving throughout the State of Wisconsin, having previously served as an EMT. He is a frequent speaker on EMS issues and is currently the lawyer for the Wisconsin EMS Association.