US Pharm. 2010;35(11):86-90.
How much legal responsibility do you as a pharmacist—or does the pharmacy you practice at—have for the conduct of your employees? Like most things in the law, the answer depends on what activity the employee was engaged in and whether or not the actions were part of the employee's work duties.
To illustrate the difference, let's say a patient walks up to the pharmacy counter, and, without any provocation whatsoever, your pharmacy technician punches the customer in the face. Is the pharmacist or pharmacy liable? Maybe or maybe not. If the employee just happens to know the patient, has some personal vendetta against him or her, and hits the patient motivated by revenge, the pharmacy or pharmacist is not likely to have any legal accountability for the altercation. On the other hand, if you or another person with managerial capacity tells the employee that the next time he sees patient X, to give that person a “good beating,” you and/or your pharmacy will probably incur a judgment against you.
The distinction will depend on the applicability of an ancient legal doctrine known as respondeat superior, a Latin term meaning “let the master answer.” Although not in common use nowadays, the doctrine was once also referred to as the master-servant rule. Another term associated with this concept is vicarious liability, roughly meaning that the superior is responsible for the acts of the subordinate. Less commonly, the principle of someone in a superior relationship to the employee is also discussed under the rubric of agency relationship.
Irrespective of the legal name used to describe the notion of accountability by the employer, there are conditions that must be met before employer liability will be imposed for the wrongful conduct of the employee. The employee must be acting within the so-called “scope of employment,” meaning that the negligent or unjust activity must be authorized by the employer or be so connected with the employee's job duties as to be considered part and parcel of the employee's performance of the conditions of employment. Another way of describing this concept is to say that the conduct of the employee occurred within the geographical area of the employment, occurred within the job description of the employee, and was in the full or at the very least partial furtherance of the employer's business interests.
Facts of the Case
Here is a recent case that should help demonstrate how these legal concepts work in practice.1 Plaintiff Sandra Robbins was a regular customer of Happy Harry's, a pharmacy located in Harrington, Delaware. On August 31, 2007, Ms. Robbins used the drive-thru window to drop off some prescriptions. Defendant Tammy Carter, described in court documents as a “drive-thru attendant” and an employee of Happy Harry's, received the prescriptions.
A short time later, Tammy Carter called her husband, Larry Carter, from whom she had separated earlier that year. She allegedly insulted, defamed, and threatened to assault Ms. Robbins, and then disclosed confidential medical information to her estranged husband without the permission of the other woman. Now here is the most important, and some might say the juiciest, fact of the case: Larry Carter was engaged in a “romantic relationship” with Ms. Robbins at the time of the incident.
Apparently Mr. Carter told Ms. Robbins about the conversation with his wife. Subsequently, Ms. Robbins went to Happy Harry's and complained about Tammy Carter's telephone call. Ms. Robbins spoke to an assistant manager who stated she would talk to the pharmacist and store manager about the episode.
Directly after making the complaint, Ms. Robbins left the pharmacy and went to a grocery store located in the same shopping mall. There, she was confronted by Tammy Carter, and an argument ensued. Ms. Carter also allegedly made reference to Ms. Robbins' sensitive medical information. While in the grocery store, Ms. Carter was arrested and charged with offensive touching, disorderly conduct, and terroristic threatening.
Ms. Robbins sued Tammy Carter and her employer, Happy Harry's. Most of the allegations were against Ms. Carter alone. But two counts were made against the pharmacy--one for negligent supervision of an employee and another for respondeat superior.
The negligent supervision count stated: “Defendant [Tammy] Carter, acting in the scope of her employment with Happy Harry's, committed tortuous acts resulting in injuries to [Plaintiff Robbins]. Defendant Happy Harry's knew or had reason to know of Defendant Carter's propensity to engage in tortuous acts of intentional and negligent infliction of emotional distress, harassment, invasion of privacy, breach of confidentiality, and other torts against the plaintiff. Defendant Happy Harry's failed to exercise due care to supervise and to take steps to prevent Defendant Carter from committing and continuing her tortuous course of conduct, and failed to exercise due care to correct the injuries caused by Defendant Carter's tortuous acts. Defendant Happy Harry's breach of its duty to supervise proximately caused injuries to the plaintiff, including irreparable reputational harm, severe emotional distress, economic injuries, and other injuries.”2
As to this count, the judge, quoting from an earlier case, stated, “An employer is liable for negligent hiring or supervision where the employer is negligent in giving improper or ambiguous orders or in failing to make proper regulations, or in the employment of improper persons involving risk of harm to others, or in the supervision of the employee's activity.”3 Using this logic, the judge ruled that the complaint did allege that Happy Harry's failed to take steps to prevent the disclosure of confidential medical information. Following the rules of procedure relating to pleading requirements and a motion to dismiss, he concluded that the plaintiff's complaint sufficiently alleges a claim of negligent supervision upon which relief can be granted. Therefore, he refused to dismiss this charge against the defendant employer.
