Tuesday, December 19, 2006, 3:24 PM

COA Revives NIED Claim Against Psychiatrist For Alleged Negligence In Giving Out Access Code

Today the COA reversed a 12(b)(6) dismissal of a negligent infliction of emotional distress (NIED) claim against a psychiatrist who owns a psychiatric practice where Plaintiff received treatment. The case is Acosta v. Byrum, et al.

Plaintiff alleged that the psychiatrist allowed his office manager to use his (the psychiatrist's) confidential code to access medical records, that the office manager used that code to retrieve confidential psychiatric and medical records on plaintiff, and that the office manager then disclosed this information to third parties out of animus to plaintiff, causing plaintiff emotional distress. Plaintiff alleged that by providing his access code to the office manager, the psychiatrist was negligent and should've known that this negligence would cause her emotional distress.

The trial court (Rusty Duke) dismissed. The COA reversed, holding that the bare allegations in plaintiffs' complaint were sufficient to state a NIED claim. (The COA also held that because the complaint didn't allege med mal by the psychiatrist--her claim didn't arise out of his provision of patient care but instead an "administrative act"--plaintiff wasn't required to comply with Rule 9(j).)

Lesson: Advise your clients to be particularly careful when securing access to potentially embarassing information (e.g., medical information, HR records).

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