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May292013

BCCA upholds doctor-patient confidentiality in class action notice

The British Columbia Court of Appeal released its decision in Logan v Hong 2013 BCCA 249 on May 27, 2013.  The decision addresses whether non-party physicians can be ordered to disclose patient information to facilitate notice to potential class members in a medical product liability class action. 

The main action in Logan involved a BC class action that was certified against manufacturers on behalf of all persons in Canada who received injections of a cosmetic filler called Dermalive and suffered granulomas. 

During certification, the issue arose as to how the representative plaintiff, Ms Logan, would provide notice to potential class members.  She proposed direct mailing and sought an order that physicians across Canada who may have administered Dermalive provide her legal counsel with names, addresses and other contact information of the patients they injected.  The physicians in question were given notice of the application as affected persons but were not named parties in the action.  While they opposed the proposed order, the case management judge ordered the disclosure sought by the representative plaintiff. 

Leave to appeal was granted.  The Court of Appeal found that the disclosure order impermissibly breached doctor-patient confidentiality in circumstances where the high threshold to do so was not justified, and that the case management judge erred in elevating the purposes of the Class Proceedings Act to a level above the fundamental principle of doctor patient confidentiality. 

In doing so, the Court of Appeal reaffirmed the significance of confidentiality to the doctor-patient relationship, a principle which has been repeatedly stated by the Supreme Court of Canada.  

While the Court of Appeal noted that 95% of the expected disclosure would not involve class members, it commented that it would have reached the same conclusion if the proportion of potential class members to non-class members had been reversed.  According to the Court, although the value of financial redress is important, it cannot trump the right of patients to maintain the privacy and confidentiality of their medical information.

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