Submitted: February 27, 2017
Honorable Calvin L. Scott, Jr.
Walgreens Boots Alliance Inc., Walgreens Company, and
Walgreens Delaware Company (collectively
"Walgreens") moved to dismiss the Complaint
pursuant to Superior Court Civil Rule 12(b)(6). For the
following reasons, Defendants' Motion to Dismiss is
action arises from an alleged breach of confidentiality. Mr.
Bryson applied for a job at Guardian Construction Company,
Inc. ("Guardian"), and the company required Mr.
Bryson obtain a drug test before employment with Guardian.
Mr. Bryson went to Defendant, Omega Medical Center
("Omega Medical Center") for his drug test on
September 18, 2014. On this day in question, Mr. Bryson told
a female agent and/or employee of Defendants Delaware
Occupational Health Resources ("DOHR") and/or Omega
Lab that he would fail the drug test because he is prescribed
and takes prescription opiates. The employee informed Mr.
Bryson that Omega Medical Center would contact him, and he
would have to provide Omega Medical Center with his
prescription. If he satisfied these prerequisites, Mr.
Bryson's drug test would be reported to Guardian as a
negative drug test. On September 22 or 23, Mr. Bryson claims
that a woman by the name of Ms. O'Brien, which Plaintiffs
believe is an employee of DOHR and/or Omega Lab, notified Mr.
Bryson that he failed the drug test because he tested
positive for oxycodone. Subsequently, Ms. O'Brien
requested the prescribing doctor's name, and the pharmacy
where Mr. Bryson filled his prescription. Mr. Bryson told Ms.
O'Brien that he filled his prescription at Walgreens,
2470 North DuPont Parkway, Middletown, Delaware.
Ms. O'Brien called Mr. Bryson again, and said that she
needed more information as Mr. Bryson was prescribed
oxycodone and oxycontin. Mr. Bryson asked how Ms. O'Brien
knew he was taking both oxycodone and oxycontin, and she told
him that a Walgreen's employee and/or pharmacist at
Walgreen's in Middletown informed her of this
information. Mr. Bryson called Walgreens and spoke with a
pharmacist who confirmed that his prescription information
was provided to DOHR and/or Omega Lab. The pharmacist told
Mr. Bryson that DOHR and/or Omega Lab asked for information
about one of the prescriptions, and the agent of Walgreens
"volunteered the information about the other
prescription." The pharmacist called Mr. Bryson again
and apologized for the policies and/or procedures that were
not followed. Consequently, Mr. Bryson's prescription
information was provided to Guardian by DOHR and/or Omega
Lab. Mr. Bryson had to meet with personnel at Guardian about
his use of oxycontin and oxycodone. Plaintiffs claim that Mr.
Bryson applied to a job internally at Guardian, but he did
not get the job. Further, Mr. Bryson has not received a raise
even though raises were discussed when he was initially hired
at Guardian. Mr. Bryson filed Breach of Confidentiality,
Intentional Infliction of Emotional Distress, Negligent
Infliction of Emotional Distress, Invasion of Privacy,
Negligence, Breach of Contract, and Promissory Estoppel
filed a Motion to Dismiss Plaintiff's Complaint.
Occupational Health Resources, L.L.C. d/b/a Omega Medical
Center joined this Motion. Walgreens first argues that the
Complaint is insufficient without an Affidavit of Merit
because under Delaware law, medical negligence claims must be
supported by an Affidavit of Merit. Walgreens argues that in
Delaware, a physician-patient relationship exists between a
pharmacist and a customer for the purposes of
confidentiality, and an affidavit of merit should have
supported these claims. Additionally, Walgreens contends that
its Notice of Privacy Practices provides that Walgreens may
disclose health information to provide and coordinate the
treatment, medications, and services a person receives.
Essentially, Walgreens argues that they may disclose
protected health information to pharmacist, doctors, nurses,
technicians, and other personnel involved in the
patient's health care. Similarly, under 16 Del.
C. § 1212 (d)(10) Walgreens contends that its
disclosure to Omega Laboratory was related to the
coordination of the analysis being provided by Omega. Thus,
there is no violation of Delaware law.
other hand, Plaintiffs contends that although a
physician/patient relationship exists between a pharmacist
and an individual for the purposes of breach of
confidentiality, this is not a medical malpractice claim
subject to 18 Del. C. § 6853. Plaintiff cites
to numerous cases where Delaware courts have held that breach
of confidentiality claims between a doctor and a patient do
not fall within the medical negligence statute, thus no
expert is required. Further, Plaintiffs contend that an issue
of fact exists as to whether Walgreens violated their privacy
Standard of Review
test for sufficiency of a complaint challenged by a Rule
12(b)(6) motion to dismiss is whether a plaintiff may recover
under any reasonably conceivable set of circumstances
susceptible of proof under the complaint.  In making its
determination, the Court must accept all well-pleaded
allegations in the complaint as true and draw all reasonable
factual inferences in favor of the non-moving
party. The complaint must be without merit as a
matter of fact or law to be dismissed. Therefore, if the
plaintiff can recover under any conceivable set of
circumstances susceptible of proof under the complaint, the
motion to dismiss will not be granted.
State, a plaintiff cannot file a health-care negligence
lawsuit unless the complaint is accompanied by an affidavit
of merit "as to each defendant signed by an expert
witness, as defined in § 6854 of this title, and
accompanied by a current curriculum vitae of the witness,
stating that there are reasonable grounds to believe that
there has been health-care medical negligence committed by
each defendant." However, as correctly stated by
Plaintiffs, a breach of confidentiality between a doctor and
a patient is considered ordinary negligence, not considered
medical negligence, under Chapter 68 of Title
Medical negligence is defined as:
any tort or breach of contract based on health care or
professional services rendered, or which should have been
rendered, by a healthcare provider to a patient. The standard
of skill and care required of every health-care provider in
rendering professional services or health care to a patient
shall be that degree of skill and care ordinarily employed in
the same ...