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Biddle v. Warren General Hospital9/15/1999
debt collectors, researchers, discharge planners, peer review boards, consultants, vendors, technology assistants, and volunteers -all of whom may be affected by this expansive opinion. Conversely, a patient release form must now be so broad and encompassing as to be virtually meaningless.
Attorneys may face similar constraints now that they will be viewed in terms of third parties and not agents of their clients. Attorneys may now be subject to potential liability for "inducing" a client to reveal to them privileged information that the client possesses. It may now be necessary for an attorney to advise a client that, because of all the privileges and confidential information that the client potentially may have, the client should not disclose everything to the attorney in order for both the attorney and the client to avoid potential liability for breach of a confidence. Such a scenario, however absurd, is now only too real. I believe the majority's opinion will severely curtail full and frank disclosure of information between an attorney and a client.
I also question how to measure damages in a breach of confidentiality case. The majority remands this cause to the trial court for consideration of class certification. What damages could have been incurred from a cursory review of a patient's hospital registration form that eventually ended up back in storage? The real culprit in this case is the disgruntled employee who took the records and turned them over to a television station. How can the law firm be liable for such theft and the callous disregard of the patients' rights? Don't the employee's actions break the chain of causation? I wonder how severely traumatized were the few patients who were contacted by the law firm offering to help them secure government benefits? Assuming arguendo that a tort had been committed, I fail to see any resulting damages.
There is no need to create a new tort because sufficient remedies for the unauthorized, unprivileged disclosure of nonpublic medical information to a third party already exist under current law. I believe that the issues of "inducing the unauthorized, unprivileged disclosure of nonpublic medical information" and "qualified privilege" are red herrings and not material. The extent of the patient release given to the hospital is not an issue. This is simply a case about a hospital's right to provide information, albeit confidential patient information, to its lawyers for review and the lawyers' corresponding right to hold this information in confidence. No more.
I concur with Justice Cook's dissenting opinion that, at the very least, this court should remand this matter to allow the parties to proceed to litigate the merits of the case in light of this newly created tort. Due process requires such a remand.
For these reasons, I respectfully dissent.
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