Doe v. Henry Ford Health Sys.

308 Mich.App. 592

865 N.W.2d 915

DOE

v.HENRY FORD HEALTH SYSTEM.

Docket Nos. 317973

317975.

Court of Appeals of Michigan.

Submitted Dec. 9, 2014, at Detroit.

Decided Dec. 18, 2014, at 9:15 a.m.

Hertz Schram PC, Bloomfield Hills, (by Elizabeth C. Thomson, Patricia A. Stamler, and Matthew J. Turchyn ) for plaintiffs.

Straub, Seaman & Allen, PC (by Joseph R. Enslen, Grandville and Nicholas V. Dondzila), and Pilchak Cohen & Tice PC, Auburn Hills, (by Daniel G. Cohen ) for Perry Johnson and Associates.

Kitch Drutchas Wagner Valitutti & Sherbrook, Detroit, (by Christina A. Ginter and John M. Sier ) for Henry Ford Health System.

Before: MURRAY, P.J., and SAAD and HOEKSTRA, JJ.

Opinion

PER CURIAM.

The present consolidated cases involve a class action concerning allegations of negligence, breach of contract, and invasion of privacy. Defendants Perry Johnson and Associates, Inc. (Perry Johnson), and Henry Ford Health Systems (Henry Ford) appeal by leave granted the order denying their respective motions for summary disposition and the majority of their challenges to class certification. Plaintiffs¹ have filed a cross-appeal in which they contest the trial court's decision to decertify a subgroup in the class, thereby reducing its number from 320 to 159. For the reasons explained in this opinion, we reverse the grant of class certification and we remand for entry of summary disposition in favor of Henry Ford and Perry Johnson.

Plaintiff and the other members of the certified class are a group of 159 patients who had doctor's visits at Henry Ford between June 3 and July 18, 2008. Perry Johnson provides transcription services involving patient records for Henry Ford, and the present case arises from an error by Perry Johnson's subcontractor, Vingspan, that led to the availability of patient records on the Internet. Specifically, Vingspan made a configuration change to their server that left certain patient records “unprotected.” As a result, “Googlebot,” Google's automated web crawler, indexed the information, thereby making it possible to find patient information through Google's search engine. The information made accessible included the patient's name, medical record number, the date of the patient's visit, the location of the visit, the physician's name, and a summary of the visit. In plaintiff's particular case, this information included diagnoses of “Cervical dysplasia secondary to HPV (Human Papillomavirus)”—a sexually transmitted disease —and alopecia, i.e., baldness.

After Henry Ford learned of the problem, all information was made inaccessible on the Internet, the affected patients were notified, and steps were taken to more adequately protect patient information. Notably, there is no indication in the lower court record that the information in question was viewed by a third party on the Internet² or that it was used inappropriately. Henry Ford established a “hotline” following the incident and received no report, through the hotline or otherwise, that patient information had been viewed online or used for identity-theft purposes. Plaintiff likewise conceded at her deposition that she had no indication that anyone saw, or used, any of her information that had been made visible on the Internet.

Following Henry Ford's notification to the patients, plaintiff filed the current lawsuit and sought class certification. Her suit includes three claims: (1) negligence, (2) invasion of privacy in the form of public disclosure of private facts, and (3) breach of contract under the theory that she was a third-party beneficiary of Henry Ford's agreement with Perry Johnson. Plaintiff's complaint sought “all damages” suffered by her and those similarly situated. When asked during discovery particularly what harm she had suffered and damages she intended to pursue, plaintiff advanced a theory of “presumed damages” and generally indicated that she and the others were “entitled to compensation as a result of the Defendant's invasion of their common interest in privacy.” However, the only actual losses she identified were those incurred for the procurement of monitoring to guard against identity theft. In total, plaintiff's attorney paid $275 to a company called “LifeLock” for identity-theft protection on plaintiff's behalf. Plaintiff and her counsel both expressly acknowledged during the discovery process that they were not seeking damages for emotional distress, wage loss, or personal injury.

Over objections from Perry Johnson and Henry Ford, the trial court granted class certification. Initially the class consisted of 320 individuals, but the trial court later reduced that number to the 159 members mentioned earlier.³ Both Perry Johnson and Henry Ford moved for summary disposition, and the trial court denied those motions. Henry Ford and Perry Johnson now both appeal by leave granted the denial of their respective motions for summary disposition. Also, plaintiff filed a cross-appeal, contesting the trial court's reduction of the class from 320 individuals to 159.

