Potential class action lawsuit filed over missing Kaiser flash drive

Where there’s a breach, there’s often a lawsuit. Barbara Wallace of Courthouse News reports:

A flash drive holding the confidential medical records of almost 49,000 Kaiser patients was stolen, exposing their names and other information, a class claims in a lawsuit filed in Los Angeles County Central District Court.

Ginger Buck brought a class action against Kaiser Permanente International under California’s Confidentiality of Medical Information Act. Under the act, medical facilities must keep patient information confidential unless the patient gives written authorization.

Read more on Courthouse News. This part of CN’s coverage caught my eye:

  The complaint states, “On or around Dec. 2013, the private medical information of all patients – including plaintiff and the class – who had treated at Kaiser Permanente had been stolen,” specifically, a computer flash drive containing the medical information of almost 49,000 patients was gone.

According to my notes and previous blog entries, however, Kaiser learned of the breach on September 25, which means it happened on or before that date. So I looked at the complaint (pdf) to see if it alleged that the breach occurred in December, in case I somehow confused two different incidents. The complaint is written so poorly/ungrammatically that I can understand confusion as to when the breach occurred:


Wow. If what they meant to say was that patients learned, in December, from a public web site  that a flash drive had been stolen, you’d never know it from the above. The complaint even makes it sound like the flash drive was disclosed on the unspecified public web site.  Nowhere does it seem to mention that Kaiser learned of the breach on September 25 and it was disclosed publicly on November 25 on the California Attorney General’s security breach web site.

Then, too, the complaint alleges the flash drive was stolen, but nowhere in Kaiser’s notification does it say that the flash drive was stolen. Kaiser’s statement was that it was reported missing, which means it could have been misplaced or lost and not stolen.

Can Kaiser move to dismiss on the basis of grammar? I doubt it, but I pity anyone trying to make sense of the “factual background” at this point. I’m not even sure that the defendant being listed, “Kaiser Permanente International” is the appropriate defendant for a claim involving Kaiser’s Anaheim Center.

More importantly, the suit seeks statutory damages under the California Medical Information Act (CMIA).  As noted previously on this blog, an October ruling by the California Court of Appeals has taken a sledge hammer to that approach.  See Paul Paray’s discussion of the impact of  Regents of the Univ. of Cal. v. Superior Court of Los Angeles County, No. B249148 (Cal. Ct. App. October 15, 2013) on such lawsuits over on InformationLawGroup. Plaintiffs in the current lawsuit are likely to have an uphill battle ahead.


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