This case is before the Court pursuant to a certified question of great public importance from the Second District Court of Appeal. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. The appellee, Lisa M. Abril, sought damages based upon negligence in the unauthorized disclosure of the results of her HIV testing. Abril v. Dep't of Corr., 884 So.2d 206, 207-08 (Fla. 2d DCA 2004). The district court reversed the trial court's dismissal of the case for failure to state a cause of action. Id. at 213. In reinstating the case, the Second District certified the following question to this Court as one of great public importance:
Proceedings to Date
The prior proceedings were summarized by the district court in the opinion below:
Id. at 207. The Abrils subsequently filed a civil action, seeking damages, in part, for the mental anguish and emotional distress suffered by Ms. Abril arising from Continental's negligent failure to ensure the confidentiality and privacy of the HIV test results
This Court and other appellate courts review decisions resolving motions to dismiss under a de novo standard where those motions are based on a claim that no legal cause of action exists as alleged in the complaint. Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734 (Fla. 2002). Here, the amended complaint alleges an action based on the negligence of Continental Laboratories, charging the department with vicarious liability for this negligence under the agency provisions of section 768.28(10)(a), pursuant to which the State has waived immunity for the actions of health care services provided by private persons at the request of the department. See Abril, 884 So.2d at 207-08.
In their amended complaint, the Abrils alleged that Continental was negligent and that it "breached its professional duty [to Ms. Abril] by failing to provide that level of care, skill and treatment which, in light of all relevant surrounding circumstances is recognized as acceptable and appropriate by reasonably prudent similar health care providers." Because of this breach, the Abrils allege they suffered mental anguish and emotional distress. Id. In arguing for reconsideration after the trial court granted the department's motion to dismiss, the Abrils argued that their action was one for medical malpractice because of Continental's negligence resulting in breach of its duty to maintain the confidentiality of the test results. Thus, the Abrils essentially asserted a common law negligence claim against Continental utilizing the breach of the provisions of section 381.004(3)(f) as evidence of Continental's negligence.
To maintain an action for negligence, a plaintiff must establish that the defendant owed a duty, that the defendant breached that duty, and that this breach caused the plaintiff damages. See Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 573 (Fla.2001). This Court has held that while breach, causation, and damages are
The district court relied primarily upon the provisions of section 381.004(3)(f) as the source of a duty of confidentiality owed by Continental to Ms. Abril. Section 381.004(3)(f) provides:
In rejecting the department's argument that no duty to Ms. Abril existed, the district court explained:
Abril, 884 So.2d at 209-10. Although the district court did not elaborate in great detail on its analysis, we conclude that the court was correct in its conclusion that the Abrils had properly alleged a cause of action for negligence.
The courts of Florida have long recognized that the violation of a statute may be utilized as evidence of negligence. In Alford v. Meyer, 201 So.2d 489 (Fla. 1st DCA 1967), the court explained:
Id. at 491; see also deJesus v. Seaboard Coast Line R.R. Co., 281 So.2d 198 (Fla. 1973). Section 381.004(3)(f), at a minimum, creates a reasonable standard of care for handling HIV testing results, and Continental's breach of this statute by the improper release of Abril's results may be evidence that the laboratory acted negligently.
The district court also noted that in addition to the explicit provisions for confidentiality of HIV testing under section 381.004, health care laboratories are also governed by other provisions of the Florida Statutes, such as the Florida Clinical Laboratory Law in section 483.181(2), Florida Statutes (1995), which explicitly mandates that "[t]he results of a test must be reported directly to the licensed practitioner or other authorized person who requested it." Abril, 884 So.2d at 209 n. 1 (quoting section 483.181(2)). Indeed, Florida has a long tradition of recognizing the
Further, as is evidenced by our decision in Johnson, this Court has consistently and rigorously enforced the rights of patients to confidentiality in their medical records. In view of these multiple sources of a duty of confidentiality and privacy, it is not surprising that the Second District declared that "the existence of a duty on the part of Continental Laboratory to maintain the confidentiality of information relating to Mrs. Abril's HIV test is unquestioned." Abril, 884 So.2d at 213.
