Appeal court puts wrinkle in plaintiff’s plan to notify potential class members

Appeal court puts wrinkle in plaintiff’s plan to notify potential class members
Eleni Kassaris says she is surprised the court didn''t tell doctors to get patient consent to release information to the class counsel.
The British Columbia Court of Appeal says patient privacy outweighs the need to inform potential members of a pending class action involving an injectable wrinkle treatment.

In Logan v. Hong, the appeal court looked at whether doctors across Canada should be required to provide contact information for patients they treated with a cosmetic facial product injected into the skin. It is alleged the French manufacturer, Dermatech, and Canadian distributors failed to warn patients and doctors of the risks associated with the use of the product.

About 11,000 units of Dermalive were sold in Canada from 2003 until 2007 when sales in Canada were suspended. Some patients have reportedly experienced various degrees of adverse reaction, including painful lumps, scarring, and permanent disability such as the inability to smile.

In her affidavit, Sharon Logan of Nanaimo, B.C., said on May 18, 2006 her doctor injected Dermalive into her nasolabial areas, lip line, lip roll edges and “marionette puppet area.” About six months later she developed lumps on her face and her condition became progressively worse.

In 2011, when the B.C. Supreme Court certified the class action in Logan v. Dermatech, her counsel proposed notice be provided by a direct mailing to those who had been injected with Dermalive, and sought an order requiring a large number of physicians in Canada who may have injected patients with Dermalive to provide her counsel with those patients’ names, addresses, and other contact information.

The doctors who were the subjects objected but Justice Robert J. Sewell ordered the physicians to provide the information to counsel for the plaintiff.

In the time between the order being granted and the appeal, lawyer David Klein of Klein Lyons in Vancouver, who acted as co-counsel providing litigation support to the plaintiff’s lawyers from Rosenberg & Rosenberg, said a request went out to “hundreds” of doctors for the information and his firm received back names and addresses for “over 700 class members.”

“We mailed notices to those 700 class members and not a single person contacted us and said, ‘Oh my goodness, how did you get this information?’ Or, ‘I’m filing a complaint,’” says Klein.

Those who responded said they were “very pleased” they found out about the lawsuit, but that information was not part of the appeal record, says Klein.

“There is much angst and outrage over the disclosure of this information to us by the panel but there was none expressed by any of the class members, so it’s a very unfortunate result in that sense,” says Klein.

The original decision by the B.C. Supreme Court was surprising says Randy Sutton, a lawyer with Norton Rose Fulbright LLP.

“As the judge noted, 95 per cent of the people may not have the issue. So from the perspective of the doctor having to do the work and the cost involved and also that the relationship with a patient is so sacred that any kind of interference really has to be justified and that’s what the Court of Appeal was really concerned about,” he says.

In her decision the B.C. Court of Appeal Justice Mary Saunders wrote: “Laudable as the plaintiff’s intention may be to seek redress for persons who may have a claim to compensation for deleterious consequences from this medical treatment, such generous intention does not justify, in my view, 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 this treatment.”

The court also noted: “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.”

The sort of patient information being sought in the case is probably not “of the most sensitive variety,” says privacy lawyer David Fraser of McInnes Cooper, however the definition of privacy is one the courts continue to wrestle with.

“I think this decision is a good signpost along the route of this building of jurisprudence about how courts are increasingly taking privacy into account,” says Fraser. “The lesson for lawyers is there is wider philosophy that says you need to find the least privacy intrusive way of doing something and this doesn’t necessarily cut it. There are other ways of notifying class members — you may have to do it with a shotgun approach rather than a laser focus on the individuals.”

The lower court came out in favour of advancing the interest of the litigation process, not that of privacy, says Eleni Kassaris, partner with Blake Cassels and Graydon LLP.

“The Court of Appeal did say although giving people access to justice and the litigation process is an important public interest, it isn’t actually paramount to the patient confidentiality right people enjoy in privacy of their medical treatment. I think that’s where the lower court was being more practical and more legal-interested based,” says Kassaris.

She adds she is surprised the order didn’t stipulate the doctors first obtain patient consent to release information to the class counsel.

“What jumped out at me was why not get the doctors to do a mailing informing patients that if they wanted to be part of a class action to fill out a form or something like that,” she says.

Klein says he thinks the appeal court panel “got it wrong” but doesn’t think it’s worth the delay and expense to try and take the case up to the Supreme Court of Canada.

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