Warning: If you go privacy rogue – your employer’s insurance company likely doesn’t have to protect you

If you ever needed a reason to behave, this is as good a one as any.

In a new Ontario court decision, a nurse was denied coverage from her former hospital employer’s insurance provider for her legal fees and possible costs associated with her alleged snooping in health records. So now, she walks into court alone.

Last year I wrote a blog post about a class action against a nurse and hospital for breach of privacy (intrusion upon seclusion). The nurse had stolen more than 20,000 Percocet pills (opioids) over a nine-year period of working at the hospital. To do so, she had to look at the medical records of more than 11,000 patients to obtain active patient names she could enter into the medication system to open the medication drawers. Remember that one?

Well, the saga continues.

The court has released a new decision (Demme v. Healthcare Insurance Reciprocal of Canada, 2021 ONSC 2095 (CanLII)) finding that the nurse is not entitled to coverage from the insurer for her legal expenses and representation in the case. The court also concluded that the intentional tort of intrusion upon seclusion is not covered under the occurrence-based insurance policy issued by the insurer.

The nurse brought a motion for a declaration that HIROC (her former employer’s insurance company) owed a duty to defend her in the eight civil actions in which she is named as Defendant. The hospital where she had worked held an insurance policy with HIROC. The policy provided coverage to the hospital and its employees in the course of their employment. The nurse took the position that she was an insured under the policy. She wanted to be reimbursed for the costs she had incurred in the litigation and she wanted HIROC to pay her future defence costs until the actions concluded.

The court concluded the former nurse did not fall within the insuring agreement and was not entitled to coverage and HIROC did not have a duty to defend the nurse.

The court found:

• the true nature of all eight claims was the intentional tort of intrusion upon seclusion;
• HIROC’s duty to defend would be triggered if there is a “mere possibility” that intrusion upon seclusion could fall within coverage;
• the HIROC insurance policy is an occurrence-based policy – therefore, the claims could fall within coverage if the injuries or damages arose out of an accident and were neither expected nor intended from the standpoint of the insured (in this case, the nurse);
• the onus was on the nurse to prove that the injuries alleged were caused by an occurrence and that she did not expect or intend the injuries to the plaintiffs; and
• the claims of intrusion upon seclusion did not result in injuries that were unexpected or unintended from the perspective of the nurse; therefore, these were not injuries caused by an occurrence.

The court also found that the claims against the nurse were excluded by the intentional act and/or criminal act exclusions in the policy.

The court was satisfied that the hospital could still be covered under the policy but not for intrusion upon seclusion. A wide range of other types of claims for negligent privacy breaches would still fall within the insuring agreement of the policy – including for example, a negligent release of private information, improper faxing of private information, incorrectly sent e-mails, erroneous attachments to correspondence or e-mail, loss of medical records, records improperly disposed of and negligent storage of records.

Of note, the hospital was not a party to the nurse’s motion. So this decision doesn’t say anything about whether the policy would cover the hospital’s vicarious liability for the nurse’s actions, or its potential liability for the privacy breach by virtue of its own supervisory and safety failings in respect of its personnel and drug protocols (failings that were mentioned in the certification decision).

Bottom Line: This decision acts as a warning to employees who go privacy rogue. Not only could you lose your job and your license to practice from your regulatory College – if you engage in intentional or reckless actions with patient information, you may be paying your own way to defend yourself in costly legal proceedings. As we lawyers like to say “govern yourself accordingly”.