The respondeat superior count alleged: “At all times material to this cause of action, [Defendant Tammy Carter] was an agent and employee of Defendant Happy Harry's, Inc., and was at such times acting within the full course, scope, and authority of [Defendant Carter's] position with Defendant Happy Harry's Inc., therefore imputing liability for her negligent acts and resulting damages as outlined above under the principles of respondeat superior and the law of agency.”4
Happy Harry's argued that Defendant Carter's actions were in no way motivated by a purpose to serve the employer.5 The plaintiff, of course, opposed the argument, citing case law supporting her position.6 Looking to his own references for the proper application of the doctrine, the judge wrote: “An employer will be liable for the tortuous acts of an employee under respondeat superior if those acts are performed within the scope of employment.”7 “Conduct is within the scope of employment if it (i) is of the type the employee was hired to perform; (ii) takes place 'within the authorized time and space limits;' and (iii) is at least partially motivated by a purpose to serve the employer.”8 “The question of whether conduct is within the scope of employment is generally a question for the jury, unless the facts are so clear that they must be decided as a matter of law.”9
Looking to the facts of the case before him, the judge noted that it appears that Defendant Carter's actions were motivated by a purely personal conflict between herself, her estranged husband, and his current girlfriend. It does not appear that her conduct was motivated in any way by a purpose to serve her employer. The judge therefore concluded that her conduct cannot be found to be within the scope of her employment. Thus, he dismissed this count against the employer.
This is a good case to illustrate the extent and boundaries of the doctrines used to impose liability on an employer for the wrongful conduct of an employee. As to the negligent supervision claim against the employer, the court concluded there were enough facts present to let the allegation proceed to a jury trial. While the complaint on this count was somewhat conclusory in that it did not describe in any detail how the employer failed to take steps to prevent the disclosure of confidential medical information, under the pleading rules the judge was obligated to assume the claim was true. With no facts asserted by the employer to dispute the allegation, there was little hope that the charge would be dismissed on summary judgment. It must be noted that at this point in the litigation, the employer has not been found liable. The court's opinion only means that this count against the employer may proceed to trial. It will be up to a jury to decide if there are sufficient facts to conclude that the employer negligently supervised its employee by not taking steps to prevent her from disclosing confidential information.
However, as to the respondeat superior claim, the judge concluded that the plaintiff did not allege sufficient facts to make the claim withstand judicial scrutiny. Of significance, the confrontation between Ms. Robbins and Ms. Carter did not take place in the employer's place of business. There was a geographical distance between where the incident occurred and the defendant's store, thereby defeating one of the essential elements of the claim. The confrontation was not motivated by anything that furthered the business interests of Happy Harry's, and thus another element of the charge was absent. Certainly, Ms. Carter's employment duties had nothing to do with what happened here, thereby eliminating another element of the allegation. Further, the incident appeared to be provoked by the personal romantic relationships of Mr. Carter, Ms. Carter, and Ms. Robbins, none of which had anything to do with the business interests of the pharmacy. In short, the plaintiff's complaint failed to plead any of the necessary fundamentals of a respondeat superior claim. The effect of this ruling is that this claim cannot proceed to trial, and the plaintiff will not be able to make allegations against the employer on this count.
This is a case decided under Delaware law. The legal ramifications might change in different jurisdictions depending on the statutes and common law rulings in other states. It may be worthwhile to check the law in your home state to determine if the laws differ.
In any event, all pharmacists and pharmacies should have policies and procedures in place that clearly spell out the responsibility of employees not to disclose confidential or private medical or treatment information. Having an employee handbook, signed by the employee at the time of hiring and acknowledging the rights of patient confidentiality and privacy, can go a long way in preventing negligent supervision claims of the type asserted here. In addition, a job description explaining the scope of duties of an employee and the kind of conduct that will be considered inappropriate or not tolerated will also protect employers and pharmacists from these sorts of claims. It is always better to take care of these issues when an employee is hired rather then waiting to see what happens after you are sued.
1. Robbins v. Carter et al, CA No. 09C-08-044 (JTV), Del Super Ct, 2010 Del Super LEXIS 350, August 31, 2010.
2. See Note 1, supra.
3. Simms v. Christina Sch. Dist., 2004 Del Super LEXIS 43, 2004 WL 344015, at *8 (Del Super). Citing Knerr v. Gilpin, Van Trump & Montgomery, Inc., 1998 WL 40009 (Del Super).
4. See Note 1, supra.
5. Drainer v. O'Donnell, 1995 Del Super LEXIS 229, 1995 WL 338700 (Del Super 1995).
6. Fanean v. Rite Aid Corporation of Delaware, Inc., 984 A2d 812 (Del Super 2009).
7. See Note 5, supra.
8. See Note 5, supra. Quoting Wilson v. Joma, Inc., 537 A2d 187, 189 (Del 1988).
9. See Note 5, supra. Quoting Draper v. Olivere Paving & Constr. Co., 54 Del 433, 181 A2d 565, 570 (Del 1962).
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