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Colon v. United States

United States District Court, D. Maryland, Southern Division

March 13, 2018

CLAIRE COLON, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.



         Plaintiff 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.

         I. BACKGROUND[1]

         Claire 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.

         This 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.

         Colon 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.

         Colon 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.

         Colon 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 Wollenburg. Id.

         On 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 history. Id.

         Colon 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.

         In June 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.

         In 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.

         On 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.

         In 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.

         On 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.


         A. Motion to Dismiss Pursuant to Rule 12(b)(1)

         Defendants 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." Id.

         B. Motion to Dismiss Pursuant to Rule 12(b)(6)

         Defendants 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., 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).


&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A. Claims Against the ...

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