SCOVT recognizes a common-law private right of action for damages resulting from the unjustified disclosure to a third party of information obtained by medical personnel during treatment , and affirms summary judgment that threat of imminent and serious harm to plaintiff and the public, under HIPAA, justified medical provider’s disclosure to third persons of information obtained during treatment.

Elizabeth Lawson v. Patricia Halpern-Reiss and Central Vermont Medical Center, 2019 VT 38 [filed 5/17/2018]

EATON, J. In this appeal, we are asked to recognize a common-law private right of action for damages resulting from the unjustified disclosure to a third party of information obtained by medical personnel during treatment. Plaintiff alleges in her lawsuit that she incurred damages as the result of an emergency room nurse informing a police officer that she was intoxicated, had driven to the hospital, and was intending to drive home. The trial court granted defendant Central Vermont Medical Center (CVMC) summary judgment based on its determination that nothing in the record supported an inference that the nurse’s disclosure of the information was for any reason other than her good-faith concern for plaintiff’s and the public’s safety.

In this opinion, we recognize a common-law private right of action for damages based on a medical provider’s unjustified disclosure to third persons of information obtained during treatment. Like the trial court, however, we conclude that CVMC was entitled to judgment as a matter of law because, viewing the material facts most favorably to plaintiff and applying the relevant law we adopt today, we conclude that no reasonable factfinder could determine that the disclosure was for any purpose other than to mitigate the threat of imminent and serious harm to plaintiff and the public. Accordingly, we affirm the trial court’s judgment.

HIPAA regulations permit “disclosures to avert a serious threat to health or safety.” 45 C.F.R. § 164.512(j). In relevant part, the regulation permits a “covered entity” to disclose “protected health information” as long as two conditions are met: the covered entity has a good-faith belief that the disclosure is “necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public,” and the disclosure is “to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.” Id. § 164.512(j)(1)(i). The regulation further provides that a covered entity disclosing information pursuant to this exception is “presumed to have acted in good faith with regard to a belief described in” the exception. Id. § 164.512(j)(4).

The presumption of good faith in HIPAA, § 164.512(j)(4), which we adopt for purposes of analyzing the common-law tort we recognize in this decision, shifts the burden to plaintiff to make some showing that the nurse’s disclosure that plaintiff had driven to the hospital and was blatantly intoxicated was not made in good faith. Plaintiff failed to satisfy her burden

Divided Court affirms suppression under Chapter I, Article 11 of the Vermont Constitution, of fruits of warrantless “open fields” search, despite argument that purpose of search was to enforce fish and game regulations and defendant’s “no trespass” postings did not comport with Vermont’s hunting posting statute.

State v. Ronald Dupuis, 2018 VT 86 [filed August 17, 2018]

ROBINSON, J. In State v. Kirchoff this Court held that Chapter I, Article 11 of the Vermont Constitution protects against warrantless searches of “open fields” when the landowner objectively demonstrates his or her intent for privacy through actions such as posting “no trespass” signs. 156 Vt. 1, 10, 587 A.2d 988, 994 (1991). This case now calls on us to examine whether Article 11 provides the same protection when the warrantless search is for the purpose of enforcing hunting laws and the landowner has not strictly abided by Vermont’s regulations for posting against hunting. The State appeals from the trial court’s grant of defendant Ronald Dupuis’s motion to suppress evidence arising from a game warden’s warrantless search of his property, arguing that because defendant’s “no trespass” postings did not comport with Vermont’s hunting posting statute, he enjoyed no expectation of privacy. We disagree and affirm.

The State’s argument follows two steps. First, because defendant did not comply with § 5201 by failing to specify in his signs that hunting was prohibited, and by failing to record the signs with his town clerk for that calendar year,  members of the public could legally enter his property in order to hunt, notwithstanding his general notices against trespass. Second, because hunters could lawfully enter his property for hunting purposes, it follows that he had no reasonable expectation of privacy that would prevent game wardens seeking to enforce state fish and game laws from entering his property.

 The foundation of our analysis rests on the constitutional requirement that police get a warrant before searching most private property. That this requirement can apply to open fields when a property owner has taken sufficient steps to exclude others is well established. We reject the State’s suggestion that the Vermont constitutional provisions concerning hunting, fishing, and trapping create an exemption to the warrant requirement for game wardens investigating hunting violations on private property.

  

It does not follow that a landowner who has effectively put strangers on notice that they are not welcome on the private property surrenders the corresponding reasonable expectation of privacy by failing to take the more burdensome specific steps required to cut off the narrower right of access afforded to hunters. Defendant’s failure to provide notice satisfying the statutory requirements for posting against hunters does not constitute willing exposure of his property to the public—or to law enforcement.

CARROLL, J., dissenting.  The question in this case is not one of fact—whether the landowner put in place sufficient tangible indications such that law enforcement should have known a warrant was required for entry—but one of law—whether posting against general trespassing, but not against entry for purposes of hunting or fishing, is sufficiently indicative of a landowner’s reasonable expectation of privacy to preclude all law enforcement entry regardless of the purpose of the entry. Vt. Const. ch. II, § 67 reserves a right for Vermonters to access privately held lands for the purposes of taking fish and game under regulations promulgated by the Commissioner of Fish and Wildlife as long as those lands are not “inclosed.” It is questionable whether the objective inquiry in the reasonable expectation of privacy test is satisfied here where our Constitution reserves a right of entry onto private lands for persons engaged in taking wild fish and game and defendant took no action to exclude those engaged in the activity. And if the objective prong of the reasonable expectation of privacy test is not met, then the test in general is not met, and a warrant is not required for law enforcement entry. I believe that a rule granting the State the ability to enforce fish and game regulations where the public is, in fact, permitted to hunt and fish is simple logic I am authorized to state that Justice Eaton joins this dissent.