United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE.
Claire Colon files suit against Defendants the United States
of America ("United States"), the Department of
Defense ("DOD"), Dr. David Kassop. and Dr. Steven
Berkowitz. seeking $5, 000, 000 plus punitive damages,
attorney's fees, and costs for the violation of various
federal and state laws relating to the access and
distribution of her confidential medical records.
Specifically. Colon alleges the United States violated the
Federal Tort Claims Act ("FTCA"). 28 U.S.C.
§§ 1346(b). 2671 et seq. DOD violated the Privacy
Act. 5 U.S.C. § 552a; and Kassop and Berkowitz violated
the Fifth, Ninth, and Fourteenth Amendments, the Maryland
Confidentiality of Medical Records Act ("MCMRA"),
Md. Code Ann. Health Gen. § 4-301 el. seq.. and
committed a novel tort under Maryland law-the negligent
access and disclosure of protected health information. Now
pending are Defendants' motions to dismiss under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). The parties
have fully briefed the issues, and no oral argument is
necessary. See Local Rules 105.6 (D. Md. 2016). For
the reasons set forth below, the motions to dismiss of the
United States, Kassop. and Berkowitz are granted, and
DOD's motion to dismiss is denied.
Colon is a citizen and resident of Hawaii who joined the Armv
in May 2004. FCF No. 19 ¶¶ 1.9. Kassop is a citizen
and resident of North Carolina employed as a cardiologist by
the Department of the Army at Fort Bragg. North Carolina and
licensed to practice medicine in Maryland. Id.
¶ 2. Berkowitz is a citizen and resident of Maryland,
employed as a psychologist by the Department of the Army at
Fort Meade. Maryland and licensed to practice medicine in
Maryland. Id. ¶3.
dispute arises out of Kassop and Berkowitz's alleged
access and distribution of Colon's protected health
records. While deployed in Iraq in the mid-2000s, Colon was
assaulted by three fellow soldiers. Id. ¶ 10.
That trauma was compounded when Colon experienced postpartum
depression following the pregnancies of her two oldest
children in the latc-2000s. Id. Eventually Colon
sought professional help through the Army to address these
mental health issues. Id. Ultimately, a medical
diagnosis led Colon to medically retire from the Army as a
Captain with an Honorable Discharge on April 22, 2014.
Id. ¶ 11.
engaged in an extramarital affair with Major Christian
Wollenburg beginning in June 2009. Id. *[ 12. As a
result of the extramarital affair. Colon and Wollenburg had a
daughter, who was born in Bethesda, Maryland on October 2.
2010. Id. ¶ 12. After their daughter was born.
Colon and Wollenburg engaged in protracted litigation in the
Domestic Relations Branch of the Family Court of the District
of Columbia ("the Family Court"). Id.
¶ 14. The Family Court resolved a paternity suit in
favor of Wollenburg on September 12. 2013. Id. Colon
subsequently filed a custody complaint, which took more than
two years to resolve. Id.
alleges that in the midst of this custody dispute, in
November 2013. Wollenburg contacted his close friend and
former college roommate Kassop and asked Kassop to obtain
Colon's confidential health information for him.
Id. ¶ 16. She alleges that Wollenburg did so
hoping that he might be able to use her mental health issues
to win custody of their child, hi At the time,
Kassop was stationed at the Walter Reed Army Medical Center
in Bethesda. Maryland. Id. Colon alleges that Kassop
complied with this request, accessing the Armed Forces Health
Longitudinal Technology Application ("AHLTA")-the
electronic medical record system used by DOD and the Army-on
November 22. 2013 at shortly after 6 p.m. Id. at
¶ 17. Colon alleges that Kassop accessed this
information for at least forty-two minutes, during which time
he was able to see all of Colon's private health
information, including clinical notes, medications,
laboratory results, and radiology records. Id. Colon
was never a patient of Kassop's and never granted him
consent to access her records. Id. Colon alleges
that after accessing her personal medical information. Kassop
then shared that information with Wollenburg. Id.
¶ 18. She alleges that Wollenburg in turn shared that
information with Lieutenant Colonel Ralph Taylor,
id. ¶ 19. who the Army had tasked with
investigating Wollenburg's conduct to determine whether
he violated the Uniform Code of Military Justice
("UCMJ") by engaging in an adulterous relationship
with Colon. Id. ¶ 15.
further alleges that in February 2015. Wollenburg contacted
his own psychologist, Berkowitz. and asked Berkowitz to
obtain Colon's medical information as well. Id.
<i 20. Colon alleges that Berkowitz instructed employees
Kiaya Jackson and Jessica Hall to access, view, and print
Colon's medical records for him. Id. As a
result, she alleges that Berkowitz obtained her personal
medical records and then shared those records with
February 24. 2015, Taylor issued an investigative report into
Wollenburg's conduct, finding that the conduct amounted
to adultery based on a civilian and moral standard but did
not amount to adultery according to the UCMJ standard because
the relationship did not prejudice the good order and
discipline of the military. Id. ¶ 21. In that
report. Taylor detailed Colon's personal mental health
alleges that in May 2015-as well as in November
2015-Berkowitz again accessed Colon's health records.
Id. ¶ 22. She alleges that on those dates he
also accessed her daughter's health records. Id.
and July 2015. the Family Court held custody hearings in the
dispute between Colon and Wollenburg. Id. at ¶
25. Colon alleges that Wollenburg distributed her private
health records to each of their attorneys and the court in
anticipation of those hearings. Id. ¶ 24.