Appellate review of a motion for summary disposition is de novo. Spiek v. Dep't of Transp., 456 Mich. 331, 337, 572 N.W.2d 201 (1998). A motion for summary disposition under MCR 2.116(C)(10) tests the factual support of the plaintiff's claim and should be granted, as a matter of law, if no genuine issue of any material fact exists to warrant a trial. Id. This Court considers the pleadings, affidavits, depositions, admissions and other evidence submitted by the parties in a light most favorable to the nonmoving party. Maiden v. Rozwood, 461 Mich. 109, 120, 597 N.W.2d 817 (1999) ; MCR 2.116(G)(5). A material question of fact exists when, after viewing the evidence in a light most favorable to the nonmoving party, reasonable minds could differ on the issue. Allison v. AEW Capital Mgt., LLP, 481 Mich. 419, 425, 751 N.W.2d 8 (2008).

When reviewing a trial court's certification of a class, we review the trial court's findings of fact for clear error and its discretionary decisions for an abuse of discretion. Duncan v. Michigan, 300 Mich.App. 176, 185, 832 N.W.2d 761 (2013). The interpretation and application of a court rule involves questions of law that this Court reviews de novo. Id.

On appeal, we first consider whether a material question of fact remains in regard to plaintiff's claim for invasion of privacy in the form of public disclosure of private facts. Among other arguments regarding this claim, we are asked to address whether it must be dismissed because invasion of privacy is an intentional tort and it is undisputed that the information in question became accessible on the Internet through negligence. Plaintiff, in contrast, maintains that invasion of privacy may be established without regard for whether the disclosure of information was intentional.

In basic terms, to prove invasion of privacy through the public disclosure of private facts, a plaintiff must show “(1) the disclosure of information (2) that is highly offensive to a reasonable person and (3) that is of no legitimate concern to the public.” Doe v. Mills, 212 Mich.App. 73, 80, 536 N.W.2d 824 (1995). The information revealed must relate to the individual's private as opposed to public life. Lansing Ass'n of Sch. Adm'rs v. Lansing Sch. Dist. Bd. of Ed., 216 Mich.App. 79, 89, 549 N.W.2d 15 (1996). “Liability will not be imposed for giving publicity to matters that are already of public record or otherwise open to the public.” Doe, 212 Mich.App. at 82, 536 N.W.2d 824. Further, the “publicity” must consist of communicating that information “to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” Restatement, Torts 2d, § 652D, comment a, p 384. See also Lansing Ass'n of Sch. Adm'rs, 216 Mich.App. at 89, 549 N.W.2d 15.

We are not aware of a Michigan case that overtly considered whether the disclosure of private information to the public must have been done intentionally, but our review of Michigan caselaw leads us to conclude that it is in fact an intentional tort. Specifically, we find it notable that the public disclosure of private facts has been discussed by the Michigan Supreme Court as an intentional tort. See, e.g., Smith v. Calvary Christian Church, 462 Mich. 679, 680, 688–689, 614 N.W.2d 590 (2000). Further, we are not aware of—nor has plaintiff presented us with—any Michigan case in which an action alleging invasion of privacy proceeded on the basis of negligent disclosure. The conduct involved has instead been the intentional disclosure of private facts. See, e.g., id. (considering a pastor's announcement of a parishioner's sins during church services); Doe, 212 Mich.App. at 77, 536 N.W.2d 824 (involving protestors' display of signs informing public about specific women's intentions to undergo abortions); Winstead v. Sweeney, 205 Mich.App. 664, 673, 517 N.W.2d 874 (1994) (discussing publication of a newspaper article detailing facts about the plaintiff's sex life). Given that no Michigan authority discusses a cause of action for invasion of privacy premised on negligent conduct, the logical conclusion is that such a cause of action does not exist in Michigan. Cf. Price v. High Pointe Oil Co., Inc., 493 Mich. 238, 250, 828 N.W.2d 660 (2013) (concluding that noneconomic damages for negligent destruction of property not available in Michigan when such damages had never before been contemplated in Michigan's caselaw). Consequently, we conclude that to establish an invasion of privacy through the disclosure of private facts, a plaintiff must show that the disclosure of those facts was intentional.⁴ Because the undisputed facts in this case indicate nothing more than a negligent disclosure of private information, no material question of fact remains and summary disposition should have been granted regarding plaintiff's invasion-of-privacy claim.

Regarding plaintiff's claims for negligence and breach of contract, on appeal, the parties...