The Second Opinion: Class Actions Do Not Trump Physician-Patient Confidentiality Rights
The B.C. Court of Appeal has ruled that plaintiffs in a certified class action cannot compel the production of information about class members from the third party physicians who treated them. The decision in Logan v. Hong, 2013 BCCA 249 is an important reaffirmation of the confidentiality principle inherent in the physician-patient relationship, and a reminder that class proceedings legislation cannot derogate from substantive rights.
The Logan class action was certified in 2011, as Logan v. Dermatech, Intradermal Distribution Inc., 2011 BCSC 1097. The class consisted of all persons injected with the anti-wrinkle product "Dermalive", who thereafter developed granulomas (or red bumps) in the areas injected.
In 2012, the plaintiff obtained an order requiring numerous third party physicians and clinics throughout Canada to provide the names, addresses and other contact information of persons to whom they had administered Dermalive. The purpose of the order was allow the plaintiff to provide the notice of certification required under s. 19 of the B.C. Class Proceedings Act to the class members by direct mailing. The physicians were granted leave to appeal that order to the Court of Appeal.
The Logan Decision
In reasons dated May 27, 2013, the Court of Appeal set the production order aside, finding that it "impermissibly pierces the physician-patient relationship in circumstances that do not meet the high test for such interference". Saunders J.A., who delivered judgment for the Court, held that the order was problematic even though it did not require disclosure of medical records per se, and related to a cosmetic treatment rather than one of a more sensitive nature (e.g., for mental health, sexual or procreative issues). She also found it irrelevant what proportion of the patients whose names were expected to be produced were members of the class. According Saunders J.A.:
...[T]he 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.
The value of redress through the justice system is significant. However, in my respectful view, one cannot say that recovery of money trumps the rights of the patient to keep private both the nature of medical services received and contact information held by the physician. (paras. 11 and 18)
The ruling in Logan will be important in future medical products and pharmaceutical class actions where plaintiffs seek information from third party physicians about the treatments provided to individual class members. The Court of Appeal's reasons are a clear indication that such information cannot be compelled in violation of patient confidentiality rights merely in order to facilitate the procedural aims of class actions. The principle of access to justice, in other words, has limits; it does not enable access to private medical information from third parties regarding patients who may or may not be members of the class.
The McCarthy Tétrault Opinions Group consists of members of the firm’s litigation department whose practices focus on written advocacy and the provision of strategic advice and opinions in the context of complex business disputes and transactions. The members of the Opinions Group are Anthony Alexander, Martin Boodman, Brandon Kain, Hovsep Afarian and Kirsten Thompson.
Logan v. Hong; Dermatech; Dermalive; class actions; physician; patient; privacy; confidentiality; privilege