Doe v. Henry Ford Health System
308 Mich. App. 592
Mich. Ct. App.2014Background
- Henry Ford contracted Perry Johnson for medical-transcription services; a Perry Johnson subcontractor (Vingspan) misconfigured a server in 2008, causing patients’ visit details (names, MRNs, visit dates, physician, visit summaries, diagnoses) to be indexed by Google.
- Henry Ford removed the data, notified affected patients, and established a hotline; there is no evidence in the record that any third party viewed or misused the exposed records or that plaintiffs suffered identity theft or credit harm.
- The named plaintiff (Jane Doe) filed suit asserting negligence, invasion of privacy (public disclosure of private facts), and third-party-beneficiary breach of contract; she sought class certification for affected patients and claimed “presumed damages,” but the only economic outlay shown was $275 paid to purchase identity-theft monitoring for her.
- The trial court certified a class (initially 320, later reduced to 159 members) and denied defendants’ summary-disposition motions; Henry Ford and Perry Johnson appealed and plaintiffs cross-appealed the decertification of part of the class.
- The Court of Appeals reviewed whether (1) public-disclosure privacy requires intentional conduct, (2) credit-monitoring costs are recoverable absent present injury, and (3) class certification was proper given the representative’s lack of viable individual claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether public-disclosure invasion of privacy requires intentional disclosure | Doe: privacy claim may proceed even if disclosure was negligent | Henry Ford/Perry Johnson: invasion of privacy (public disclosure) is an intentional tort and not available for negligent disclosure | The court held disclosure must be intentional; negligent disclosure cannot support the claim |
| Whether costs of identity-theft monitoring are recoverable as damages absent present injury | Doe: monitoring costs are compensable as damages for invasion of privacy/negligence/contract (including via presumed damages) | Defs: such costs are speculative and incurred in anticipation of future harm; Michigan law requires a present, actual injury for negligence and contract damages | The court held such monitoring costs are not cognizable damages without present injury; presumed damages not available |
| Whether plaintiff sufficiently proved negligence and breach damages to survive summary disposition | Doe: alleged invasion and anticipated injury justify damages and continuation of claims | Defs: plaintiff concedes no present injury and disavows emotional or other losses; no material factual dispute supports recoverable damages | The court held plaintiff failed to identify cognizable damages for negligence or breach; summary disposition should have been granted |
| Whether class certification was proper when the named representative lacks individual viable claims | Doe: (cross-appeal) argued class size reduction was improper | Defs: a class representative must be a member able to maintain the cause individually | The court held a plaintiff who cannot maintain individual claims cannot represent the class; certification was reversed and remanded for summary disposition for defendants |
Key Cases Cited
- Doe v. Mills, 212 Mich. App. 73 (discussing elements of public-disclosure invasion of privacy)
- Smith v. Calvary Christian Church, 462 Mich. 679 (treating public disclosure of private facts as an intentional tort)
- Henry v. Dow Chem. Co., 473 Mich. 63 (requiring a present, actual injury for negligence claims and rejecting recovery for medical monitoring absent present injury)
- Spiek v. Michigan Dep’t of Transp., 456 Mich. 331 (standard of review for summary disposition)
- Maiden v. Rozwood, 461 Mich. 109 (evidence view required for MCR 2.116(C)(10) motions)