As did the district court, we look to our decision in Gracey and reach a similar result as to the application of the impact rule. The impact rule, as applied in Florida, requires that "before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact." R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362 (Fla.1995) (quoting Reynolds v. State Farm Mut. Auto. Ins. Co., 611 So.2d 1294, 1296 (Fla. 4th DCA 1992)).
Although this Court has upheld the viability of the impact rule, it has recognized exceptions where a plaintiff may recover for emotional damages even though he or she suffered no impact or physical manifestation of the injuries. These exceptions, however, "have been narrowly created and defined in a certain very narrow class of cases in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale undergirding the application of the impact rule." Rowell v. Holt, 850 So.2d 474, 478 (Fla.2003). For example, we have noted that the impact rule does not apply to any intentional torts, such as defamation,
In Gracey, this Court also recognized an exception to the impact rule for a breach of the duty of confidentiality as to the release of sensitive personal information. Gracey, 837 So.2d at 357. The Abrils assert that as with the breach of confidentiality in Gracey, the emotional damages resulting from the dissemination of confidential HIV test results are foreseeable and grave.
In the instant case, the Second District held that the impact rule did not bar the emotional distress damages asserted in the claim below. Abril, 884 So.2d at 213. The court again analogized the case to Gracey, where this Court held that the impact rule should not apply because the emotional distress the Graceys suffered as a result of their psychotherapist breaching his duty of confidentiality, was
Gracey, 837 So.2d at 356. In Gracey this Court also relied on the statutory duty it found as evidence that the Legislature recognized that plaintiffs could be injured by breaches of the duty of confidentiality, regardless of whether they suffered any physical impact or injury. Id. at 357. The Second District stated that this same reasoning applied in the instant case, and also relied on this Court's opinion in Rowell, stating that "there is no legally significant distinction between the `foreseeability and gravity of the emotional injury involved' in the instant case and the `foreseeablity and gravity of the emotional injury' involved in Gracey." Abril, 884 So.2d at 212.
The district court noted that the statutes in Gracey and in the instant case had the same purpose of protecting individuals from disclosure of highly personal, sensitive information and in both situations, the only possible injury flowing from the violation of the respective statutes was emotional distress. Abril, 884 So.2d at 212. While the court noted that unlike Gracey, no technical fiduciary relationship existed between the laboratory and the plaintiffs, the duty of confidentiality owed to the plaintiffs was "unquestioned." Id. at 213.
We agree with the district court that this Court's analysis in Gracey sets strong precedential authority for this exception. At least one clear purpose behind the enactment of section 381.004(3)(f) was to ensure that people potentially exposed to HIV would get tested. The Legislature also apparently concluded, however, that people may resist HIV testing because of the fear that their results would become public knowledge. § 381.004(1), Fla. Stat. (Supp.1996). The specific safeguards provided by the statute to prevent disclosure lend weight to the argument that public dissemination of the test results would cause emotional distress, and thus Continental should have known that by sending the results in an unsecured fax, it was risking causing great emotional distress to the Abrils if an unauthorized party saw the test results.
Because the only reasonable damages arising from a breach of section
Accordingly, we approve the Second District's decision reversing the trial court's dismissal of appellee's action and we further approve the court's holding that the impact rule does not bar a cause of action for a breach of confidentiality in negligently disclosing the results of HIV testing.
It is so ordered.
LEWIS, C.J., and ANSTEAD, PARIENTE, and QUINCE, JJ., concur.
PARIENTE, J., concurs with an opinion.
CANTERO, J., concurs in part and dissents in part with an opinion.
WELLS, J., dissents with an opinion.
BELL, J., dissents with an opinion, in which WELLS, J., concurs.
PARIENTE, J., concurring.
