Rb. Rotterdam - C/10/587469 / HA RK 19-1473

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Rb. Rotterdam - C/10/587469 / HA RK 19-1473
CourtsNL.png
Court: Rb. Rotterdam (Netherlands)
Jurisdiction: Netherlands
Relevant Law: Article 9(1) GDPR

Article 9(2)(f) GDPR

Article 9(2)(g) GDPR

Decided: 10. 4. 2020
Published: 15. 4. 2020
Parties: Anonymous vs. STICHTING ALBERT SCHWEITZER Hospital
National Case Number: C/10/587469 / HA RK 19-1473
European Case Law Identifier: ECLI:NL:RBROT:2020:3430
Appeal from: n/a
Language: Dutch
Original Source: NL)

The Rotterdam Court (Rb. Rotterdam) decided that the communication of medical data to the insurance company of a hospital in the context of negotiations involving the civil liability of the hospital was not allowed under Article 9 (2) (f), (g) GDPR.

English Summary[edit | edit source]

Facts[edit | edit source]

In the context of a claim for damages after a surgery at the hospital, the patient refused to sign a document drafted by the insurer of the hospital according to which (s)he would agree to the communication of his/her personal data. The insurance company argued that such communication was necessary for the analysis of the liability of the hospital before any litigation.

Dispute[edit | edit source]

The Court had to assess whether there was a legal ground under the GDPR to make the communication of the medical data to the insurance company of the hospital compliant with Article 9 GDPR.

Holding[edit | edit source]

The court considered that the exception under article 9.2 (f) GDPR could not justify the communication of medical data to the insurer. Indeed, the insurance company did not need the data for ‘the establishment, exercise or defense of a legal claim’ since both parties were only at the negotiation stage. The fact that the hospital chose its insurer as a third party to assess the liability of the hospital cannot also be a ground for such communication. Nor can article 6 ECHR apply to this situation since this article refers to the judicial procedure and does not provide any guarantees for the extrajudicial process.

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English Machine Translation of the Decision[edit | edit source]

The decision below is a machine translation of the original. Please refer to the Dutch original for more details.

Court of Rotterdam
Date of pronunciation
10-04-2020
Date of publication
15-04-2020
Case number
C/10/587469 / HA RK 19-1473
Jurisdictions
Civil Justice
Special features
First instance - single
Content indication
Partial dispute. The applicant's choice to have the defendant's liability assessed by a third party (in this case its professional liability insurer) does not mean that the defendant's prohibition on processing medical data (pursuant to Article 9(1) of the AVG) no longer applies. The fact that, in practice, this could make the assessment by the professional liability insurer difficult is of insufficient weight to infringe a fundamental right and, moreover, cannot be relied on against the defendant. The applicant's reliance on exception clauses in the AVG and Article 6 of the ECHR is unsuccessful. The applicant is obliged to consider the defendant's finding of liability in the sense that it takes a position as far as possible on the defendant's allegations.

Sites
Rechtspraak.nl
PS-Updates.nl 2020-0294
Enriched pronunciation
Ruling
disposal

ROTTERDAM COURT
Trade and port team

Case number / petition number: C/10/587469 / HA RK 19-1473

Decision of 10 April 2020

in the matter of

the foundation

ALBERT SCHWEITZER HOSPITAL FOUNDATION,

established in Dordrecht,

applicant,

attorney M.J.J. de Ridder in Utrecht,

by

[defendant's name]

living at [defendant's residence] ,

defendant,

attorney at law T.K.A.B. Eskes in Dordrecht.

The parties will hereinafter be referred to as ASZ and [name of defendant].

The proceedings
The course of the procedure is evidenced:

-
the application, received on 6 December 2019, with productions;

-
the defence, with production;

-
the Oral Hearing on 7 February 2020 and Mr De Ridder's speaking notes submitted on that occasion.

The facts
2.1.
On 20 April 2018, [name of defendant] underwent keyhole surgery in ASZ by [name of doctor] (hereinafter: [name of doctor]).

