In a suit against a hospital and its two employees for disclosing the plaintiff’s confidential medical information to others, the circuit court correctly dismissed direct liability claims against the hospital but erred in also dismissing the plaintiff’s vicarious liability claims.
As an initial matter, the appeal is timely. The 30-day appeal deadline isn’t governed by the Rule 1:1 standard; absent contrary statutory direction, an order must be both entered and final before the 30 days commences.
For respondeat superior liability, it’s not enough that the employee’s claim arose out of an activity within the employee’s scope of employment or within the ordinary course of business. The employee must have committed the tort while actively engaged in a job-related service. Liability can’t be established merely by showing that the employee was “on the clock,” using the employer’s property, or on the employer’s premises.
The employee’s motive in committing the tortious act also plays a role in the job-related service doctrine, as a factor to be considered. If the deviation from the employer’s business is neither slight nor marked and unusual, but instead falls instead between those two extremes, the question is for the jury. Here, the plaintiff alleged that the employees committed the torts in the context of their employment. These allegations created a rebuttable presumption of vicarious liability. While a plaintiff can plead herself out of a case by alleging facts that rebut the presumption, the self-refutation must be clear. The allegations in this case are not strong enough to establish as a matter of law that the employer cannot be liable.
However, the hospital cannot be directly liable for the torts alleged. The plaintiff does not allege that the employees were its officers or agents, and Virginia precedents have never imposed a tort duty on a healthcare provider to manage its confidential information systems so as to deter employees from willfully gaining unauthorized access to confidential medical information.
Affirmed in part, reversed in part, and remanded. Two justices concurred.