Metropolitan News-Enterprise


Thursday, April 14, 2011


Page 1


C.A. Rejects Disclosure Order in Suit Over Syphillis Treatment


By a MetNews Staff Writer


An order requiring the Los Angeles Gay and Lesbian Center to disclose the names of persons it treated for syphilis to the counsel for plaintiffs in a class action over the treatment was overturned yesterday by this district’s Court of Appeal.

Div. One, in an opinion by Justice Jeffrey Johnson, said the class members, who were allegedly treated with a drug that is not recommended for such treatment, have privacy rights and privileges that must be taken into consideration. The court did, however, approve the trial court’s order that all members of the certified class be included in the action unless they affirmatively opt out.

Four named plaintiffs sued in 2005, alleging that between 1999 and 2004, the center treated approximately 663 patients with Bicillian C-R, a mixture of short and long-acting penicillin, rather than with Bicillin L-A, which is composed of wholly long-acting penicillin and is the proper form of the drug for syphilis treatment.

The center learned in March 2004 that it had used the wrong drug and began a publicity campaign to advise the public of the error and offer retesting and retreatment to those affected. About two-thirds of the patients availed themselves of the offer.

The plaintiffs’ motion for class certification of their action for negligence and breach of warranty was denied by the trial court, but the Court of Appeal reversed last year.

On remand, Los Angeles Superior Court Judge Robert Hess established an opt-out procedure for class members who did not want to participate in the litigation, rejecting a defense objection that the procedure would invade the constitutional right of privacy and the doctor-patient privilege. The judge ordered the center to provide the plaintiffs a master list of class members with addresses, phone numbers, and e-mail addresses, but ordered that class members be referred to by an assigned number, rather than by name, in any public filing.

The Court of Appeal yesterday granted a writ of mandate requiring that further measures be undertaken to protect patient confidentiality, but denied relief with respect to the opt-out procedure.

The justice explained:

“We recognize the benefits of a class action do not as readily accrue where members must affirmatively join the class. Here, the putative class members are those seeking free medical advice, and only approximately two-thirds of them responded to the Center’s explanation of the error in medication and sought free retreatment. It is less likely that such members would affirmatively seek to join a class. Without the mandatory joinder effect of an opt-out class action, the Center will not obtain res judicata effect of a judgment; small individual class plaintiffs will not obtain the benefit of a settlement; and the cost of administering many small actions will not be avoided.”

He continued:

“ Nonetheless, the Center points out that it has been more than six years since the error in medication, and if small class plaintiffs had wanted to come forward and file individual suits, they would have. This fact only underscores the point that the class plaintiffs in this action are likely of limited means and have limited access with which to pursue their claims judicially. A class action in which they automatically become participants benefits them.”

With respect to privacy and privileged communications, however, Johnson said the names of class members should not be disclosed to the plaintiffs, and that doctor-patient communications could not be disclosed absent a waiver. The proper procedure, he said, is that the patient information should be disclosed only to a court-appointed administrator for the purpose of sending notice.

The case is Los Angeles Gay and Lesbian v. Superior Court (Bomersheim), B228853.


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