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Greene v. Tinker

Supreme Court of Alaska

August 15, 2014

KAREN GREENE, Appellant,

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[Copyrighted Material Omitted]

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Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Bethel, Charles W. Ray, Jr., Judge. Superior Court No. 4BE-11-00323 CI.

Mark Lewis Nunn, Sr., Fairbanks, for Appellant.

Myron Angstman, Angstman Law Office, Bethel, for Appellee.

Before: Fabe, Chief Justice, Winfree, Stowers, and Bolger, Justices. [Maassen, Justice, not participating.]


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FABE, Chief Justice.


A patient at a health clinic learned that a clinic employee, who was not authorized to access the patient's medical record, had discussed the patient's pregnancy with a clerical worker at the clinic. In a complaint to the employee's supervisor, the patient accused the clinic employee of breaching medical confidentiality.

Shortly afterward, the clinic operator fired the employee, citing a breach of confidentiality. The employee then sued the patient for defamation. The patient counterclaimed for invasion of privacy and abuse of process, the latter claim being based on the employee's filing and withdrawing an earlier petition for a protective order. At some point the clinic investigated the patient's complaint and determined that it was unsubstantiated. It was later revealed that the patient herself was the source of the employee's knowledge about the patient's pregnancy.

At trial the patient claimed that she had an absolute privilege to accuse the employee of breaching medical confidentiality. The superior court rejected that argument and determined that the patient had only a conditional privilege, and later instructed the jury accordingly. The superior court also denied the patient's motion for summary judgment and made several challenged evidentiary rulings.

After a three-day jury trial, the superior court granted a directed verdict on the patient's abuse-of-process counterclaim. The jury returned a verdict for the employee on her defamation claim, awarding one dollar in nominal damages; the jury rejected the patient's counterclaim of invasion of privacy. Finding the employee to be the prevailing

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party, the superior court awarded her partial attorney's fees.

The patient appeals the superior court's ruling on conditional privilege, its denial of her motion for summary judgment, and its evidentiary rulings. She also alleges errors in the superior court's jury instructions, in its decision to grant a directed verdict on her abuse-of-process counterclaim, and in its award of attorney's fees to the employee. She claims various violations of her state and federal constitutional rights.

We conclude that the superior court did not err in any of its legal or evidentiary rulings or in its instructions to the jury, and we therefore affirm the superior court in all respects.


A. Facts

Beverly Tinker and Karen Greene are from the community of Pilot Station. The two are distantly related. There is a history of animosity between Greene and Tinker and between their respective families.

In 2007 Tinker improperly accessed Greene's medical file at the Pilot Station Health Clinic, where Tinker was employed and where Greene was a patient. Tinker claimed she was merely looking up an appointment date for Greene and that she shared the appointment information with Rose Zacharof, a clerical worker at the clinic. According to Greene, Tinker was looking at the file because she was trying to discover medical information about Greene.

Greene filed a complaint about this incident with the clinic operator, the Yukon-Kuskokwim Health Corporation (YKHC). YKHC reprimanded Tinker and gave her the opportunity to participate in a " performance improvement program" addressing confidentiality requirements; the alternative was termination of her employment.[1] Following the incident, Greene requested that YKHC ensure that Tinker not have access to her medical records in future; YKHC explicitly directed Tinker never to look at Greene's records again.

In October 2009 William Schreiner, an official of YKHC, attended a meeting of the local tribal government, the Pilot Station Traditional Council, to address community concerns about breaches of confidentiality that had occurred at the Pilot Station Health Clinic. Greene insists that Schreiner was there to assuage concerns about Tinker specifically; the meeting minutes can be read as indicating this, but are somewhat ambiguous. In any event, Schreiner promised the meeting attendees that any further breach of confidentiality would result in the termination of the staff member responsible.

The events leading to this case took place in the spring of 2011. At that time, Greene was in the early stages of pregnancy, as was Tinker's sister, Candace Heckman.[2] Greene visited the Pilot Station Health Clinic for prenatal care. According to Greene, at her first prenatal visit she asked a YKHC staff member to ensure that Tinker not learn of her pregnancy, and in particular that Tinker not learn of her due date. In addition to Greene's concerns about Tinker's unauthorized access to her medical file in 2007, Greene and her husband were especially solicitous of keeping Greene's pregnancy private because of a miscarriage that had occurred during the early stages of a previous pregnancy.

In March 2011, when Greene was approximately nine weeks pregnant, Rose Zacharof, the clinic clerical worker, informed Greene that on a recent day when Zacharof and Tinker were working alone at the clinic, Tinker had told Zacharof that Greene was pregnant and had remarked that Greene's due date was the same Heckman's. Greene

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was troubled that Tinker apparently knew her due date, believing that Tinker had learned the information by looking at Greene's medical file. Greene went to the clinic and confronted Tinker, asking Tinker how she knew of her pregnancy and due date. Tinker refused to speak with Greene about the issue and directed Greene to speak with her supervisor. According to Greene, Tinker's response -- referring Greene to a supervisor rather than explaining how she had learned of Greene's pregnancy and due date -- persuaded Greene that Tinker had learned the information at work. On March 25, 2011, Greene filed a second complaint with the clinic; she mentioned Tinker's confidentiality breach in 2007 and strongly implied that Tinker had now repeated that misconduct.