2.2.
By letter dated 17 December 2018, [name defendant] held ASZ liable for culpable medical surgery.

2.3.
By letter dated 17 December 2018 ASZ acknowledged receipt of the attribution of liability to the lawyer of [name of defendant]. ASZ also requested that [name of defendant] complete and sign the medical authorisation attached to the letter in order to authorise the medical director as well as the medical and paramedical staff of ASZ to submit the medical and paramedical data held by them in relation to the liability to the medical advisor of the professional liability insurer of ASZ (hereinafter referred to as: MediRisk) and to provide information in that respect to the medical advisor of MediRisk. By signing the authorisation, [name of defendant] also agrees that the medical advisor shall provide the relevant employees, advisors, claims representatives and labour experts working for MediRisk with the medical data that may be relevant to the handling of the claim.

2.4.
Following various requests from MediRisk to (the lawyer of) [name of defendant] to specify the reproaches made to ASZ and to sign and return the medical authorisation, the lawyer of [name of defendant] specified the reproaches made to ASZ in a letter dated 18 October 2019. With this letter, the medical documents of ASZ dated 19 February 2019 and the medical documents of the general practitioner dated 13 May 2019 were also sent (under cover) to MediRisk. The lawyer of [name of defendant] writes the following in this respect:

"Herewith I send you (under cover) the medical documents in our possession:

- medical documents from the Albert Schweitzer Hospital dated 19 February; and

- medical documents from general practitioner H.P. Wildeboer dated 13 May 2019.

I would like to refer your medical advisor to the contents of these documents. I would also like to draw your attention to the fact that the client hereby only gives permission to make the medical information available to your medical advisor and to no one else.

If you want to have the medical information processed by other persons (claims representatives and/or other types of doctors/experts), I would like to be the first and only one to know, so that client can give her permission or not".

The dispute
3.1.
ASZ requests to determine by way of partial dispute:

primarily: that the ASZ or Dr [name of doctor] , surgeon, as the case may be, is free, without medical authorisation from [name of defendant], to provide the professional liability insurer of ASZ or Dr [name of doctor], as the case may be, with the medical information necessary to assess its liability;

in the alternative: that [name of defendant] has no legitimate interest in not allowing ASZ or Dr [name of doctor] to provide the professional liability insurer with the information necessary to assess its liability and that [name of defendant] may be expected to sign the authorisation submitted as production 18 with the application.

3.1.1.
ASZ's primary application is based on the following.

ASZ and [name of defendant] do not have the necessary legal expertise to assess the liability of [name of defendant]. It is therefore desirable that ASZ should leave the assessment of the liability to the professional liability insurer, i.e. MediRisk. This is a customary course of events and results from the GOMA. Moreover, it follows from the policy conditions that, in principle, MediRisk is reserved to take a position on liability. In addition, it follows from established case law that a doctor or hospital may invoke medical information available in court in defence. In that case the hospital may, on the basis of Article 6 ECHR, without the patient's authorisation being required, have the medical data relevant to the claim assessed by the court or its professional liability insurer. Although Article 6 ECHR does not formally apply to the extra-judicial phase as in this case, it is reasonable for parties in the extra-judicial phase to have access to the relevant medical data in the same way as in court.

3.1.2.
ASZ bases its subsidiary application on the following.

In so far as ASZ does require authorisation from [name of defendant] to provide MediRisk with the medical data of [name of defendant], [name of defendant] has no justified interest in not providing such authorisation. In the first place, it follows from recommendation 14 of the GOMA that it is reasonable for [name of defendant] to grant the authorisation. In addition, MediRisk has nothing to gain from the mere permission of [name of defendant] to make the medical information it has sent available to the medical advisor. Although the medical advisor can consider the medical side of the case, he cannot share his findings with anyone. Moreover, a medical advisor is not an expert when it comes to a legal assessment of the matter. Ultimately it is the case handler who, taking into account the advice of the medical advisor and the documents on which that advice is based, takes the legal position regarding the liability claim. Furthermore, without medical authorisation, ASZ is not in a position to verify whether MediRisk has all relevant information and whether MediRisk has other information than [name of doctor] was known at the time. The reverse also applies to MediRisk. It cannot check with ASZ whether the selection of medical documents, such as the lawyer of [name of defendant] who provided MediRisk with them, provides a complete picture. Finally, without medical authorisation MediRisk cannot take cognizance of [name of doctor]'s view, which is undesirable because a doctor has more specific expertise than MediRisk's medical advisor. As a result, the liability cannot be assessed. ASZ refers in this respect to the judgment of the Supreme Court of 16 March 2018 (ECLI:NL:HR:2018:363).

