Performing recklessly in breaching the confidential medical recordsdata of sufferers successfully falls inside a hospital insurer’s industrial coverage exclusion for committing an ‘intentional act,’ Ontario’s high courtroom has dominated.
The Ontario Court docket of Enchantment discovered a hospital insurer, the Healthcare Insurance coverage Reciprocal of Canada, doesn’t have an obligation to defend a authorized motion introduced in opposition to a former hospital worker who allegedly accessed hundreds of sufferers’ medical data over a decade to assist feed a private drug dependancy.
The courtroom has not but heard the deserves of the principle case. However its resolution on whether or not the insurer has an obligation to defend clarifies a comparatively new privateness breach tort of “intrusion upon seclusion.”
The obligation to defend resolution reveals Catharina Demme is a former registered nurse who labored on the Brampton Civic Hospital till December 2016. The hospital terminated Demme’s employment at the moment after discovering she had misused an computerized treatment shelling out unit (ADU) over 10 years, from 2006 till 2016, to acquire roughly 24,000 Percocet tablets.
The courtroom will in the end decide whether or not Demme used affected person data to wrongfully entry the ADU and acquire the Percocet. The hospital notified 11,358 sufferers whose medical data had been affected.
A number of authorized actions have been launched.
In Demme v. Healthcare Insurance coverage Reciprocal of Canada, the hospital’s insurer famous hospital workers are coated for legal responsibility beneath the hospital’s insurance coverage coverage for any ‘bodily damage’ brought about to sufferers that will ensue from the hospital worker’s actions. The definition of bodily damage within the coverage consists of protection for “invasion or violation of the proper of privateness, wrongful eviction or wrongful entry.”
Nonetheless, the insurer denied an obligation to defend Demme beneath the coverage as a result of it claimed her actions met the insurance coverage coverage’s exclusions for ‘intentional’ and ‘felony’ acts.
Demme sued the hospital’s insurer, saying it had an obligation to defend. However the courtroom principally discovered Demme’s alleged actions had been ‘reckless’ and due to this fact match throughout the insurance coverage coverage definition of an ‘intentional act.’
“One who deliberately intrudes, bodily or in any other case, upon the seclusion of one other or his personal affairs or issues, is topic to legal responsibility to the opposite for invasion of his privateness, if the invasion could be extremely offensive to an affordable individual,” the Ontario Court docket of Enchantment dominated. “The important thing options of this reason behind motion are, first, that the defendant’s conduct have to be intentional, inside which I would come with reckless…”
The courtroom goes on to handle Demme’s reference to the Ontario Court docket for Enchantment’s 2012 resolution in Jones v. Tsige, during which the courtroom first acknowledged a brand new privateness legislation tort for “intrusion upon seclusion.”
“Though the Jones resolution doesn’t include a definition of ‘reckless,’” the courtroom acknowledged in Demme, “it locations reckless conduct side-by-side with intentional or deliberate conduct….One can not tease from the dialogue in Jones any assist for the proposition superior by Ms. Demme that Jones’ inclusion of a reckless act throughout the tort of intrusion upon seclusion may contain unintentional conduct.”
Demme advised the courtroom her ‘intentional act’ was in reality to entry the Percocet to feed an dependancy. The intent was to not trigger bodily hurt to the folks whose medical data she accessed to acquire the drug. However the courtroom didn’t agree along with her distinction that you possibly can be ‘reckless’ with out being ‘intentional.’
“Stepping again from the consideration of the definitional parts of the tort and the idea of recklessness, Ms. Demme’s obligation to defend utility proceeds in opposition to the background of allegations that she unlawfully accessed affected person data hundreds of instances over the course of a decade,” the courtroom dominated. “For Ms. Demme to contend that within the face of such claims there exists a ‘mere chance’ that her alleged conduct could possibly be characterised as inflicting damage that was neither anticipated nor supposed from her standpoint merely lacks any air of actuality.”
The courtroom went on to make clear that the anticipated and supposed hurt was executed to the hospital sufferers whose data she allegedly accessed to get the Percocet.
“The character of the [intrusion upon seclusion] tort is such that the intention to entry the data quantities to an intention to trigger damage,” the courtroom dominated. “That’s as a result of beneath the tort the damage brought about is the sufferers’ lack of management over their personal info.”
Demme’s ‘reckless’ actions to entry the affected person’s data would thus fall throughout the insurance coverage coverage’s exclusion for ‘intentional’ acts, the courtroom added.
Picture courtesy of iStock.com/BenAkiba