Tinker later testified that she did in fact speak with Zacharof about Greene's pregnancy and due date, but she denied that she ever looked at Greene's medical file after the 2007 incident. According to Tinker, the news of Greene's pregnancy and due date had reached her through a gossip chain that began with Greene herself. Tinker said she learned the information from her sister, Heckman, and that Heckman had heard it from Teresa Paukan, a mutual acquaintance of Tinker and Greene. Tinker's account, corroborated by Paukan at trial, was that in February 2011 Greene told Paukan that she was pregnant while Greene and Paukan were attending a basketball game in Pilot Station. After Paukan heard the news from Greene, Paukan shared it with Heckman, who was also at the basketball game; Heckman then told Tinker. The two sisters then discussed the possibility that Greene and Heckman might have the same due date, which they thought remarkable because Greene and Heckman had apparently given birth on the same date in 2009.[3]

Greene testified that she received no response to her March 25, 2011 complaint to YKHC and in early April 2011 decided to take the matter to the Pilot Station Traditional Council. Greene attended several meetings of the tribal council, which according to Tinker was dominated by members of Greene's extended family. Greene read a letter at one meeting in which she accused Tinker of breaching confidentiality. Others in attendance at one of the meetings spoke of similar concerns about Tinker. On April 26, 2011, the tribal administrator sent a letter to YKHC requesting a meeting with Schreiner to address these renewed allegations of breaches of confidentiality at the clinic.

In early May 2011 Tinker sought a protective order against Greene, claiming that Greene was stalking her. Tinker complained in her petition about Greene's confronting her at the clinic, about Greene's speaking about her at the tribal council, and about Greene's complaint to YKHC in 2007. According to Greene, Tinker sought this protective order to intimidate Greene and others in the community who might complain about breaches of confidentiality. Tinker, on the other hand, claimed that the protective order was necessary because Greene was damaging Tinker's professional reputation. A magistrate judge found probable cause that Greene had committed domestic violence [4] and granted Tinker an ex parte protective order on May 10, 2011. A hearing for a long-term protective order was scheduled, but Tinker withdrew her petition in early June in anticipation of filing the present lawsuit; it appears that the scheduled hearing did not take place.[5]

On June 27, 2011, YKHC terminated Tinker's employment, citing violation of patient confidentiality. Whether the violation of confidentiality alleged by Greene played a role

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in Tinker's termination is unclear, but it seems that the two events were unrelated. Tinker initially claimed that Greene's complaint was the cause of her firing; her discovery responses suggested that she believed she was discharged for that reason. But Tinker later withdrew that contention, evidently because she was actually fired for a breach of confidentiality relating to another patient. YKHC investigated Greene's complaint against Tinker and determined that the allegation was unsubstantiated. Some time later, YKHC deemed Tinker eligible to be rehired. Whether that change reflects Tinker's being cleared of any wrongdoing was disputed at trial.[6]

B. Proceedings

1. Tinker's complaint and Greene's answer and counterclaims

On August 9, 2011, approximately six weeks after Tinker's termination by YKHC, Tinker filed a lawsuit against Greene for defamation and for intentional interference with contractual relations. In her complaint Tinker asserted that Greene's statements constituted defamation per se; Tinker also pleaded special damages for personal humiliation and for loss of income, among other things.[7] And Tinker claimed that Greene intentionally interfered with her employment at YKHC, alleging that Greene's statements were the cause of her termination. Tinker repeated the intentional-interference claim in other filings, but she later abandoned it.

In her answer Greene made two counterclaims. She claimed Tinker invaded her privacy by divulging her private medical information and that Tinker committed abuse of process by seeking and then revoking the May 2011 protective order.[8]

Both parties sought damages, including punitive damages. Both also sought attorney's fees.

a. Discovery

Discovery was contentious. Greene's first set of discovery requests included numerous questions to which Tinker objected. These included interrogatories requesting information about how many patients had died under Tinker's care; the identities of any such patients; and whether and how frequently Tinker used alcohol and marijuana. Tinker refused to answer these questions. Tinker responded to several of Greene's other, less inflammatory discovery requests evasively. When asked to admit that she had made unauthorized disclosures of confidential health records, Tinker responded that she did not know the meaning of the term " unauthorized disclosures." When asked to admit that Greene was entitled to voice her opinion about Tinker's conduct as a YKHC employee by submitting a complaint, Tinker declined to answer, objecting that the terms " voice," " opinion," and " complaint" were excessively vague. As we discuss below, Greene sought sanctions against Tinker in the superior court for what she viewed as inadequate discovery responses.

In addition to this early conflict over discovery, there was question whether Tinker's personnel file, as released to the superior court by YKHC for in camera review, was missing certain documents. Greene suggested that the file was missing her 2007 complaint against Tinker as well as additional complaints by other patients.

b. Greene's motion for summary judgment

After receiving Tinker's discovery responses, Greene moved in April 2012 for summary judgment on Tinker's claims of defamation and intentional interference with contractual relations. Greene argued to the superior court that she had a First Amendment right to complain about Tinker's revealing her due date ...

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