Patients' Privacy Complaint Conflates Public Website With Patient Portal: Banner Health

The plaintiffs’ opposition to Banner Health’s motion to dismiss their consolidated privacy complaint gives the "false impression” that Banner “surreptitiously discloses” the contents of their “actual medical communications or records to third parties” for profits, said Banner's reply Monday (docket 2:23-cv-00985) in U.S. District Court for Arizona in Phoenix in support of its motion to dismiss. The plaintiffs instead “conflate Banner’s public website with its patient portal,” the opposition said. Cheryl McCulley’s class action, combined with two similar actions in November (see 2311150002), allege Banner installed Meta Pixel and other tracking technologies on its website to “intercept” and send private information to third parties such as Facebook and Google without users’ “informed consent,” in violation of invasion of privacy common law, the Arizona Consumer Fraud Act and the Electronic Communications Privacy Act. But plaintiffs’ claims rely on generalized allegations of how they used Banner’s public website, how they received ads relating to their medical conditions after alleging they used the free public websites, and how a “hypothetical website visitor’s browsing activity may have been transmitted to Meta or other third parties,” said the opposition. Their allegations are “merely speculations about what happens when they intentionally search a public website for medical topics,” it said. Plaintiffs “fail to allege a single fact” about how the Pixel was configured on Banner’s patient portal, saying information available on the publicly accessible websites “stands in stark contrast to the personally identifiable patient records and medical histories protected by these statutes.”