I agree with the majority that where a laboratory or health care provider negligently fails to maintain the confidentiality of HIV test results, Florida's impact rule does not preclude recovery of emotional distress damages. Under these circumstances, emotional distress damages are likely the only possible injuries flowing from the negligent conduct. Further, the "foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns . . . surmount the policy rationale undergirding application of the impact rule." Rowell v. Holt, 850 So.2d 474, 478 (Fla.2003).
I write separately to once again express my view that the impact rule as it exists in Florida is no longer a viable mechanism for limiting recoverable damages in cases involving torts and to urge this Court to consider abolishing the impact rule. Although Justice Cantero and I might disagree as to the precise test that would replace the confusing and outdated impact rule, I agree with Justice Cantero that our case-by-case approach has done nothing to stabilize the law or to clarify when an exception will be recognized.
As I have explained in previous decisions, I would adopt the traditional foreseeability analysis applicable to negligence claims as the more appropriate framework for a limitation on tort recovery in this state. See, e.g., Willis v. Gami Golden Glades, LLC, 967 So.2d 846, 863 (Fla. 2007) (Pariente, J., concurring); Rowell, 850 So.2d at 484 (Pariente, J., specially concurring); Gracey v. Eaker, 837 So.2d 348, 359 (Fla.2002) (Pariente, J., concurring). "As a practical matter, the traditional foreseeability analysis eliminates the arbitrary requirement of the impact rule, which will lead to greater stability and greater predictability in this area of the law." Willis, 967 So.2d at 863 (Pariente, J., concurring). This analysis will also provide guidance to the lower courts in this state and end the need for district
CANTERO, J., concurring in part and dissenting in part.
I agree that a violation of the confidentiality requirement in the HIV testing statute — section 381.004(3)(f), Florida Statutes (Supp.1996) — may be used as evidence of negligence. Such a result is consistent with a long line of cases dating back to deJesus v. Seaboard Coast Line Railroad Co., 281 So.2d 198 (Fla.1973). We did create some tension with deJesus by holding, in Murthy v. N. Sinha Corp., 644 So.2d 983 (Fla.1994), that legislative intent "should be the primary factor . . . in determining whether a cause of action exists when a statute does not expressly provide for one." Id. at 985. Therefore, if we were to assign so much weight to a statutory violation that we essentially created a private cause of action, without any legislative intent to do so, we would violate Murthy's principles. But we can reconcile deJesus and Murthy by relegating statutes to a lesser role in negligence cases. Even when a statutory violation provides some evidence of negligence, other proof of the defendant's level of care also will have to be considered. Moreover, the factfinder will have to evaluate other issues such as proximate cause and comparative negligence. These hurdles should prevent statutory evidence of negligence from becoming a statutory cause of action in disguise.
Consider, for example, a motorist involved in an accident while traveling thirty-five miles per hour in a thirty miles-per-hour speed zone. An injured plaintiff could use the violation of the posted speed limit as evidence of the driver's negligence, but the speeding alone would not conclusively establish breach of duty in the manner of negligence per se. Under an evidence of negligence standard, the injured plaintiff would still have to prove all the elements of negligence: duty, breach, causation, and damages. The driver's speeding could be used as one item of evidence, along with others, of negligent driving. See deJesus, 281 So.2d at 201 ("Proof of violation of a traffic ordinance is prima facie evidence only of `negligence'; proximate cause and other elements of actionable negligence must be proven independently.").
The Fourth District Court of Appeal applied this reasoning in Chevron U.S.A., Inc. v. Forbes, 783 So.2d 1215 (Fla. 4th DCA 2001). In Chevron, the plaintiff slipped and fell when he stepped into a puddle at a gas station. The trial court instructed the jury that it could find the gas station negligent per se for violating section 526.141, Florida Statutes (1997), which governs the general operation of self-service gas stations. The district court reversed, holding that "under deJesus, violation of section 526.141[was] merely evidence of negligence, rather than negligence per se." Id. at 1219. See also Lindsey v. Bill Arflin Bonding Agency, Inc., 645 So.2d 565 (Fla. 1st DCA 1994) (relying on deJesus to hold that violation of a handrails ordinance could only be used as evidence of negligence and not as negligence per se). These cases demonstrate the distinction between treating a statutory violation as evidence of negligence and treating it as negligence per se.
