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Date: 07-14-2023
Case Style:
Case Number: 4:23-cv-10113
Judge: Allison D. Burroughs
Court: United States District Court for the District of Massachusetts (Hampden County)
Plaintiff's Attorney: Michelle Blaunder, Edward Haber, Patrick Vallely
Defendant's Attorney: Stephen T. Paterniti
Description: Worcester, Massachusetts civil rights lawyer represented Plaintiff who sued defendant on a job discrimination theory.
Janice Progin filed this putative class action in Massachusetts Superior Court against UMass Memorial Health Care, Inc., UMass Memorial Hospitals, Inc., UMass Memorial Medical Center, Inc., UMass Memorial HealthAlliance-Clinton Hospital, Inc., Marlborough Hospital, and Harrington Memorial Hospital, Inc. (collectively, “Defendant”)[1] on December 20, 2022. Plaintiff alleges that Defendant shared communications about her private medical information with Facebook and Google without Plaintiff's knowledge or consent, in violation of the Massachusetts Wiretap Act, Mass. Gen. Laws ch. 272, § 99.
Defendant is a healthcare service provider that developed, owns, and/or operates a website, www.ummhealth.org, which offers a wide range of healthcare services and a patient portal. . Plaintiff has previously accessed the Website. The Website collects various types of information about its users, including individuals' medical conditions and the doctors they may be seeing.
Plaintiff did not know of or consent to the sharing of their communications to a third-party.
In its Notice of Removal, Defendant asserts that it optimizes and increases traffic to its Website in compliance with the Meaningful Use Program. The Meaningful Use Program implements provisions of the American Recovery and Reinvestment Act of 2009. Medicare and Medicaid Programs; Elec. Health Rec. Incentive Program, 75 Fed.Reg. 144, 44,314 (July 28, 2010). The Program was established in 2010 by the Department of Health and Human Services (“HHS”) to promote the use of certified electronic health record technology in a meaningful way as “one piece of a broader [health IT] infrastructure needed to reform the health care system and improve health care quality, efficiency, and patient safety.”
Also in the American Recovery and Reinvestment Act of 2009, Congress established the Office of the National Coordinator (“ONC”) within HHS, and charged the ONC with various obligations, including to “update the Federal Health IT Strategic Plan (developed as of June 3, 2008) to include specific objectives, milestones, and metrics” with respect to each of the following: “(i) [t]he electronic exchange and use of health information and the enterprise integration of such information,” as well as “(vii) [s]trategies to enhance the use of health information technology in improving the quality of health care.” 42 U.S.C. § 300jj-11(c)(3)(A). The ONC provides guidance for complying with the Program, including a model website that uses third-party marketers such as Facebook and Google. Defendant submits reports to the Center for Medicare and Medicaid Services (“CMS”) on its involvement in the Program, specifically related to the patient portal and patients' use of the portal.
Defendant asserts that in maintaining the Website, it is acting under the authority of the federal government. Specifically, Defendant claims that through the Meaningful Use program the federal government “incentiviz[es], regulat[es], monitor[s], and supervis[es]” Defendant's use and promotion of its Website “in order to meet the federal government's national priority of interoperable health information technology.”
Outcome: Plaintiff's motion to remand is GRANTED.
Plaintiff's Experts:
Defendant's Experts:
Comments: