In a case that pitted privacy rights against the efficacy of class notification, the British Columbia Court of Appeal has come down squarely on the side of upholding privacy rights. Two years ago, the British Columbia Supreme Court certified a class proceeding against Dermatech, a French manufacturer, and its Canadian distributors, Intradermal Distribution Inc. and Vivier Pharma Inc., where it was alleged that the Defendants were negligent in the manufacture and distribution of Dermalive, a medical cosmetic product designed to be injected into patients to reduce wrinkles: Logan v Dermatech, Intradermal Distribution Inc.1

The class was approved for class members who developed granulomas2 in the areas injected with Dermalive. The potential class was estimated at 600, calculated on a study that indicated 5.5% of Dermalive users developed complications. Just under 11,000 syringes of Dermalive were distributed in Canada before sales ceased in 2007.

Upon certification, the Plaintiff proposed to use direct mailing as the most effective way to give notice to class members. To do this, the Plaintiff successfully applied for an order forcing a large number of doctors who may have injected patients with Dermalive to provide the names, addresses, and other contact information of their patients to the class representative. None of the doctors was a party to the class proceedings.

The doctors who were the subjects of this order applied successfully to the Court of Appeal to set aside the disclosure order.3

In analyzing the reasons for granting disclosure, the Court of Appeal held that the need for the representative class plaintiff to provide notice to the class did not meet the high threshold test for piercing the confidentiality of the doctor-patient relationship. In coming to this conclusion, the Court gave full weight to the principles of confidentiality and privacy guarding this relationship. These principles trump both the purposes of the Class Proceedings Act and the value of legal redress (i.e., recovery of money), especially since nearly 95% of those proposed patients to be contacted were not even expected to be class members. The Court added that the outcome would be the same even if the vast majority (e.g., 95%) of the patients were expected to be class members.

The key driver for this result was the finding by the Court that maintaining confidentiality and privacy within the doctor-patient relationship is a fundamental principle that can only be overridden where there are serious health or safety concerns, or express legislative provisions compelling the release of information in the public interest. This has been a long-standing and significant part of the common law in Canada. The Court relied on historical case law, such as Halls v Mitchell,4 where Canada's highest court held that the patient has an absolute right to require that medical information be kept secret, unless there is some paramount reason which overrides it, such as individual or public safety, and McInerney v MacDonald,5 where it was held that medical information is highly private; going to the personal integrity and autonomy of the individual. The patient has a basic and continuing interest in the usage of and access to this information.

The Court of Appeal made reference to the Canadian Medical Association's Code of Ethics which states similar principles in "Privacy and Confidentiality" as part of the "Fundamental Responsibilities" of doctors. The Class Plaintiff attempted to argue that there was a distinction to be drawn between releasing confidential medical records and releasing less sensitive patient contact information. The Court rejected this assertion, noting that the disclosure of contact information would still reveal the fact of a particular medical treatment. The nature of the medical treatment was also not viewed as a useful factor because privacy and confidentiality apply to cosmetic medical treatments as well as to the treatment of other medical issues.

Previous decisions in which non-parties have been required to turn over confidential information for the purposes of identifying class members were distinguished by the Court, including Hoy v Medtronics Inc,6 where a judge ordered the defendant manufacturer to provide the names of the doctors and clinics to whom it had sold its product, noting that the manufacturer did not have a doctor-patient relationship with these doctors and clinics, who in turn were not in any way compelled to provide patient information as a result of the disclosure order. In Dalhuisen v Maxim's Bakery Ltd,7 where a judge ordered the BC Centre of Disease Control (CDC) to disclose the names and addresses of people infected with salmonella from eating the defendant's products, the Court noted that the information was transmitted to the CDC in the interest of public safety, a long-recognized reason to override doctor-patient confidentiality. In addition, since the CDC is a public body, the release of information was governed by the Freedom of Information and Protection of Privacy Act, which is not applicable to individual doctors.

Finally, the Court of Appeal distinguished two cases in which physician-patient confidentiality was not even an issue. The first was Farkas v Sunnybrook & Women's College Health Sciences Centre,8 an Ontario Superior Court of Justice decision in which only one thing was clear: the information sought related only to class members. The second was Dominguez v Northland Properties Corporation,9 in which the order to disclose involved information held by the defendant employer and related solely to class members. The Court of Appeal pointed out that confidentiality issues in the employment context do not rise to the level of doctor-patient privilege.

The Court of Appeal left two significant issues to be decided: whether ordering non-parties to disclose information is an impermissible transfer of class litigation costs, and whether it is within the jurisdiction of the court to order physicians outside British Columbia to provide the requested information. These interesting questions will be left to another case.