Because the majority suggests only a limited role for the HIV testing statute in negligence cases, I join that part of its analysis. I disagree with the majority, however, to the extent it creates yet another in a line of ad hoc, fact-specific exceptions to the impact rule. The rule, which dates back even further than deJesus, to at least International Ocean Telegraph Co. v.
As I explain in my dissent in Willis v. Gami Golden Glades, L.L.C., 967 So.2d 846, 867-68 (Fla. 2007) (Cantero, J. dissenting), we traditionally have held that plaintiffs seeking to recover for emotional distress in a negligence action must demonstrate that they suffered a physical injury sustained in an impact. This requirement is known as the impact rule. We have gradually refined the rule to where the physical injury need not result from the impact, but can now also result from the emotional distress itself. See, e.g., Champion v. Gray, 478 So.2d 17, 18 (Fla. 1985). In Willis, however, this Court further relaxed the rule to allow recovery for mere impact, without any physical injury at all. See Willis, 967 So.2d at 850-51. As revised, the rule has been rendered useless, hinging recovery on arbitrary factors unrelated to a claim's authenticity. For example, in Willis, recovery depended on whether the gun that an armed robber pointed at the victim's head actually touched her. Thankfully, we need not ask such arbitrary questions here because the plaintiffs have not even alleged an impact. Even under Willis's generous formulation, therefore, they cannot satisfy the impact rule.
The majority nevertheless allows recovery for emotional distress because it concludes that the impact rule does not apply to a laboratory's (or other health-care provider's) negligent disclosure of confidential HIV test results. Majority op. at 207-08. The majority thus creates another ad-hoc exception to the impact rule to cover the specific facts of this case.
Of course, this is hardly the first time we have created a fact-specific exception to the rule. As I noted in Willis, we have essentially created exceptions whenever we felt that applying the rule would be unjust. See, e.g., Rowell, 850 So.2d at 474 (creating an exception for legal malpractice that needlessly extends a client's imprisonment); Gracey v. Eaker, 837 So.2d 348 (Fla.2002) (creating an exception for negligent breach of confidentiality by a psychotherapist); Hagan v. Coca-Cola Bottling Co., 804 So.2d 1234 (Fla.2001) (creating an exception for ingestion of a contaminated food or beverage); Tanner v. Hartog, 696 So.2d 705 (Fla.1997) (creating an exception for negligent stillbirth); Gonzalez v. Metro. Dade County Pub. Health Trust, 651 So.2d 673 (Fla.1995) (creating an exception for negligent handling of a corpse); Kush v. Lloyd, 616 So.2d 415 (Fla.1992) (creating an exception for negligent failure to diagnose an inheritable genetic impairment). Discerning the logical relationship among these exceptions is a challenge. Constructing a predictable jurisprudence from them is impossible.
Today the majority extends the exception we created when a psychotherapist breached a duty of confidentiality, citing that case as "strong precedential authority" for creating another exception when a laboratory negligently discloses confidential
The majority dismisses this distinction, emphasizing that both Gracey and this case involved an alleged "disclosure of highly personal, sensitive information" in violation of a statute. Majority op. at 207. That may be true, but in Gracey we did not hold, and the decision did not even imply, that we were establishing a broad exception to the impact rule for any disclosure of statutorily protected information. The exception was expressly limited to "cases in which a psychotherapist has created a fiduciary relationship and has breached a statutory duty to his or her patient." Gracey, 837 So.2d at 357. Not only did we identify the fiduciary relationship as essential, we also cautioned that the exception would be confined to "the particular facts of the case before us" and "should not be construed as bringing into question the continued viability of the impact rule in other situations." Id. at 358. Today's decision contradicts Gracey while claiming to apply it.