3.2.
3.2. [name of defendant] seeks the rejection of ASZ's application.

3.2.1.
In opposition to ASZ's primary application, [name of defendant] submits the following.

In so far as what ASZ has put forward must be understood as reliance on the possibility of exception provided for in Article 9(2)(f) of the AVG, ASZ has never indicated what legal action it intends to bring. Nor has the possibility of exception provided for in Article 9(2)(h) of the AVG become apparent. The permitted processing no longer serves to provide health care and an obligation to pay compensation in the event of failure to comply with a treatment agreement does not fall within the scope of this exception. Furthermore, the required guarantee that the data processing will be carried out by or under the responsibility of a professional who is bound by a professional confidentiality cannot be met since MediRisk can be regarded as an independent processing manager and furthermore, the persons employed by MediRisk or commissioned by third parties employed by MediRisk do not work under the responsibility of such a professional who is bound by a professional confidentiality. In so far as ASZ invokes the possibility of exception provided for in Section 9(2)(g) in conjunction with Section 30(3)(b) of the UAVG, MediRisk is not at liberty to process the data of [name of defendant] now that it has already expressed its objection to this.

3.2.2.
Against the subsidiary application of ASZ, [name of defendant] submits the following.

The lawyer of [name of defendant] has already sent the complete medical file of [name of defendant] to MediRisk. ASZ therefore no longer has any interest in processing its subsidiary application. According to standards of reasonableness and fairness, [name of defendant] cannot be required to give up its rights arising from the privacy and data protection rules before ASZ, or at least MediRisk, first has to deal with the substance of the claim for liability. [name of defendant] is supported in this respect by a decision of the District Court of Oost-Brabant of 12 October 2018, which was submitted as production 16 with the application. The scope of the authorization demanded by ASZ is unnecessary and, because of the far too broad wording, disproportionate.

3.3.
By way of counter-application, [name of defendant] requested by order, enforceable in stock, that ASZ or MediRisk, as the case may be, should deal with the case (without a signed authorisation) and give an opinion on the allegations made by [name of defendant]. In the alternative, [name of defendant] seeks the appointment of Professor D.J. Gouma as an expert and to ask him the questions referred to in the defence under reference number 81. Furthermore, [name of defendant] requests that ASZ be ordered to pay the costs of the partial dispute amounting to € 12,069.75 plus court registry fees and that these costs be transferred by ASZ to [name of defendant]'s lawyer within fourteen days of the order.

3.4.
ASZ primarily claims that [name of defendant] in its counter-application should be declared inadmissible, or at least that the application should be rejected.

The assessment
4.1.
ASZ has applied to the court with a request as referred to in Section 1019w of the Dutch Code of Civil Procedure (Rv). This article includes the possibility of partial dispute proceedings. This procedure offers both the person who suffers damage as a result of death or injury, and the person who is held liable for this, the opportunity to appeal to the court during the extrajudicial negotiation phase. The purpose of the partial dispute procedure is to simplify and speed up the out-of-court settlement of personal injury and death damage.

