On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, C-31-04.
The opinion of the court was delivered by: Coburn, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 27, 2005
Before Judges Coburn, Collester and Lisa
The Community Health Group, Inc., t/a JFK Medical Center ("JFK") sued defendants, Blume Goldfaden Berkowitz Donnelly Fried & Forte, and Carol L. Forte, Esq., individually, to enjoin their use or disclosure of confidential health information and to compel them to return the information to JFK. The suit was filed on behalf of JFK and two of its patients, N.B. and H.D. Defendants filed an answer and counterclaim, which sought reimbursement for counsel fees and costs from JFK on the ground that the complaint was frivolous. On April 2, 2004, Judge Francis delivered an oral opinion dismissing the action on the ground that JFK lacked standing and reserving on the request for counsel fees. JFK moved for reconsideration, and defendants apparently moved for counsel fees and costs, but their motion papers have not been included in the record. On April 19, 2004, Judge Francis entered an order dismissing the complaint. On May 7, 2004, the judge denied JFK's motion for reconsideration and defendants' motion for counsel fees and costs. These rulings were incorporated in an order dated May 19, 2004. Ultimately, and without reference to other presently irrelevant procedural aspects of the case, JFK filed its notice of appeal from the order dismissing its complaint, and defendants filed a notice of cross-appeal from that portion of the May 19, 2004, order denying their request for counsel fees. On July 20, 2004, N.B. and H.D. filed their own complaint against defendants for invasion of privacy.
This action arose after defendants had begun representing Dominica Berecsky with respect to a possible medical malpractice action that might include a claim against JFK. Berecsky was diagnosed as having cervical cancer in 2003. Defendants had reason to believe that four of Berecksky's PAP smears, examined in previous years by pathologists at JFK, had been misread as benign when they were positive for the presence of cancer. They also learned that other patients, who were not defendants' clients, may have similarly had their PAP smears misread at JFK.
While investigating Berecsky's case, defendants wrote letters on November 25, 2003, to N.B. and H.D., which read as follows:
I am the attorney for Dominica Berecsky. I am investigating a claim against John F. Kennedy Medical Center based on their failure to properly read samples sent to the pathology department there. It has come to my attention that you may have information about the competency of the pathology department.
If you would be so kind, would you please contact me to discuss what information you may have?
In December 2003, an obstetrician/gynecologist, who routinely sends his PAP slides to JFK for laboratory testing, complained to JFK about the disclosure of his patient's confidential health information (referred to by the parties as "CHI"). The patient was N.B., and she had complained to the physician because defendants were aware of her CHI and because defendants' letter to her had been sent to her mother's address, with the result that her mother had also had learned about the CHI. Another physician received a similar complaint from H.D.
After learning directly from N.B. and H.D. that neither of them had given permission for their CHI to be released to defendants, JFK conducted what it describes as a lengthy investigation. During the investigation it found that there were what it described as "discrepancies" in PAP smears examined for it in 2003 by an independent laboratory in South Carolina. JFK says that it had received encoded lists of PAP smear tests on October 24, December 19, and December 23, 2003, indicating "discrepancies" for, respectively, twenty-seven, thirty-nine, and forty-one patients. Apparently the discrepancies indicated misread PAP smears. Despite its investigation, which was largely internal, JFK found no evidence bearing on how defendants had obtained the information about N.B. and H.D. When defendants refused JFK's demand that they advise how the information was obtained, asserting attorney-client privilege, this suit ensued.
Plaintiff argues first that Judge Francis erred in holding that it lacked standing under common law. The common-law right at issue is the right to privacy, not of JFK but of N.B. and H.D. And the general rule, which appears to be inconsistent with JFK's claim, is that "[o]rdinarily, a litigant may not claim standing to assert the rights of a third party" unless "the litigant can show sufficient personal stake and adverseness so that the Court is not asked to render an advisory opinion." Jersey Shore Med. Ctr.-Fitkin Hosp. v. Estate of Baum, 84 N.J. 137, 144 (1980) (citation omitted).
It appears doubtful that JFK had a sufficient personal stake in the privacy rights of its patients, but JFK claims that it was entitled to bring this action to vindicate the privacy rights of N.B. and H.D. under Stubaus v. Whitman, 339 N.J. Super. 38 (App. Div. 2001). That case held that school districts did not have standing to assert rights on behalf of resident taxpayers. Id. at 63. But it did say that a "[p]laintiff may also raise the constitutional rights of a third party when the third party's rights are likely to be diluted or adversely affected unless they are raised by a plaintiff holding a confidential relationship with the third party." Id. at 51 (citing In re Estate of Henry M. Neuwirth, 155 N.J. Super. 410, 419 (Cty. Ct. 1978)). Even assuming this dictum from Stubaus, supra, is correct and might have justified the initial institution of this action, it can no longer serve as a basis for continuing the action. For N.B. and H.D. have each brought their own action for invasion ...