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Tuesday, September 9, 2008

Minnesota Appellate Court Holds Consent Bars Patient Invasion of Privacy Claim Over Broadcast

The Minnesota Court of Appeals has reversed and remanded a case in which a patient sued the Mayo Clinic for invasion of privacy after "a videotaped interview of her discussing a private medical condition, produced and disseminated by Mayo, aired on Forum‟s news broadcast in the city where she lives," citing consent as "an absolute defense."

Anderson initiated this action against Mayo and Forum after a videotaped interview of her discussing a private medical condition, produced and disseminated by Mayo, aired on Forum's news broadcast in the city where she lives. Mayo asserts that it was privileged to publicize Anderson's medical condition by virtue of her written consent. Anderson asserts, and the district court concluded, that genuine issues of material fact exist with respect to whether consent was fraudulently induced.

Anderson initially asserts that the district court's order is not appealable. We disagree. While the denial of a motion to dismiss generally is not subject to immediate review, the district court's decision here is appealable under the collateral-order doctrine....An order denying a motion for judgment on the pleadings is subject to de novo review....Dismissal is appropriately granted when it is not possible "on any evidence which might be produced, consistent with the pleader's theory, to grant the relief demanded."...Consent is an absolute defense to an invasion-of-privacy claim....Consent need not be in writing, but courts have construed written consents according to the rules of contract construction, including the parol evidence rule, which forbids the consideration of extrinsic evidence to vary the unambiguous terms of a written instrument....Here, Anderson's consent was without limitation. The one-page written authorization that she signed stated that Mayo could disclose Anderson's name and contact information as well as details regarding her condition and surgical treatments "to media representatives selected by Mayo Clinic in Rochester ('Media Representatives'), or through interviews, photographs, audiotapes, and/or films (including digital media) ('Materials') for public dissemination by Mayo or media." The expressed purpose of the authorization was to "allow Media Representatives to record Materials, and for Mayo to disseminate health information to the general public." Consistent with that purpose, the authorization permitted Mayo and the media to "use the Materials in any manner they wish, including dissemination to the general public via any media." Thus, under the plain and unambiguous language of this written consent, publication of the video footage was privileged unless Anderson's consent was induced by fraudulent misrepresentation.

Anderson asserts that her consent was fraudulently induced by the doctor who performed her surgeries and initially asked her to participate in a video. In her complaint, Anderson alleges that the doctor represented that the video was "intended to educate patients about the condition and treatment options available to them." It does not follow from this alleged representation that the video footage would be used solely for in-office patient education, as Anderson apparently envisioned. Nor is a broadcast news segment inconsistent with the allegedly expressed educational goal. Rather, it seems likely that Mayo uses a variety of methods to reach and educate both current and prospective patients.

Even assuming that Anderson's doctor told her that her videotaped interview would be used only for a patient-education video, her fraudulent-inducement claim nevertheless fails for two reasons. First, she has not alleged a misrepresentation of fact. Second, the unambiguous and contrary language of the written authorization precludes reasonable reliance as a matter of law...."It is a well-settled rule that a representation or expectation as to future acts is not a sufficient basis to support an action for fraud  merely because the represented act or event did not take place."  Rather, a party claiming fraud must assert the misrepresentation of past or present fact....Here, the alleged representation by Anderson's doctor amounts to no more than statements of future intent, that it was Mayo's intent to use the video footage of Anderson for a patient-education video. Without more, this statement of future intent cannot support  a finding of fraudulent inducement.

We further agree with Mayo that Anderson could not reasonably have relied on her doctor's alleged promises in light of the subsequent, unambiguous language in the authorization that she signed....Here, the alleged representation by Anderson's doctor that use of the video footage would be limited to the creation of a patient education video is directly contradicted by the written authorization that Anderson signed. Indeed, the expressed purpose of the authorization was to "allow Media Representatives to record Materials, and for Mayo to disseminate health information to the general public," which purpose was to be accomplished "via any media." (Emphasis added.) We reject Anderson's assertion that this broadly worded language does not contradict her doctor's alleged earlier promises because the authorization does not outline the specific ways in which the video footage would be disseminated. The authorization allowing unrestricted use clearly contradicts the alleged promise of limited use. This is not a case in which the contract is "couched in ambiguous legal language which a layman could reasonably believe supported the representation."...While Anderson may not be a sophisticated contracting party, the authorization in this case is a one-page document drafted in clear language. Under these circumstances, Anderson could not have reasonably relied on her doctor's alleged earlier representations.

Anderson's assertion that she shared a fiduciary relationship with her doctor does not alter our conclusion. Initially, we find no authority to support imposing a fiduciary relationship on physicians, particularly with respect to matters outside the context of diagnosis and treatment.

...

Neither does Anderson's and the district court's characterization of the right to revoke the consent  as "illusory" impact our analysis. The right to revoke a gratuitous consent arises by operation of law, not contract....There is no allegation that Anderson revoked her consent before the newscasts. Rather, Anderson alleges that, because she was not provided with a copy of the video prior to it airing, her right to revoke was "illusory." But there is no basis for Anderson's implicit assertion that the right to revoke necessarily implies a right to preview.

Because Anderson failed to allege facts sufficient to support a finding of fraudulent inducement, her claims are barred by consent and should be dismissed. Mayo and Forum agree that, absent a basis for tort liability, Forum's indemnity claim fails as well. Accordingly, we reverse the district court's order in these respects and remand for entry of judgment in Mayo's favor on Anderson's claims and Forum's cross-claim.

Read the entire opinion here.

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