4.2.
There is no dispute between the parties that ASZ's requests and the counter-application of [name of defendant] lend themselves to being dealt with in a partial dispute procedure. With both requests ASZ aims to ensure that the medical details of [name of defendant] end up with MediRisk so that MediRisk can assess the liability of [name of defendant]. Conversely, [name of defendant] takes the position with its primary counter-application that ASZ should handle the liability claim without providing MediRisk with its medical data. These requests ask the court whether it is necessary for ASZ to provide MediRisk with [name of defendant]'s medical data (with or without [name of defendant]'s authorisation) for the purposes of handling and assessing [name of defendant]'s liability. An assessment of the contentious issues may lead to the smoothing of the negotiations which could ultimately lead to a settlement agreement. The case is therefore suitable for treatment as a partial dispute. The court will consider ASZ's requests as well as the primary counter-application of [name of defendant], in view of their interdependence. If necessary, the subsidiary counter-application will be dealt with separately.

4.3.
The District Court will consider the applications as follows.

4.4.
4.4. [name of defendant] rightly argues that the processing of special personal data, including medical data, is in principle prohibited (ex Article 9 paragraph 1 of the AVG). Respect for privacy (as laid down in, among other things, Article 10 of the Constitution) and, by extension, the right to privacy, is one of the most important fundamental rights. These rights can only be infringed under exceptional conditions.

4.5.
ASZ states that it is customary for a doctor and/or a hospital to leave the assessment of liability to the professional liability insurer, which also follows from the GOMA and from the policy conditions.

4.6.
However, it may be the case that ASZ has made the choice to leave the assessment of the liability to MediRisk, which it is also free to do; this does not affect [name of defendant]. [name of defendant] is not bound by the GOMA or the policy conditions. Nor is it the case that, as ASZ seems to state, the choice of ASZ to have the liability assessed by a third party (in this case its professional liability insurer) means that the ban on processing medical data of [name of defendant] no longer applies. The circumstance that in practice this could make the assessment by the professional liability insurer difficult is of insufficient weight to infringe a fundamental right.

4.7.
ASZ also invokes Article 9(2)(f) of the AVG, from which it follows that Article 9(1) of the AVG does not apply if the processing is necessary for the institution, exercise or substantiation of an action or if courts are acting within the framework of their jurisdiction. During the oral hearing, ASZ argued that the exception of Article 9 subsection 2 f AVG also relates to the extrajudicial phase in which the parties currently find themselves as well as to conducting a defence against a claim for liability. The latter would also follow from the English translation of Article 9(2)(f) AVG. ASZ also relied on Article 6 of the ECHR to substantiate its application. According to ASZ, it is reasonable for parties in the extrajudicial phase of a dispute to have access to the relevant medical data in the same way as in court.

4.8.
The court does not follow ASZ in its argument. The AVG defines exceptions to the prohibition to process special personal data, including medical data. However, the exception referred to by ASZ relates to legal proceedings and not to the situation in which the parties are negotiating, as is currently the case.

Article 6 ECHR also refers to the judicial procedure and does not provide any guarantees for the extrajudicial process. ASZ cannot therefore invoke these articles at this stage of the dispute. Nor can an appeal to reasonableness and fairness extend the scope of application of these articles to the extrajudicial phase. This is not in itself because the extrajudicial phase, in which the parties are free to determine the frameworks for the settlement of their dispute themselves, is an essentially different phase from the judicial procedure. If legal proceedings are initiated between the parties, ASZ will, of course, have recourse to the aforementioned articles. Incidentally, in that case [name of defendant] also bears, in principle, the obligation to assert and the burden of proof of its assertion that it has suffered damage.

4.9.
Nor does the Court follow ASZ in its argument that it is necessary for the assessment of liability that it shares the medical data of [name of defendant] with MediRisk, with or without the authorisation of [name of defendant], because ASZ and the medical advisor of MediRisk are only able to assess the medical side of the case and not the legal side. To that end, the following is of decisive importance.

ASZ already possesses the medical data of [name of defendant] on the basis of which it can defend itself against the liability of [name of defendant]. ASZ's wish to outsource the assessment of the liability to MediRisk cannot - as already considered - be relied upon against [name of defendant]. This also applies to any obligations of ASZ arising from a (contractual) relationship existing between it and MediRisk.

