On the first of May, at http://medicalawfirm.com/2017/05/01/richards-v-mdlive-a-cautionary-tale/, your servant held forth respecting a breach of privacy claim against privately held MD Live that has now, apparently, gone the way of all flesh. Even though she sought some $5 million through a putative class action, plaintiff reportedly dismissed her suit voluntarily without recovery. A resident of Utah suing in the Southern District of Florida, she had alleged that MDLive took screenshots of patient health information, hers included, and then sent them to TestFairy, https://testfairy.com, a non-defendant Israeli company that assertedly does quality control on apps.
At its web site, https://welcome.mdlive.com/wp-content/uploads/2017/04/MDLive-Fiction_vs._Fact-Sheet_ATA-4.23.17.pdf, MDLive posted its summary of the relevant facts under the heading “Setting the record straight.” In brief, the document refutes plaintiff’s claims. It reports that Test Fairy is “has no access to patient information that arises from patient- physician consultations” and is contractually obliged to maintain confidentiality.
In a statement, MDLive CEO Scott Decker said,
“Privacy and patient confidentiality are at the heart of everything we do, and MDLive will continue to rigorously review and evolve our technology and processes to safeguard member information and build trust in the telehealth industry. We are thrilled this lawsuit was appropriately dismissed as we continue pursuing MDLive’s goal of enabling 24/7/365 access to affordable virtual healthcare for consumers, employers, health plans and health systems across the US.”
Comment:
From the get-go, MDLive described this claim as malarkey, and promised to seek dismissal early. Unfortunately, this Blog has so far uncovered no specifics about what transpired between service of process and dismissal. It seems a fair assessment, however, that everything went swimmingly for the defense, and perhaps the next plaintiff to come along might be at least a bit more circumspect before firing off allegations. One can always hope.
The reason this case is of interest, however, is not its merits or, as now appears to be far more likely, the lack thereof. The case is useful as a reminder, rather, that plaintiffs’ counsel will scour publicly available information, definitely including that to be fund in abundance on the Web, and endeavor to characterize statements of ideals as legally binding promises.
MDLive is to be congratulated on a speedy and highly favorable disposition of this suit. The lessons it teaches, however, are unchanged: even better than a dismissal would have been avoiding the claim in the first place. Short of Divine intervention, guarantees of such blissful immunity are unjustified in 21st Century America. But taking steps to craft language carefully, so that plaintiffs’ counsel might go bother someone else instead, is a sound, sensible way to reduce risk.