October 27, 2021

Volume XI, Number 300

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Fertility Clinic That Sent Sensitive Email to a Patient’s Work Group Faces Lawsuit

A fertility clinic in California cannot escape a lawsuit brought by a patient after the clinic sent private information to the individual’s entire work team.

The clinic, Lane Fertility Institute for Education and Research (Lane), emailed a client regarding an embryo transfer procedure she had undergone the prior year, seeking information about her resulting pregnancy. Apparently, the request was made for the purpose of collecting data for the clinic’s annual report to the Centers for Disease Control as mandated by federal law and required for the clinic to keep its certification. The email was sent to the patient’s work email address, although she had specifically designated a private email address as her preferred method of contact.

After sending the email, Lane received an automatic response that the individual was out of the office on maternity leave and instructing senders to contact the client’s work team for immediate assistance. Lane did just that, emailing the data request—which contained personal and sensitive medical information—to the patient’s entire work team of nine people. The group emails were monitored by the employer’s security, privacy, and practices teams, so other employees also may have seen the email.

The client, proceeding anonymously, sued the clinic and one of its physicians, alleging violations of California’s Consumer Legal Remedies Act, the Confidentiality of Medical Information Act, negligence, and various other claims. Lane moved to strike the complaint, arguing that its challenged actions arose from an activity protected by a specific state statute and that the lawsuit was primarily intended to chill its right to free speech in connection with a public issue. A public issue for purposes of the statute includes written or oral statements made in connection with an issue under consideration or review as part of an official proceeding, and Lane argued that the data report to the CDC fell within that definition.

The trial court denied Lane’s motion on the grounds that Lane had not shown there was any current or anticipated official proceeding to which the email was connected in any way. The fact that Lane was engaging in an activity to comply with the law did not transform the conduct into an official proceeding. Lane appealed, but the ruling was affirmed. The case is Doe v. Lane Fertility Institute for Education and Research, Inc., Super. Ct. No. CIV 2002299 (Marin County, CA), on appeal, No. A162094 (1st App. Dist., July 29, 2021).

Copyright © 2021 Robinson & Cole LLP. All rights reserved.National Law Review, Volume XI, Number 222
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About this Author

Jean Tomasco, Robinson Cole Law Firm, Hartford, Labor and Employment, Litigation Law Attorney
Counsel

Jean Tomasco's practice involves employer counseling and employment litigation, with an emphasis on the Employee Retirement Income Security Act (ERISA) and benefits litigation. She is a member of the firm’s Health + Benefits Litigation Team and its Labor, Employment, Benefits + Immigration Group.

Employee Benefits and Compensation Litigation

Jean has more than two decades of experience handling benefit claims litigation. She represents insurers, managed care organizations, and employers in benefit...

860-275-8323
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