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Community Hospital Group, Inc. v. Blume Goldfaden Berkowitz Donnelly Fried & Forte

March 30, 2006

THE COMMUNITY HOSPITAL GROUP, INC., T/A JFK MEDICAL CENTER, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
BLUME GOLDFADEN BERKOWITZ DONNELLY FRIED & FORTE, P.C., AND CAROL L. FORTE, ESQ., DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.



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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 28, 2006

Before Judges Coburn, Collester and Lisa.

Plaintiff, a hospital, sued defendants, a law firm and one of its principals, to enjoin the use or disclosure of confidential health information of its patients and to compel return of the information. The trial court dismissed plaintiff's action on the ground that it did not have standing to pursue its claim for injunctive relief on behalf of its patients. On November 2, 2005, we filed an opinion affirming the judgment and resolving all of the issues presented to us by the parties. Cmty. Hosp. Group, Inc. t/a JFK Med. Ctr. v. Blume Goldfaden Berkowitz Donnelly Fried & Forte, P.C., 381 N.J. Super. 119 (App. Div. 2005). Plaintiff filed a petition for certification with the Supreme Court seeking reversal of our judgment, based in part on a theory that it had not presented to us; namely that it has standing in its own right to protect its business records. On February 10, 2006, the Court filed an order temporarily remanding the case to us for resolution of that issue. In pertinent part, the order reads as follows:

It is ORDERED that the petition for certification is summarily remanded to the Appellate Division, solely in respect of the question whether plaintiff has standing to bring this action on the ground it is protecting its own business records when a third party has obtained them in a manner other than through an authorization and release; and it is further

ORDERED that the Appellate Division shall expedite the briefing, argument, and disposition of the appeal on remand; and it is further

ORDERED that on the filing of its opinion disposition, the Appellate Division shall forward a copy to the Clerk of the Court, who shall thereafter instruct counsel on any supplemental briefing.

Jurisdiction is otherwise retained.

As we noted in our previous opinion, plaintiff filed this action after it learned that defendants were in possession of a hospital record concerning two of its patients that had not been released based on the patients' authorization, and after defendants refused to advise plaintiff how they had obtained the record. At that point, plaintiff was entitled to infer that the record might have been obtained by improper means, possibly enabled by its own failure to adequately protect its records.

The Hospital Patients Bill of Rights Act, N.J.S.A. 26:2H-12.7 to 12.11, entitles patients to the "privacy and confidentiality of all records pertaining to [their] treatment," with certain exceptions that are not presently relevant.

N.J.S.A. 26:2H-12.8g. That statute also provides for the imposition of administrative penalties if a hospital violates a patient's rights. Those penalties include fines and suspension or revocation of all licenses. N.J.S.A. 26:2H-13. As we noted in Kinsella v. NYT Television, 382 N.J. Super. 102, 107 (App. Div. 2005), "our courts held even before enactment of this legislation that a patient has a privacy interest in withholding disclosure of information concerning his or her hospital admittance." Obviously a hospital's breach of that duty could justify a civil action against the hospital for damages by the patient, Hague v. Williams, 37 N.J. 328 (1962); Estate of Behringer v. Med. Ctr. of Princeton, 249 N.J. Super. 597, 632-34 (Law Div. 1991); and just as obviously, a hospital that failed to protect patient records could expect injury to its reputation, affecting in turn its economic viability.

In Ferraiuolo v. Manno, 1 N.J. 105, 108 (1948), the Court endorsed the well-settled proposition that "'[a]cts destroying a complainant's business, custom and profits do an irreparable injury and authorize the issue of a preliminary injunction.'" (citations omitted). Of course the acts must be wrongful. Longo v. Reilly, 35 N.J. Super. 405, 410-11 (App. Div. 1955), certif. denied, 25 N.J. 45 (1957). In other contexts, such as the disclosure of trade secrets, the power to grant corporate entities injunctive relief to protect their business, custom and profits is firmly established and not ...


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