A class action lawsuit against Phoenix Children’s Hospital for unlawfully disclosing information regarding employees’ vaccine exemption status can proceed according to a Maricopa County Superior Court judge.
Judge Timothy Johnson ruled on a request for a dismissal by the Hospital’s attorney on Monday. The hospital’s attorneys from Snell and Wilmer moved to dismiss the Complaint for failure to state a claim upon which relief may be granted.
“We are pleased to have been able to defeat PCH’s Motion to Dismiss, in its entirety, on behalf of our clients. In ruling against PCH, the Court recognized and reaffirmed the common law privacy protections afforded to healthcare workers,” said attorney for the plaintiffs Alexander Kolodin, of the Davillier Law Group. “We also applaud efforts by Senator Barto and others to promote and expand these rights via legislation and encourage everyone who cares about these issues to speak in favor of her legislation on Wednesday at 8:30, when her first set of bills on this topic are heard at the Capitol.”
The case involves an alleged breach of privacy caused when a hospital administrator sent an email to employees who were approved for either a medical or religious exemption from the company’s COVID-19 vaccination mandate.
According to the lawsuit, on October 15, 2021 Phoenix Children’s Hospital (PCH) employee Holly Tomassini sent an email to 368 people on behalf of PCH’s VP of Employee & Physician Relations, Steve Schuster, disclosing which PCH employees had received a medical or religious exemption to the Vaccine Mandate.”
That information was then allegedly shared on social media.
The Court found in part:
It may indeed be very difficult for plaintiff to prove that it was substantially certain that the information in the email would become public knowledge. It would be improper, however, for the Court to make the conclusion that such a showing cannot be made at the pleading stage. Plaintiff has stated a claim, which, if proven, is a claim upon which relief could be granted.
PCH also claims that the material in the email about vaccination status is not highly offensive to a reasonable person, as a matter of law. Restatement (Second) of Torts § 652D (1977). This is, again, not an issue that can be resolved on a Motion to Dismiss. Plaintiffs have alleged that the disclosure of the information is offensive. PCH’s arguments that the email may not have been distributed to vaccinated people, and that there is no evidence that plaintiffs were subjected to scorn, are factual issues that cannot be resolved at this stage.
Next, PCH argues that vaccination status is a matter of public concern that the public has the right to know. Restatement (Second) of Torts §652D (1977). PCH argues that it had a legitimate interest in knowing the vaccination status of its employees. That may be the case. This, however, misses the point.
The question is not whether PCH had a legitimate interest in the vaccination status of its employees. Rather, the question is whether all the recipients of the email, and the public at large, had the right to know the vaccination status of several other employees. This is a question that cannot be decided at the pleading stage. Assuming the email ended up being publicly disseminated, there is a legitimate issue about whether the public had the right to know the vaccination status of the PCH workers, because it was a matter of public concern. As such, the Complaint is not subject to dismissal on the grounds that vaccination status is a matter of public concern.
At issue is whether the breach was an invasion of privacy and whether PCH knew or should have known the information was private, and whether such disclosure would be highly offensive to a reasonable person.