The majority also analogizes the distress caused by the disclosure of HIV test results "to that suffered by victims of defamation or invasion of privacy," majority op. at 207-08, for whom recovery of emotional distress damages is allowed. But defamation and invasion of privacy are intentional torts. As we recently explained, "the impact rule is inapplicable to recognized intentional torts that result in predominantly emotional damages such as intentional infliction of emotional distress, defamation, or invasion of privacy claims." So. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317, 320 (Fla.2005). In this case, the plaintiffs do not allege an intentional tort. If the majority means to imply that any negligence claim resulting in predominantly emotional damages of the sort seen in defamation and invasion of privacy claims (e.g., public humiliation, feelings of intrusion) is now exempted from the impact rule, then the exceptions have truly swallowed the rule. Almost any negligent act can be portrayed as humiliating or intrusive. If, on the other hand, the majority means to imply that the amount of emotional distress must be equal to that caused by defamation and invasion of privacy, the majority offers no scale for measuring levels of emotional distress. The intentional torts of defamation and invasion of privacy range in severity across a wide spectrum — just as negligence claims do. Again, the rule will essentially disappear.
While drawing these tenuous analogies to some of our less relevant precedents, the majority essentially ignores the case most on point — Humana, 652 So.2d at 362. There, we refused to create an exception to the impact rule for the negligent misdiagnosis of HIV. We reasoned that "it would be exceedingly difficult to limit speculative claims for damages in litigation under such an exception." Id. at 364. In this case, the plaintiffs also allege an HIV misdiagnosis. They further allege that the test results were negligently disclosed to third parties. Yet rather than follow Humana
I admit the impact rule is imperfect. Its underlying assumption — that those who sustain physical injuries are more likely to suffer serious emotional distress than those who do not — offers consistency at the price of flexibility, which means that sometimes its application to a specific case may seem unjust. Moreover, the rule has confused the lower courts, producing a steady stream of certified questions for this Court to answer. Because of these problems, I remain willing to scrap the rule and replace it with a more workable analysis, as I recommend in Willis. See Willis, 967 So.2d at 876-77 (Cantero, J., dissenting). But chipping away at the rule with yet another fact-specific exception — especially in a case so similar to one in which we refused to create one — will only add to the exceptions' arbitrariness, create more confusion about when the rule applies, and generate more certified questions — which, if our recent decisions are any indication, will lead to even more exceptions. Until we replace the current rule with one more equitable and predictable, we should apply the one we have and stop creating exceptions at every turn. To the extent the majority refuses to apply the rule here, I respectfully dissent.
WELLS, J., dissenting.
I dissent from the majority's decision because I cannot see how this negligence case, involving results from an HIV test, materially differs from R.J. v. Humana of Florida, Inc., 652 So.2d 360 (Fla.1995), which involved negligence in respect to an HIV test. In R.J. v. Humana, the majority of this Court held that the impact rule barred recovery, whereas the present majority holds that the impact rule does not bar recovery.
I find the majority's opinion to be particularly inconsistent in view of the present majority's reliance on Gracey v. Eaker, 837 So.2d 348 (Fla.2002), for the present holding, in view of the following from the Gracey opinion at 358:
BELL, J., dissenting.
If it were appropriate to answer the question as certified, I would agree with Justices Wells and Cantero that the impact
I am concerned that the majority's opinion leaves the impression that after Gracey v. Eaker, 837 So.2d 348 (Fla.2002), and this case, the law in Florida is that a breach of any clear statutory duty will give rise to tort liability irrespective of the remedies chosen by the Legislature to address any such breach. Moreover, I am concerned that in answering the certified question and approving the decision below, the majority does not simply approve the use of an existing tort action, but it approves the use of a new common law tort.
I will elaborate below on each of these concerns. In the first part (I), I discuss my concerns regarding the propriety of answering the question as certified as well as the majority's failure to limit its answer to the medical malpractice context. In the second part (II), I discuss my concerns that the majority is modifying the common law in order to provide a private remedy that would not otherwise exist and that it is doing so without any meaningful examination of legislative intent. At the end of this discussion, I distinguish Gracey.
