For those following the Providence Health System medical record data theft case, this is a summary of oral argument at the Oregon Court of Appeals last Friday. The three-judge panel, Judges Haselton, Armstrong, and Rosenblum were completely engaged and extremely well prepared.

There are several major legal issues. The first is whether Oregon law recognizes that patients may recover for emotional distress when a medical provider wrongfully fails to protect confidential patient information. Oregon has been pretty conservative in its approach to emotional distress damages.  The Court of Appeals earlier cases have generally required either physical injury or a very short list of exceptions.

While I would love to see a change in the Court’s framework, it’s not necessary to resolve this case. The law recognizes what are called “special relationships,” and that includes the relationship between patients and their medical providers. So the gist of the argument was that in a special relationship case like this one, patients can recover non-economic damages when medical providers wrongfully fail to keep patient records confidential.

Sounds kind of like a no-brainer, I suppose, but the Court was definitely grappling with how the lines are to be drawn.  These gray areas are perhaps more complicated for the Court because they have to decide this case but also think ahead to the implications of the ruling.

The other big legal issue arose under the Unlawful Trade Practices Act claim. The Court seemed to have no trouble understanding that patients who spent money to protect themselves suffered a recognizable loss for purposes of the Unlawful Trade Practices Act.

I have to say that the patients’ legal team felt like oral argument went well. But it’s important to not read too much into that. I’ve won cases where I felt good about oral argument and lost them, too.  So it’s not necessarily the best predictor. My best guess is that we’ll hear from the Court with a decision before the end of the year.

When that day comes, it will not be the end. Instead, it will simply be another day in this long fight.

David Sugerman

Catching up–because we are way behind–here’s the first of two overdue document updates. This link appellants-reply-brief-and-reply-excerpt-of-recort pulls up a copy of the patients’ reply brief in the Oregon Court of Appeals in the proposed class action against Providence for loss of medical records.

Here’s a link to the entry that will pull up the patients’ opening brief, as well.

David Sugerman

Back in late 2005, a car prowler stole unencrypted computerized medical records of 365,000 Providence Health System patients from an employee’s car. We filed a case here in Portland on behalf of the 365,000 patients, and the trial judge granted Providence’s motion to dismiss the claim. We appealed and recently filed our opening brief with the Oregon Court of Appeals.

I co-authored the brief with my friend and colleague, Brian Campf. Here is a pdf version:

Providence Class Action: Patients’ Opening Brief Oregon Court of Appeals

Appeals move at their own pace. I don’t expect a decision from the Court of Appeals until 2009.

David Sugerman

This sounds familiar. In today’s news, a laptop stolen from the National Institute of Health contained unencrypted medical records on 2,500 patients. By way of full disclosure, I represent Portland-area patients in a case against the Providence medical system for a similar data loss.

I can’t help but be amazed that any medical information is stored without encryption. How can that not be the standard of care?

Adding insult to injury, the institution delayed reporting to patients, giving two very different reasons for the delay. First, the NIH spokesman explained that they didn’t want to cause undue patient alarm. And second, the agency concluded patients weren’t “at immediate risk.”

Okay, I’m totally jaundiced here. But doesn’t that statement–the lack of “immediate risk”–really mean, “They weren’t my medical records.”

After the Providence case, it should really be this simple: encrypt the records.

David Sugerman