Both sides are getting ready to discover witnesses in a class action against South West Health for an employee accessing patients’ medical records without a medical reason
A class action against South West Health for inappropriate access to personal medical records is moving forward next week. The case is at the discovery phase where both sides will questions each other’s potential witnesses to get an idea of how they will proceed from there.
In 2011, 707 people received letters from the South West Nova District Health Authority saying their medical records were accessed by an employee without a medical reason. Among those people were Alicia Hemeon and Willa Magee, who are the representatives for the class action and will be questioned next week. “To know that an employee of South West Health inappropriately accessed my private
medical records is humiliating, distressing and heart-wrenching,” said Hemeon in an affidavit. In June of 2012, Blaise MacNeil the CEO of South West Health, released a statement saying “We sincerely apologize to all patients and the community that this breach of confidentiality has occurred. The confidentiality of patient information is of vital importance in South West Health.”
The class action certification states that the class consists of anyone who received a letter, including those who were later informed that that their records were accessed for legitimate reasons.
In the amended statement of claim, the class claims intrusion upon seclusion, vicarious liability and negligence.
“One of the elements to a successful intrusion upon seclusion is that the breach of privacy is highly offensive to a reasonable person,” says Mike Dull a lawyer from Wagners law firm who represents the class. “We say that the mere act of going into a person’s medical records inappropriately is highly offensive to a reasonable person.”
Since the case is ongoing South West Health was unable to comment at this time, but in their statement of defence they claim no intrusion upon seclusion because they deny that it is a free-standing tort in Nova Scotia.
Intrusion upon seclusion became a binding president in Ontario in 2012 says Hilary Young, a law professor at the University of New Brunswick in Fredericton. She says that with new technology, claims such as trespassing may not be enough to cover all forms of privacy breach.
“I think there’s a good chance that the courts will recognize it in Nova Scotia,” says Young. “If I were betting, I would bet that they would adopt it because there’s no good reason not to.”
South West Health has asked for this claim to be dismissed in their statement of defence because it is not recognized. If not, “South West Health specifically denies that there was a significant invasion of private records… as many individuals’ records were viewed on only one occasion and/or for less than one minute.”
The class is also claiming vicarious liability against South West Health. “Vicariously liability is when you hold someone, usually an employer, legally responsible for someone else’s act,” says Young.
She says the plaintiffs would have to prove two things for this to apply. That the relationship was employee and employer, and that the actions were within the scope of the employee’s employment.
“I think clearly the employee is liable,” says Dull, “but she, you understand, is a young girl now unemployed living in the south shore who doesn’t have of course the resources to compensate the 700-and-some people… so we turn of course to her employer.”
In their statement of defence South West Health claims they are not vicariously liable because “any actions alleged by the Plaintiffs and Class Members were unauthorized, deliberate and intentional actions taken by (the employee), unrelated to the work assigned to her.”
They also say that they have policies and procedure in place to managed personal medical records and that their employees are trained how and when to appropriately access them.
“They say she acted on an isolated, kind of rogue basis,” says Dull. “So the case really will turn on that question.”
Young says that it may be tricky for South West health to prove that the employee’s actions were not related to her job at the hospital.
Negligence on the part of South West Health is also being claimed in the class action against them. “Negligence means that… you acted unreasonably and because you acted unreasonably in a certain way someone was injured as a result,” says Young.
In this case, the injury to Hemeon and Magee, as well as the other class members, is not physical but rather emotional because their records were accessed by a health authority that they trusted.
Dull says when class members started contacting the firm their main complaint was that South West Health supposedly knew this breach of privacy was happening for a while and did not address it. This fits into their claim of negligence.
They also claim that because the employee was put in a position where she could look at patients’ medical records for what Dull says is “way to long a period”, they were being negligent.
South West Health denies any negligence on their part because they claim they “operated in accordance with the standards and practices generally known, and in place at the relevant time.”
They also say that they have policies and procedures that were made know to all staff members stating that they are responsible for protecting the privacy of patients’ personal information. This Thursday the case moves into what is called discovery where both sides will be able to question potential witnesses.
“They basically get to interview them to get a sense of what their answers will be to certain questions,” says Young, “and that will help them decide what their strategy will be for any trial. So no surprises.”
Dull is hoping for a trial early next year. “I suspect the health authority wants to delay this as long as possible, it’s big liability for them.”