A. The Certified Question Should Be Revised
The certified question is not supported by the record and, therefore, should be revised. The certified question asks whether Florida's impact rule applies "in a case in which it is alleged that the infliction of emotional injuries has resulted from a clinical laboratory's breach of a duty of confidentiality under section 381.004(3)(f)." Abril v. Dep't of Corr., 884 So.2d 206, 213 (Fla. 2d DCA 2004). No such case is before this Court. The Abrils have repeatedly disclaimed any reliance upon the duty of confidentiality created by section 381.004(3)(f). As stated in their brief to us:
Amended Respondents' Answer Br. at 3-4 & n. 2 (emphasis added).
The record confirms the Abrils' position. Their amended complaint never mentions or relies upon section 381.004.
B. The Abrils' Claim Is for Medical Malpractice
My concern about this Court's answering the question as certified is amplified by the breadth of the majority's opinion. The majority fails to confine its decision to the medical malpractice context. As noted in the above quote from the Abrils' brief, their claim is one for medical malpractice, a very specialized form of tort action. The Abrils' counsel reiterated this point at oral argument. He said, "Kush v. Lloyd is the case I am primarily relying upon, medical malpractice." Kush v. Lloyd, 616 So.2d 415 (Fla.1992).
Having challenged both the appropriateness of answering the question as certified as well as the majority's failure to answer the question in the context of the cause of
In support of my position, I first establish that the majority opinion seemingly approves the Second District's conclusion that a breach of any clear statutory duty may give rise to tort liability. Then, I explain why this Court should apply a legislative intent analysis and why this analysis requires that the district court's opinion be quashed. Finally, I discuss why Gracey is distinguishable and should not be extended to an action in simple negligence.
A. The Majority's Approval of Breach of Statutory Duty Necessarily Giving Rise to Civil Liability
By answering the question as certified, approving the decision below, and concluding that the district court "was correct in its conclusion," the majority's opinion leaves the impression that this Court is validating the Second District's interpretation of this Court's precedent. Majority op. at 205. Relying primarily on Gracey, the Second District determined that a breach of the duty of care imposed by section 381.004(3)(f) gives rise to tort liability. It concluded that "[w]hen a statute creates a clear duty of care, the violation of that duty can `generate[ ] a viable cause of action in tort.'" Abril, 884 So.2d at 209 (quoting Gracey, 837 So.2d at 353, and citing deJesus v. Seaboard Coast Line R.R. Co., 281 So.2d 198 (Fla.1973), as well as Lewis v. City of Miami, 127 Fla. 426, 173 So. 150 (1937)). The Second District reached this conclusion without any examination of legislative intent, particularly the efficacy of the express statutory remedies.
The majority's apparent agreement with the Second District's outdated analysis is exacerbated by the breadth of its holding. The majority holds "that an entity that negligently and unlawfully violates a patient's right of confidentiality and privacy in disclosing the results of HIV testing of the patient may be held responsible in a civil negligence action for damages caused to the patient by the unlawful disclosure." Majority op. at 203. This holding represents a significant change in Florida tort law. Previously, a cause of action for breach of confidentiality or invasion of privacy had been limited to the province of intentional torts. See, e.g., S. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317, 320 (Fla.2005) (categorizing invasion of privacy claims as within the gamut of intentional torts); Rowell v. Holt, 850 So.2d 474, 478 n. 1 (Fla.2003) (same). By approving a cause of action for a nonintentional, negligent breach of a duty of confidentiality, the majority expands breach of confidentiality or invasion of privacy actions to the much broader realm of general negligence. In doing so, the majority recedes from this Court's prior decisions sub silentio. Simply stated, the majority's broad holding effectively modifies or abrogates the common law by recognizing a new common law cause of action for the negligent breach of the duty of confidentiality created by section 381.004(3)(f).