Wollenburg also included Kassop and Taylor as fact witnesses
in those hearings, on the grounds that Kassop was qualified
to testify as a physician and Taylor was qualified to testify
as to Colon's mental health. Id. ¶ 23.
During the hearings. Wollenburg attempted to use Colon's
history of mental health issues in order to gain sole custody
of their daughter, Id. ¶ 25. Colon alleges that
the basis for Wollenburg's knowledge of these issues was
the information he received from Kassop and Berkowitz.
Id. Ultimately. Colon and her husband were awarded
permanent sole legal custody of the child on December 24. 201
5. Id. ¶ 26. The Family Court acknowledged
Wollenburg's arguments regarding Colon's mental
health issues but expressed no concern about her ability to
be a good mother. Id.
August 2015. Colon asked the Army to investigate whether
Wollenburg had accessed her protected health information.
Id. ¶ 27. On November 16. 2015. the Army
informed Colon that it had discovered breaches of Colon's
and her child's protected medical records, including
access by Kassop and Berkowitz. Id.
March 21. 2017, Colon filed an initial complaint in this
Court against the United States. Secretary of Defense James
Mattis. Kassop. and Berkowitz. See ECF No. 1. On
July 14, 2017 and July 20, 2017. respectively. Defendants
filed motions to dismiss the initial complaint. See
ECF Nos. 12, 16. On July 30. 2017. Colon filed an Amended
Complaint, which substituted DOD for Mattis as a defendant
and made a few additional changes to the initial Complaint.
See ECF No. 19. The filing of the Amended Complaint
rendered those motions moot.
Counts I and 11. Colon sues the United States, seeking to
hold the federal government liable under the FTCA for the
acts and omissions of federal employees Kassop and Berkowitz.
In Count III. she sues DOD for violating the Privacy Act. In
Count IV. she sues Kassop and Berkowitz for violating the
Fifth. Ninth, and Fourteenth Amendments, and asks the Court
to extend the Bivens remedy to cover the facts of
this case. See Bivem v. Six Unknown Named Agents,
403 U.S. 388 (1971). In Count V, she sues Kassop and
Berkowitz for violating the MCMRA. In Count VI. she sues
Kassop and Berkowitz for the negligent access and disclosure
of protected health information, a novel tort that has not
yet been recognized in Maryland.
August 11, 2017. the United States and DOD filed a motion to
dismiss Colon's complaint for lack of subject matter
jurisdiction under Rule 12(b)(1) and for failure to state a
claim under Rule 12(b)(6). See ECF No. 26. On August
14. 2017, Kassop and Berkowitz filed motions to dismiss on
the same grounds. See ECF Nos. 27, 28. The
Defendants" motions to dismiss are now pending.
STANDARD OF REVIEW
Motion to Dismiss Pursuant to Rule 12(b)(1)
move to dismiss the Amended Complaint, in part, pursuant to
Rule l2(b)(1). asserting that the Court lacks subject matter
jurisdiction over Plaintiffs claims. The Plaintiff has the
burden of proving that subject matter jurisdiction exists.
See Evans v. B.F. Perkins Co., 166 F.3d 642. 647
(4th Cir. 1999). When a defendant challenges subject matter
jurisdiction pursuant to Rule l2(b)(1), "the district
court is to regard the pleadings as mere evidence on the
issue, and may consider evidence outside the pleadings
without converting the proceeding to one for summary
judgment." Id. (quoting Richmond
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765. 768 (4th Cir. 1991)). The district court should
grant the Rule l2(b)(1) motion to dismiss "only if the
material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of law."
Motion to Dismiss Pursuant to Rule 12(b)(6)
also move to dismiss the Amended Complaint, in part, pursuant
to Rule 12(b)(6), asserting that the Amended Complaint fails
to state a claim upon which relief can be granted. To state a
claim that survives a Rule 12(b)(6) motion, a complaint,
relying on only well-pled factual allegations, must state at
least a "plausible claim for relief." Ashcroft
v. Iqbal, 556 U.S. 662. 679 (2009). The "mere
recital of elements of a cause of action, supported only by
conclusory statements, is not sufficient to survive a motion
made pursuant to Rule 12(b)(6)." Walters v.
McMahen, 684 F.3d 435. 439 (4th Cir. 2012). To determine
whether a claim has crossed "the line from conceivable
to plausible, " the court must employ a
"context-specific inquiry." drawing on the
court's "experience and common sense."
Iqbal, 556 U.S. at 679-80. When performing this
inquiry, the court accepts "all well-pled facts as true
and construes these facts in the light most favorable to the
plaintiff in weighing the legal sufficiency of the
complaint." Nemel Chevrolet Ltd. v.
Comumeraffairs.com, Inc., 591 F.3d 250. 255 (4th Cir.
2009). The Court need not, however, accept unsupported legal
allegations, Revene v. Charles Cnty. Comm'rs,
882 F.2d 870. 873 (4th Cir. 1989). nor must it agree with
legal conclusions couched as factual allegations,
Iqbal, 556 U.S. at 678, or conclusory factual
allegations devoid of any reference to actual events.
United Black Firefighters v. Hirst, 604 F.2d 844,
847 (4th Cir. 1979); see also Francis v. Giacomelli,
588 F.3d 186. 193 (4th Cir. 2009).
Claims Against the ...