Wright v. Jeckle

121 Wash. App. 624
CourtCourt of Appeals of Washington
DecidedMay 13, 2004
DocketNo. 21398-6-III
StatusPublished
Cited by6 cases

This text of 121 Wash. App. 624 (Wright v. Jeckle) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wright v. Jeckle, 121 Wash. App. 624 (Wash. Ct. App. 2004).

Opinion

Brown, J.

This discretionary review involves the Washington version of the Uniform Health Care Information Act (the Act), chapter 70.02 RCW, which in relevant part prohibits health care providers from disclosing health care information without a patient’s consent. Here we are concerned with the Act’s application to a discovery order in a suit that alleged improprieties in Dr. Milan Jeckle’s treatment of obesity patients with a diet drug, commonly known as fen-phen. Over Dr. Jeckle’s objection, the Spokane superior court ordered him to turn over a patient list to the plaintiffs’ mailing agent for the purpose of giving a class-action notification. The issue is whether the class action notice procedure ordered by the superior court in this case effectively ensured that those who had access to the list of [627]*627names would not know the health care condition of the persons on the list. We conclude the trial court did not err in ordering notification by the contested procedure. Accordingly, we affirm.

FACTS

In November 1998, Karen Wright and Rosa Lee Johnson filed a class action against Dr. Milan Jeckle d/b/a All Valley Medical (hereafter Dr. Jeckle), on behalf of themselves and all others similarly situated. They alleged Dr. Jeckle had violated the fiduciary relationship of doctor and patient by advertising and promoting the drug popularly known as fen-phen, “creating for himself a financial inducement to place as many patients as possible on fen-phen and to prolong the period of time the patients were on the medications.” Clerk’s Papers (CP) at 6. Further, to maximize his profits, he allegedly required patients to purchase fen-phen from his office and thereby prevented them from obtaining the advice of an independent pharmacist regarding the labeling of the drug as dangerous. The suit also alleged he allowed office personnel who were not medically trained to adjust the medications of his fen-phen patients.

The plaintiffs sought certification of their action as a class action under CR 23(a)(l)-(4) and 23(b)(1)(B) and 23(b)(3). They also asked for damages for allegedly wrongful profits gained by Dr. Jeckle by his breach of his fiduciary doctor-patient relationship. Alternatively, they sought return of all monies they had paid him. In May 2002, the plaintiffs filed a revised second amended complaint in which they added allegations that Dr. Jeckle’s “advertising, marketing, and/or distribution of the diet drugs constituted an unfair or deceptive practice within the meaning of the Washington Consumer Protection Act [ch. 19.86 RCW].” CP at 126.

On April 1, 2002, the plaintiffs moved the superior court for an order certifying the lawsuit as a class action and approving their proposed plan for providing notice of the [628]*628class action to the class members. The proposed plan involved direct mailings to Dr. Jeckle’s patients, using a list of names to be provided by him. On April 19, 2002, the court entered its order granting the motion for class certification.

Dr. Jeckle objected to the plaintiffs’ proposed notice plan, contending it violated RCW 70.02.020 of the Act. Under RCW 70.02.020, “a health care provider... may not disclose health care information about a patient to any other person without the patient’s written authorization.” According to Dr. Jeckle, a list of his patients would be tantamount to disclosing health care information because it would identify patients who sought his care for treatment of obesity. On May 6, 2002, he offered an alternative notice plan, as set forth by Jeanne Finegan, an advertising expert with experience in devising plans to provide notice to class members in class action lawsuits. Ms. Finegan’s plan relied upon extensive newspaper, television, cable, radio, press release, and internet website notification.

On August 16, 2002, the superior court entered its order approving the plaintiffs’ notice plan. It found, “Dr. Jeckle possesses the names and last known addresses of the class members in his patient records and has asserted the physician-patient privilege to prevent the discovery of the identity and known addresses of those patients. The best notice practicable to the Class under the circumstances of this case requires individual notice to the Class by mailing the Class Action Notice ... to the last known address of all class members, as obtained from Dr. Jeckle’s patient records. CR 23(c)(2).” CP at 281. And, regarding Dr. Jeckle’s physician-patient privilege concerns, a “[cjourt appointed third-party notice provider will be responsible for keeping the names and addresses provided by Dr. Jeckle confidential.” CP at 281.

The notice procedure ordered by the superior court segregated those persons who had knowledge of the condition (treatment of obesity) that was the subject of the lawsuit, from those persons who had knowledge of the patients’ names. The employees of one mailing agent had the job of [629]*629inserting the printed notices of the lawsuit in envelopes that had the court’s return address on the left comer and then sealing the envelopes. The employees of a second mailing agent had the job of addressing the envelopes using the list of names the court ordered Dr. Jeckle to provide. The notice procedure is set forth in the court’s order, as follows:

4. Class counsel shall provide Court-appointed third-party notice provider, Comet Press . . . with a 3 x 5” diskette, a CD, or an email attachment containing the Court-approved Class Action Notice and the return address to be printed on the Class Action Notice envelopes within 7 days of the date of this Order.

5. Comet Press shall then, within 14 days of the date of this Order, duplicate the Class Action Notice . .. seal [it in] the envelope, print the return address of the Court on the envelope, and forward the sealed envelopes containing the Class Action Notice to another court-appointed agent, Walt’s Mailing Service.

6. Meanwhile, within 30 days of the date of this Order,. . . Dr. Jeckle, by and through his counsel, shall hand-carry a 3.5” diskette or CD containing the names and addresses only of all patients to whom he sold the diet drugs ... to Court-appointed third-party notice provider, Lori Kilduff, at Walt’s Mailing Service.

7. Within 45 days of the date of this Order, Walt’s Mailing Service shall then address, affix postage, and mail the sealed envelopes containing the Class Action Notice.

CP at 284-85.

We granted discretionary review.

ANALYSIS

A. Notification Procedure

The issue is whether the class action notice procedure ordered by the superior court violated the health care disclosure provisions of RCW 70.02.020.1

[630]*630Under RCW 70.02.020, “[e]xcept as authorized in RCW 70.02.050, a health care provider. . .

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Cite This Page — Counsel Stack

Bluebook (online)
121 Wash. App. 624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-jeckle-washctapp-2004.