B. Consistency with Legislative Intent Is Necessary
Adding to the legislatively prescribed remedies for breaches of a statutory duty by creating a new common law remedy without any meaningful examination of legislative intent is contrary to the judiciary's proper function in our form of government. It is contrary to the principle this Court recognized over twenty-five years ago, when it said:
Raisen v. Raisen, 379 So.2d 352, 353-54 (Fla.1979). Similarly, it is contrary to the principle recognized in Murthy v. N. Sinha Corp., 644 So.2d 983, 985 (Fla.1994), where this Court unanimously agreed that "legislative intent . . . should be the primary factor considered by a court in determining whether a cause of action exists when a statute does not expressly provide for one." (Emphasis added.) It is also contrary to the evolution in tort law that has been recognized by the Restatement (Second) of Torts since 1979, when the authors adopted section 874A (Tort Liability for Violation of Legislative Provision) to supplement the approach previously suggested by section 286 of the Restatement
Raisen, Murthy, and section 874A of the Restatement recognized a fundamental, general principle: (1) if the Legislature expressly provides remedies for the breach of a new duty it imposes (and a private remedy is not included among these remedies), and (2) there is no indication that the Legislature intends to change the common law by providing a private remedy for a breach of that duty, the courts should not modify the common law in order to create a remedy. In other words, except in very unique cases, the courts should accept the Legislature's express choice of remedies for the breach of a duty it created and not modify the common law to create an additional remedy.
As stated earlier, while the courts certainly have the discretion to add a private remedy to the remedies provided by the Legislature, they "must be careful to exercise that discretion cautiously and soundly." Restatement (Second) of Torts § 874A cmt. d (1979). It must be exercised cautiously in order to preserve the important boundary between judicial and legislative powers.
Section 874A of the Restatement (Second) of Torts suggests a meaningful method for thoroughly examining legislative intent. Under this method, the court initially considers whether the Legislature intended to create a private civil remedy or to modify the common law in order to provide a private remedy in tort. Restatement (Second) of Torts § 874A cmt. c (1979). If the court finds the legislature never contemplated the issue of a private civil remedy, "the primary test for determining whether the courts should provide a tort remedy for violation of the legislative provision is whether this remedy is consistent with the legislative provision, appropriate for promoting its policy and needed to assure its effectiveness." Restatement (Second) of Torts § 874A cmt. h (1979). Using this Restatement method of examining legislative intent, I will establish
C. Legislative Intent of Section 381.004
The language of section 381.004 does not manifest any intent to create a private claim in negligence. See DeGregorio v. Balkwill, 853 So.2d 371, 373 (Fla.2003) ("Legislative intent is determined primarily from the statute's language.") (citing Hayes v. State, 750 So.2d 1, 3 (Fla.1999)). If the duty of confidentiality created in section 381.004(3)(f) is breached, the individual offender is to be sanctioned administratively or punished criminally as provided by section 381.004(6). Section 381.004(6) provides:
§ 381.004(6), Fla. Stat. (1996 Supp.). Nothing in this statute suggests that the Legislature intended to create a private remedy in tort, much less that the courts should create a brand new tort for the negligent disclosure of testing results based on this statute.
Additionally, nowhere in the legislative history of this act is there any indication that the Legislature ever intended to provide a private remedy or alter the common law rule that a recoverable breach of confidentiality must be intentional.
In determining whether it would be appropriate to create a private remedy, a court should look at "[t]he nature of the legislative provision," "[t]he significance of the purpose that the legislative body is seeking to effectuate," "[t]he adequacy of existing remedies," and "[t]he extent to which the tort action will aid or supplement or interfere with, existing remedies and other means of enforcement." Restatement (Second) of Torts § 874A cmt. h (1979).
The nature of section 381.004 does not provide a basis for the judiciary to create an additional remedy. The statute is very specific in its regulation of conduct, clearly delineating what actions are prohibited. Section 381.004(3)(f) provides:
This provision very clearly prohibits the disclosure of HIV test results or the identity of any person who receives an HIV test. In other words, section 381.004 imposes a strict duty of confidentiality on individuals who have knowledge of HIV testing. The statute does not employ broad general terms that would only acquire specific meaning after the court supplies a remedy for the benefit of individuals receiving HIV tests. Thus, court action is not required to give the statute or the duty the statute creates specific meaning.
