Ketchum calls class action frivolous in dissent over CAMC class certification

CHARLESTON - The West Virginia Supreme Court of Appeals has certified a class action lawsuit against Charleston Area Medical Center for allegedly accidentally placing a database containing medical information on the Internet, while a dissenting justice claims the case is an example of a frivolous class action.

On June 24, 2013, the Kanawha Circuit Court issued an order that denied the plaintiffs' motion for class certification in their action against Charleston Area Medical Center and CAMC Health Education and Research Institute after they allegedly accidentally placed personal and medical information contained on a database onto the Internet.

The database included names, contact details, Social Security numbers and dates of birth for 3,655 patients.

Justices Robin Jean Davis, Brent D. Benjamin, Margaret L. Workman and Allen H. Loughry II voted in the majority, while Justice Menis E. Ketchum II issued a dissenting opinion. The opinions were released on May 28.

The threshold inquiry for the Supreme Court's consideration is whether the circuit court erred in finding that Larry Tabata, Shirley Chancey, William Wells, Donald R. Holstein Jr. and Kay Kirk, as named plaintiffs, lack standing.

"The circuit court determined that the petitioners lack standing because they have not suffered a concrete and particularized injury," the opinion states. "The circuit court's determination is based in substantial part on the petitioners' contention below that the common injury that they share with the proposed class members is the increased risk of future identity theft."

The circuit court reasoned that a prospective injury does not meet the requirement for standing of a concrete injury but rather is conjectural, according to the opinion.

"We agree with the circuit court that the risk of future identity theft alone does not constitute an injury in fact for the purpose of showing standing," the opinion states. "However, in their complaint, the petitioners also asserted cause of action for breach of confidentiality and invasion of privacy."

"Applying our law on standing to the petitioner’s breach of confidentiality claim, we find that the petitioners, as patients of CAMC, have a legal interest in having their medical information kept confidential. In addition, this legal interest is concrete, particularized and actual. When a medical professional wrongfully violates this right, it is an invasion of the patient’s legally protected interest."

Therefore, the petitioners and the proposed class members have standing to bring a cause of action for breach of confidentiality against the respondents, according to the opinion.

The petitioners also alleged a cause of action for invasion of privacy.

"Application of our law to the facts of this case indicates that the petitioners have standing to bring a cause of action for invasion of privacy," the opinion states. "The petitioners and proposed class members have a legal interest in privacy which is concrete, particularized and actual. Therefore, they have standing to bring a cause of action against the respondents for the alleged invasion of that legal interest."

The circuit court found that the petitioners have failed to show commonality among their claims and the proposed class members.

There are common questions such as whether the respondents' conduct breached the duty of confidentiality that a doctor owes a patient and whether the conduct invaded the privacy of the petitioners and the proposed class members, according to the opinion.

"Having found the existence of a common nucleus of operative fact and law and common issues, we believe that the circuit court abused its discretion in determining that the petitioners failed to meet the commonality requirement for class certification," the opinion states.

The circuit court also found that the lack of typicality prevents class certification. However, the Supreme Court believes as a practical matter, this case fits the definition of typicality between the petitioners and proposed class members, according to the opinion.

"When this court applies these guidelines to the instant facts, it is clear that common issues of law predominate over individual questions," the opinion states. "Simply put, all of the proposed class members are in the same position. Their causes of action are the same and they arise from the same event."

There is no evidence of unauthorized access of their personal and medical information, no evidence of actual identity theft and no evidence of economic injury arising from the alleged wrongdoing, according to the opinion.

Rather, all of the proposed class members allege that their interests in confidentiality and privacy have been wrongfully invaded by the respondents.

"Therefore, this court finds that common questions of law and fact predominate over individual issues for the purpose of class certification under Rule 23(b)(3)," the opinion states.

The Supreme Court emphasizes that the scope of its opinion is narrow.

"We hold only that the circuit court erred in finding that the petitioners lack standing and that the circuit court abused its discretion in ruling that the petitioners failed to meet the requirements for class certification of commonality, typicality, and the predominance of common issues of law or fact," the opinion states. "This court makes absolutely no determination regarding the merits or the lack thereof of the petitioners’ causes of action for breach of confidentiality and invasion of privacy such as whether the petitioners have adduced evidence sufficient to prove the elements of these causes of action."

The court reversed the June 24, 2013, order of the Kanawha Circuit Court that denied the petitioners’ motion for class certification and remanded the case to the circuit court for proceedings consistent with its opinion.

In Ketchum's dissenting opinion, he called the case a typical example of a frivolous class action lawsuit.

"The named plaintiffs' lawyer admitted during oral argument that discovery did not reveal that any of his client’s medical records or personal information was accessed or viewed by any unauthorized person," Ketchum's dissenting opinion states. "As soon as it was discovered the information was placed accidently on the internet it was removed before any unauthorized person viewed the named plaintiffs' records."

The majority opinion concedes that discovery reveals the named plaintiffs have suffered no injury, according to the dissenting opinion.

"No harm, no foul," his dissenting opinion states. "The plaintiffs lack standing to sue or represent a class of unnamed plaintiffs. Although the majority allows class certification, our law is clear that if discovery reveals that no unnamed member of the class has suffered harm that the trial judge should decertify the class action and dismiss the suit.

"Of course, this cannot occur until massive amounts of attorney fees are incurred by the defendants conducting discovery relating to more than 3,000 unnamed class members."

The plaintiffs were represented by Sean W. Cook of Meyer Ford Glasser & Radman.

The defendants were represented by Marc E. Williams, Nathan I. Brown and Jenna E. Hess of Nelson Mullins Riley & Scarborough LLP.

The case was first filed in Kanawha Circuit Court in February 2011 and was assigned to Circuit Judge James C. Stucky.

W.Va. Supreme Court of Appeals case number: 13-0766