The British Columbia Court of Appeal (BCCA) recently ruled to protect patient-physician confidentiality in the context of a class action in Logan v. Hong. It set aside an order that would have required physicians who were not parties to the litigation to provide the names and contact information of patients to whom they have administered injections of a cosmetic dermal filler. The BCCA held that such an order impermissibly pierces the physician-patient relationship and trenches upon the privacy interests of patients in that relationship in circumstances that do not meet the high test for such interference.
The lower court had certified a class action on behalf of "all persons who were injected with [a dermal filler called] Dermalive in Canada and who thereafter developed granulomas in the areas injected with Dermalive." Dermalive was designed to be injected into patients to reduce the appearance of wrinkles and other cosmetic characteristics associated with aging. The representative plaintiff, Ms. Logan, had been injected with Dermalive into various areas of her face. Five or six months after being injected with Dermalive, she developed red lumps or granulomas in her facial area that became progressively worse. She alleged permanent disfigurement of her face as a result of the injections of Dermalive. The lower court certified common issues regarding the product's fitness for use, an alleged failure to warn, whether there was a breach of a duty of care to class members, the availability of punitive damages, and a statutory claim pursuant to the Business Practices and Consumer Protection Act (see Logan v. Dermatech).
Once certified, section 19 of the Class Proceedings Act required counsel for the representative plaintiff to give notice to the class members. The plaintiff's counsel reached the conclusion that any manner of service other than direct mail would be problematic and unlikely to reach the class members and that the best way to locate the class members would be through the physicians who treated them with Dermalive. The plaintiff's counsel made an application to the court for an order that 63 physicians and clinics across Canada who may have injected patients with Dermalive provide the names, addresses and any other contact information in their possession of those patients to counsel for the plaintiff. The plaintiff claimed that this was the most efficient way to give notice to the class.
At the lower court application, the physicians who were the subject of the proposed order appeared and objected. However, the plaintiff was successful in obtaining an order that the physicians provide the requested patient information. The physicians sought and were granted leave to appeal on the issue of whether the order breached the privacy rights of persons who were not parties to the litigation and not members of the class (see Logan v. Hong).
The Court of Appeal noted the laudable intention of the plaintiff's order to facilitate notice of a class action to persons who may be members of the class, and thereby provide those persons residing in British Columbia the opportunity to opt out, and those residing outside British Columbia the opportunity to opt in. The Court of Appeal held that the intention did not justify the invasion of privacy that is inherent in dipping into the physician-patient relationship to discover the names, addresses and contact information of persons who received treatment with Dermalive. The BCCA noted that a patient's right of confidentiality is superseded only by issues of paramount importance:
"Each patient is entitled to maintenance of the confidentiality implicit in his or her attendance in a physician's examining room and protection of his or her privacy on a personal matter, absent serious concerns relating to health or safety, or express legislative provisions compelling release of the information in the public interest. In my view, the judge erred in principle by elevating the purposes of the Class Proceedings Act and the search for legal redress above the fundamental principle of confidentiality that adheres, for the benefit of the community, to the physician-patient relationship."
In addition, the Court of Appeal noted that, in this particular case, nearly 95% of the patients whose names were expected to be produced under the order would not be members of the class, but this was not material to the decision. The BCCA expressly stated that it would have formed the same conclusion if the proportion of potential class members to non-class members was reversed, (i.e., only 5% of those patients affected would not have been members of the class). Further, the distinction between an order for disclosure of names and contact information versus disclosure of medical records was not of assistance to the plaintiff, as the court concluded that disclosure of the names, in the context of the order, would disclose the fact that a person received a particular medical treatment. The nature of the medical treatment as a cosmetic one was also of no consequence to the Court of Appeal's reasoning.
The BCCA concluded that the value of redress through the justice system is significant, but "one cannot say that recovery of money trumps the rights of the patient to keep private both the nature of the medical services received and the contact information held by the physician." The Court of Appeal clearly values the confidential nature of the physician-patient relationship and patient privacy, and will not permit a breach of that relationship solely for the purpose of providing notice in a class action.
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