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Bryson v. Delaware Occupational Health Resources, LLC

Superior Court of Delaware

May 31, 2017

KURT BRYSON, Plaintiff,

          Submitted: February 27, 2017


          Honorable Calvin L. Scott, Jr.

         Defendants 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 DENIED.


         This 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.

         Eventually 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 claims.

         Parties' Contentions

         Walgreens 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.

         On the 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 policies.

          Standard of Review

         The 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. [1] 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.[2] The complaint must be without merit as a matter of fact or law to be dismissed.[3] 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.[4]


         In this 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."[5] 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 18.[6] 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 ...

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