Moreover, the Legislature's purpose in enacting section 381.004 does not lend itself to the judicial creation of a private civil remedy. The Florida Legislature was
The Legislature was looking for ways to encourage HIV testing as a means of protecting public health. The Legislature was not seeking to remedy private harms suffered by specific individuals through the use of monetary damages. From the statement of its purpose in enacting section 381.004, it is clear that the Legislature did not intend to create a private tort remedy, much less that the courts would subsequently create a brand new tort for the negligent disclosure of testing results based on this statute.
Further, the remedies provided by section 381.004 seem sufficient to effectuate the Legislature's purpose of facilitating HIV testing for the protection of public health. As stated previously, if the duty of confidentiality created in section 381.004(3)(f) is breached, the individual offender is to be sanctioned administratively or punished criminally as provided by section 381.004(6). I find no basis to conclude that these penalties are insufficient to ensure the confidentiality necessary to encourage HIV testing. Nor do I find any basis to conclude that a private civil remedy would be a more efficacious deterrent for negligent breaches than facing the possibility of losing one's professional license and livelihood as well as the possibility of criminal charges. Disturbingly, the majority completely ignores this fundamental issue. Nowhere does it explain how the creation of a new tort action will ensure greater compliance with the statutory duty of confidentiality. Therefore, absent any reason to believe that the express statutory remedies as well as the preexisting common law remedies are insufficient to meet the Legislature's purpose, this Court should not create a new, additional remedy for which the Legislature itself did not expressly provide.
To summarize, the Florida Legislature was addressing a public health issue when it created the duty of confidentiality for HIV testing. It was looking for ways to encourage HIV testing. In creating this very specific duty, unlike in Gracey, the Legislature did not create gapfilling authority for the courts to create new remedies. Instead, it selected both administrative and criminal remedies for breaches of this duty. In making this selection, it did not provide for a private action in negligence, and none existed at the time the statute was enacted. Moreover, the existing remedies seem sufficient to accomplish the Legislature's purpose. Given these facts, I respectfully believe that the majority opinion is an abuse of this Court's discretionary authority to fill any perceived remedial gap by creating a new private remedy.
D. Distinguishing Gracey
Finally, this case is clearly distinguishable from Gracey, 837 So.2d 348. In Gracey,
More particularly, Gracey is distinguishable from Abril for four reasons. First, in Gracey, the Court provided a private cause of action for the breach of a statutory duty using a preexisting tort rather than creating an entirely new cause of action. Second, unlike the statute in Gracey, section 381.004 was enacted as a comprehensive effort to address a critical public health crisis. Third, unlike section 381.004, the statute in Gracey provided no remedy or sanction for a breach of the duty of confidentiality it imposed. Indeed, the Gracey opinion emphasized this fact. In light of the complete failure of that statute to provide a remedy for the duty created, it was appropriate for this Court to thoughtfully consider whether to infer that the Legislature would intend a private cause of action. See generally Restatement (Second) of Torts § 874A (1979).
Fourth, Gracey is distinguishable because the common law tort that arose from the breach of the duty of confidentiality under chapter 491 was a claim for breach of a fiduciary duty. 837 So.2d at 357. This difference in the nature of the duty owed is significant, especially as it relates to the certified question about the impact rule.
Respectfully, as I have outlined in this dissent, the majority opinion in this case is, at best, unfortunate. The question it answers is not supported by the record. The
WELLS, J., concurs.
The Second District noted that the department made no argument disputing its responsibility under this statute, and it has raised no such argument in this appeal. Abril, 884 So.2d at 212 n. 3.
Abril, 884 So.2d at 209-10.
Frank H. Easterbrook, Statutes' Domains, 50 U. Chi. L.Rev. 533, 546-47 (1983) (footnotes omitted).