Altice, C.J.
Brittany Rubendall, on behalf of herself and others similarly situated, filed a putative class-action lawsuit against Community Hospital of Anderson and Madison County (the Hospital) for negligence and invasion of privacy based on public disclosure of private facts (PDPF). Prior to considering class certification, the trial court permitted the Hospital to file a motion for summary judgment, which the trial court granted. On appeal, Rubendall presents two issues for our review, which we restate as:
1. Did the trial court err in concluding that Rubendall’s negligence claim failed as a matter of law because she could not satisfy the modified impact rule?
2. Did the trial court err in concluding that Rubendall’s PDPF claim failed as a matter of law as there was no evidence to support a finding of publication?
We affirm.
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Rubendall asserts that a claim for “loss of privacy” arising from a breach of medical privacy should be regarded as separate and distinct from a claim for emotional distress damages. She maintains that the trial court and the Hospital erroneously conflate the two different claims for damages to use the modified-impact rule to preclude recovery for either. She asks this court to declare that loss of privacy is an available claim for damages in negligence-based privacy actions and that the modified-impact rule does not preclude recovery therefor. See Appellant’s Reply Brief at 5, 15-17.
Rubendall admits that she has not suffered any physical or economic damages but alleges that she has “suffered an irreparable loss of privacy which, in turn, results in embarrassment, stress, and anxiety.” Appellant’s Appendix Vol. II at 132. In McKenzie, our Supreme Court identified the plaintiffs’ claimed damages as “fear, anxiety, or sadness,” which the Court characterized as “emotional distress.” 185 N.E.3d at 379.
Here, Rubendall labels her damages as “loss of privacy,” which she associates with “embarrassment, stress, and anxiety.” Appellant’s Appendix Vol. II at 132. As in McKenzie, we conclude that, despite the label attached, Rubendall is seeking recovery for emotional distress damages through her negligence claim. It has been less than a year since our Supreme Court reaffirmed that the modified-impact rule operates to bar a claim for emotional distress damages in a negligence action based on a breach of medical privacy where the plaintiff cannot show that they “personally sustained a physical impact.” Id. (quoting Spangler, 958 N.E.2d at 467). We are bound by our Supreme Court’s decision and therefore apply the modified-impact rule to Rubendall’s negligence claim. Because she admits that she has not suffered any physical impact, her negligence claim fails as a matter of law. The trial court did not err in granting summary judgment in favor of the Hospital.
As in McKenzie, here, the Hospital sought and obtained summary judgment as to the element of publicity. Rubendall argues that the circumstances of this case are distinguishable from McKenzie. First, she characterizes the Hospital’s broadcasting of patients’ PHI over short-wave radio airwaves without encryption to roughly 50,000+ people (in the Anderson area) as publicity per se. In support of this argument, Rubendall relies on Yath v. Fairview Clinics, N.P., 767 N.W.2d 34 (Minn. Ct. App. 2009).
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… We find that it is fundamentally different to post information on a public webpage as in Yath than to transmit information via short-wave radio airwaves. As pointed out by the Hospital, one had to have a special radio and then take a separate step of downloading special software from the internet to decode the information the Hospital transmitted via short-wave radio airwaves. This is quite different than a broadcast over traditional radio airwaves where members of the public can hear what is being broadcast with their car radio or home stereo systems. The Hospital notes too that the transmission containing Rubendall’s PHI could be intercepted only at a precise moment in time and was not otherwise accessible outside of that moment.
For these reasons, the Hospital’s transmission of PHI via short-wave radio airwaves between departments is not actionable here. As in McKenzie, where our Supreme Court concluded as a matter of law that the designated evidence did not support a finding of publicity, we likewise conclude that there is no designated evidence that the Hospital disclosed the information to, or in a way that was sure to reach, the public or a large number of people. But see Z.D. v. Cmty. Health Network, Inc., 197 N.E.3d 330 (Ind. Ct. App. 2022) (holding that where hospital addressed letter containing plaintiff’s diagnosis to incorrect recipient and then that person posted the letter on Facebook, the matter of publicity was a question of fact), trans. pending. [Footnote omitted.] The trial court did not err in granting summary judgment in favor of the Hospital on Rubendall’s PDPF claim.
Judgment affirmed.
Brown, J. and Tavitas, J., concur.