Logan v. Hong

2013 BCCA 249
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The plaintiff qualified for a class action suit and sought to gather members to the class. The class action was filed for physical harm suffered by patients who were injected with a cosmetic facial filler called Dermalive manufactured by Dermatech, Intradermal Distribution Inc., and Vivier Pharma Inc.

The plaintiff proposed to directly notify class members via mail and sought an order requiring physicians in Canada who may have injected patients with Dermalive to provide her counsel with the names, addresses, and additional information of the patients.

The Supreme Court of British Columbia ordered the physicians to provide the patient information.

The British Columbia Court of Appeal held that seeking damages for patients who may have a claim for compensation from the negative consequences of being injected by Dermalive did not justify the invasion of privacy that occurs when a physician must disclose personal information about patients. Although the order did not require medical records to be revealed, the order disclosed that patients underwent a particular medical treatment.

The Court discussed the special place of confidentiality in a physician-patient relationship, emphasizing that a patient has the right to require that the private information not be divulged unless there is a very important overriding reason.

“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. 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.” Para. 11.

“Although the judge observed that the order does not require disclosure of the medical records, this does not appear to me to be a helpful distinction. The order discloses the fact of a particular medical treatment, in addition to the address and contact information, all of which the patient may choose not to broadcast. Further, it matters not, in my view, the nature of the medical treatment. Here the treatment in issue is a cosmetic one, but the applicable principle protects patients in that situation just as it would were the treatment for mental health issues, sexual and procreative issues, or any of the myriad of medical issues of a more general nature.” Para. 12.

"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.” Para. 18.

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