Apart from the above, (the lawyer of) [name of defendant] indicated during the oral hearing that the advice of MediRisk's medical advisor can be shared with a lawyer without that lawyer being aware of [name of defendant]'s medical file. If an authorization from [name of defendant] is required, [name of defendant] will issue a specific authorization. Also, [name defendant] has no objection if the medical advisor communicates with [name doctor] . Finally, [name of defendant] is not unwilling to grant (stepwise) authorisations if ASZ requests it to do so. However, [name of defendant] wishes to retain control of whoever takes cognizance of her medical details.

4.10.
The foregoing considerations lead to the conclusion that there is already no need for ASZ to provide its medical data (with or without the authorisation of [name of defendant]) to MediRisk in order to deal with and assess the liability of [name of defendant] and that ASZ is obliged to deal with the liability in the sense that it takes a position as far as possible on the allegations made by [name of defendant]. This implies that both ASZ's primary and subsidiary applications will be rejected and that [name of defendant]'s primary counter-application will be granted in the above sense.

4.11.
The granting of the primary counter-application of [name of defendant] implies that the subsidiary counter-application no longer needs to be dealt with.

Partial dispute costs

4.12.
Pursuant to Article 1019aa Rv, the costs incurred by the person suffering loss or injury (in this case [name of defendant]) in dealing with the application are estimated in the decision. The double test of reasonableness must be applied.

4.13.
The statement of defence, also containing an independent counter-application, contains a specification of the costs incurred by the lawyer of [name of defendant]. The costs of [name of defendant]'s lawyer amount to a total of € 12,069.75 (including 21% VAT) up to and including the hearing, based on an hourly rate of € 285.00 (excluding 21% VAT).

4.14.
ASZ disputed the reasonableness of the amount of the costs claimed.

4.15.
According to the specification, the lawyer of [name of defendant] spent 3 hours studying the application, 15 hours drafting the defence, 8 hours studying jurisprudence/literature, 1 hour studying documents/file, 1 hour consulting with [name of defendant] , 1 hour letters/e-mail various, 1 hour preparing the hearing and 5 hours attending the hearing (including travel time), thus a total of 35 hours.

4.16.
An hourly rate of € 285.00 excluding VAT is considered too high by the District Court, also taking into account the nature of the case for a specialised personal injury lawyer. The Court considers an hourly rate of € 260.00 excluding VAT to be reasonable. Moreover, a specialised personal injury lawyer such as Mr. Eskes may be expected to need less time than average for a case like this. In particular, the court does not consider the number of hours declared for drawing up the statement of defence to be reasonable because it largely consists of a representation of the legal AVG framework. An estimate of 8 hours will be made for the drafting of the defence. The number of hours spent studying jurisprudence/literature is also unreasonably high for a specialist. For this purpose, 5 hours will be budgeted. Finally, the number of hours budgeted for the hearing, including travel time, does not seem reasonable to the court, also taking into account that the full hourly rate has been charged for the travel time. Instead of the budgeted 5 hours, 3 hours will be budgeted. All in all, the court estimates the number of hours spent on the partial dispute at 23 hours. The costs for the partial dispute therefore amount to (the hourly rate of € 314.60 including 21% VAT x 23 hours =) € 7,235.80, to be increased by the court fee of € 83.00 paid by [name of defendant]. The costs of the partial dispute proceedings on the part of [name of defendant] are estimated at € 7,318.80 including VAT. Since it has not now been established that ASZ is liable for the damage that [name of defendant] claims to have suffered, ASZ will not be ordered to pay these costs.

The decision
The court

5.1.
Dismisses ASZ's primary and subsidiary applications,

5.2.
provides that ASZ is to deal with the case (without a signed authorisation) and that it is to take a position as far as possible on the allegations made by [name of defendant],

5.3.
estimates the costs referred to in Section 1019aa(1) of the Rv on the part of [name of defendant] at € 7,318.80 including VAT,

5.4.
hereby declares this Decision under 5.2. executable in stock,

5.5.
Rejects the more or otherwise requested by [name of defendant].

This order was issued by S.M. den Hollander and signed and publicly pronounced by A.F.L. Geerdes on 10 April 2020. [3078 / 2872]