Lawsuit names former worker

Gary Kean
Published on August 29, 2012
Scott Burden, a lawyer with Brothers and Burden Law Office in Corner Brook, is representing clients affected by the breach in privacy at Western Health.
Geraldine Brophy

First class-action suit filed in St. John’s

CORNER BROOK — A second class-action lawsuit has been filed in relation to privacy breaches at Western Health, but this time the former employee accused of the violations has also been named as a defendant.

The class-action lawsuit naming both Western Health and Donna Colbourne, the clerk who was terminated from her position because she accessed the personal information of 1,043 patients, was filed by lawyer Scott Burden in the Supreme Court of Newfoundland and Labrador in Corner Brook last Friday.

This is the second class-action lawsuit filed against Western Health. Bob Buckingham, a lawyer based in St. John's, filed a class-action lawsuit earlier this month on behalf of others who have had their information accessed and named Barbara Hynes of Corner Brook as the representative plaintiff.

The legal action filed by Buckingham, however, did not name Colbourne as a defendant.

"In the event that the hospital were to deny liability based on the employee acting outside the scope of her duties, we had to name her," Burden said Tuesday of the reason why Colbourne was also named as a defendant in the lawsuit he filed.

Colbourne could not be reached for comment Tuesday.

The latest lawsuit named two representative plaintiffs, Valerie Dyke and Catherine Allen-Vater, who both received letters from Western Health informing them their privacy had been breached.

Burden said his firm has a list of about 200 people who have received letters and are part of the class action.

The statement of claim filed by Burden gives a glimpse into the effect the privacy breaches have had on the representative plaintiffs.

Allen-Vater called the number provided on the registered letter she received from Western Health, but was told the breaches were too numerous to be discussed over the phone. She was later sent another letter from Western Health that included a printout of 18 dates on which her file had been accessed inappropriately.

The letter indicated there had been multiple breaches on some of the dates noted.

The court document stated that Allen-Vater "has been traumatized by the experience" and that she "was fearful as to the possible uses her information may have been used and the possible consequences of the many breaches of her privacy."

The statement of claim described Dyke as being "in a state of shock" and "infuriated" when she was first notified of the breach of her personal records. She also felt that Colbourne "targeted her specifically" and said she "is very nervous and upset over what the purpose of the access may have been."

The court document described the actions of Colbourne as "malicious as she knowingly accessed" information she was not authorized to access. It alleged that Colbourne's actions constitute a tort of violation of privacy as stated in the Privacy Act and Section 35(2) of the Hospitals Act.

The statement of claim accused Western Health of being "negligent" and said its conduct "fell below the reasonable standard of care that is expected of an organization trusted with the private information of patients." It asserts that Western Health "was wilfully blind" and should be held "vicariously liable" for Colbourne's actions.

"(Western Health), by not having proper monitoring procedures in place, displayed a systematic failure which resulted in an inexcusable privacy breach of a large number of people," read the statement of claim.

The plaintiffs also want to know the answers to questions not provided by Western Health in its registered letter to the 1,043 affected patients.

"In the letter, (Western Health) provided no explanation as to how the breach was able to occur, how (Colbourne) was able to access so many patient records inappropriately over an extended period of time and why the audit only consisted of an 11-month period," stated the claim.

The damages being sought through the lawsuit will be assessed through the court action and there are no dollar amounts specified in the documents.

No defence by either Western Health or Colbourne has yet been filed in response to the statement of claim.

Late Tuesday afternoon, Western Health's communications manager Tara Pye, said in an email that "at this point, Western Health has not yet received the second statement of claim. We will speak to the matter after we have received and had the opportunity to review it.

"We take our responsibility as the custodians of an individual's personal health information very seriously and we do have measures in place to protect personal health information. We will be happy to follow up with people on an individual basis about any specific concerns they may have."