This case is interesting both for the underlying law and the risk management issues raised by the defendant's apparent lack of understanding about the impropriety of its conduct. The drug company wanted its drug salesmen to better understand how their clients worked and encouraged clients such as physicians to participate in what it called mentoring programs, basically just letting the drug salesmen follow the physician around and watch. There did not appear to be any guidelines on privacy or obtaining the patient's permission. Plaintiff had been treated by chemotherapy for breast cancer and went to the oncologist for a followup examination. Defendant physician entered the exam with a drug salesman. The physician told the patient the salesman's name, but no other information about him and did not indicate that she had the right exclude him from the exam. The patient was asked to disrobe and was examined with the salesman present. The patient was embarrassed, and after the exam she asked the receptionist who was with the physician. She was very upset on finding that it was a drug salesman and filed this action for invasion of privacy.
Drug company defendants filed a general demurrer to plaintiff's common law privacy claim on the ground that there were insufficient facts to constitute a cause of action against them:
"They argued that, as a matter of law, the causes of action for invasion of privacy did not meet the standard of intrusion that is highly offensive to a reasonable person. Defendants further argued that there was no intrusion on plaintiff's seclusion because she had no reasonable expectation of privacy given that she knew of Mr. Martinez's presence. Defendants argued there was no emergency and plaintiff could reasonably have objected to Mr. Martinez's presence in the room. Finally, defendants asserted the trial court should make the determination that no reasonable person would have found Mr. Martinez' presence to be highly offensive and that this was nothing more than "a situation which she found socially uncomfortable."
The trial court granted the demurrer and this was appealed in the instant case. The appeals court makes clear in its language and findings that the demurrer should not have been granted and that this was not a close case. The court analyzed the case in terms of the 4 recognized privacy torts in California, which are identified in the Restatement Second of Torts, section 652A: ". . . (a) unreasonable intrusion upon the seclusion of another, as stated in § 652B; or, (b) appropriation of the other's name or likeness, as stated in § 652C; or (c) unreasonable publicity given to other's private life, as stated in § 652D; or (d) publicity that unreasonably places the other in a false light before the public, as stated in § 652E." The court found that plaintiff had clearly stated an unreasonable intrusion case and dismissed the defendants' claims that she should only have been socially uncomfortable. The court found that the judge did have a role in deciding whether there was evidence of harm, but that intrusion in the medical setting, even without disrobing in front of a stranger, clearly met the standard. The court begins with a very useful discussion of the traditional case on this tort, De May v. Roberts, 9 N.W. 146 (Mich. 1881), which involved a similar set of facts, and then reviews the applicable precedent on privacy in medical situations and distinguishes these cases from others. This should be required reading for everyone involved with setting policies on the use of non-medical personnel in medical settings.
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