Patient Data Lost : Mahajan Imaging Sues Tata Communications
New Delhi: In probably the first of its kind case in the country, Mahajan Imaging, a premier radiology center has filed a class action complaint against Tata Communications limited, seeking compensation on account of the loss of valuable patient records and data. The National Consumer Disputes Redressal Commission (NCDRC), in response has allowed a public notice to be issued in the matter.
It is reported that the complainant, Mahajan Imaging Private Ltd, had moved a class action suit against Tata Communications seeking compensation for having lost their data. The case of the center is that it has been preserving the record and data of all the patients, who avail of its services for clinical imaging, for future reference and research, although there is no such mandate under any law or Statute for preserving such data. It is claimed that like many other similarly placed diagnostic and imaging service providers, it does not charge any extra amount from the Patients for the said purpose; such medical record is the property of the patients and it has always endeavored to keep such data in safe custody, as the trustee of the Patients. The entire process of preservation and retrieval of data and matching the same, in order to create a legitimate, appropriate and useful medical record for each of its patients is a time consuming and a highly expensive process, yet the Centre has been painstakingly undertaking the exercise in order to live upto its self-defined responsibility towards its patients.
It is claimed by the Complainant that in October 2012, it decided to avail of its services of Tata Communications for the preservation of clinical data of thousands of its patients. Accordingly, it entered into an agreement with them for the said purpose. It is alleged that sometime in May, 2016, when the Complainant could not access servers of the Opposite Party, to retrieve some clinical data, it approached them to provide up-to-date status of the data. However, despite the assurances from the functionaries of the Opposite Party, neither any information in this regard was furnished nor any remedial steps were taken for retrieval of the data already stored with the Opposite Party. Thus, extremely important data, which included prescriptions, reports, research data and analysis, etc. was lost. having-failed to evoke any positive response from the Opposite Party to its legal notice dated 12.07.2016, the Complainant filed the present Complaint, in a representative capacity, alleging deficiency in service and abject unfair trade practices on the part of the Opposite Party, in losing valuable clinical data of the patients.
The complaint was resisted on the ground that Mahajan Imaging is not a "Consumer" in the current case and hence does not come under the Act. The advocate for Tata Communications, , argued that the Mahajan Imaging had entered into a contract with his clients to maintain clinical records of their customers for commercial purposes. Hence, the complainant company did not fall within the definition of consumer under the Act and since this was the case, the complainant had no statutory right to approach the NCDRC either in an independent or in a representative capacity.
However, Tishampati Sen, appearing for the Imaging Centre stated that Tata Communications had lost clinical data entrusted to them for preservation by his clients. He argued that the said data had no connection to any commercial gain or revenue generation. Hence, it could not be argued that his client is not a consumer under the Act.
He further contended whether or not his client is a ‘consumer’ was a matter that could be decided only after both parties had led evidence in support of their pleadings. This aspect could not be decided at the stage where permission was being sought to pursue the complaint on behalf of other similarly wronged parties and for the issuance of public notice to apprise them of the complaint.
After going through the submissions, Bench of President Justice DK Jain and member M Shreesha who were to decide whether a public notice could be issued in the present class action case, agreed with the counsel for Mahajan Imaging who stated that evidence would have to be led by both parties before reaching a conclusion on whether or not the complainant was a consumer. The Bench also took a prima facie view that the complainant was a consumer.
Nothing that there was no bar under the CPC which prohibited such public notice from being issued, the Bench went on to observe that a public notice deserves to be issued in the case, given that otherwise stakeholders would be deprived of the right to voice their views on the complaint.
Therefore, the Bench ordered that public notice of the institution of the complaint be published in the Statesman and Navhind Times newspapers, on a prima facie view that the complainant is a consumer.
Explaining the matter, Adv. Ashish Kothari, Partner, Litigation, Krida Legal said," On June 29, 2018, the Hon’ble Bench of National Consumer Forum ordered for issuance of a public notice, in order to allow the complainant, a medical imaging and advanced clinical and scientific research company, to pursue the complaint against the cloud service provider in representative capacity. The Tribunal observed that in order to determine whether the complainant falls under the purview of a consumer and thus the complaint can be maintained, it is imperative to issue a notice to all the person so interested in the dispute, either by personal service or through publication. The order has already been challenged under a Special Leave Petition, which is pending before the Hon’ble Supreme Court and is likely to be listed on July 13, 2018."
It is reported that the complainant, Mahajan Imaging Private Ltd, had moved a class action suit against Tata Communications seeking compensation for having lost their data. The case of the center is that it has been preserving the record and data of all the patients, who avail of its services for clinical imaging, for future reference and research, although there is no such mandate under any law or Statute for preserving such data. It is claimed that like many other similarly placed diagnostic and imaging service providers, it does not charge any extra amount from the Patients for the said purpose; such medical record is the property of the patients and it has always endeavored to keep such data in safe custody, as the trustee of the Patients. The entire process of preservation and retrieval of data and matching the same, in order to create a legitimate, appropriate and useful medical record for each of its patients is a time consuming and a highly expensive process, yet the Centre has been painstakingly undertaking the exercise in order to live upto its self-defined responsibility towards its patients.
It is claimed by the Complainant that in October 2012, it decided to avail of its services of Tata Communications for the preservation of clinical data of thousands of its patients. Accordingly, it entered into an agreement with them for the said purpose. It is alleged that sometime in May, 2016, when the Complainant could not access servers of the Opposite Party, to retrieve some clinical data, it approached them to provide up-to-date status of the data. However, despite the assurances from the functionaries of the Opposite Party, neither any information in this regard was furnished nor any remedial steps were taken for retrieval of the data already stored with the Opposite Party. Thus, extremely important data, which included prescriptions, reports, research data and analysis, etc. was lost. having-failed to evoke any positive response from the Opposite Party to its legal notice dated 12.07.2016, the Complainant filed the present Complaint, in a representative capacity, alleging deficiency in service and abject unfair trade practices on the part of the Opposite Party, in losing valuable clinical data of the patients.
The complaint was resisted on the ground that Mahajan Imaging is not a "Consumer" in the current case and hence does not come under the Act. The advocate for Tata Communications, , argued that the Mahajan Imaging had entered into a contract with his clients to maintain clinical records of their customers for commercial purposes. Hence, the complainant company did not fall within the definition of consumer under the Act and since this was the case, the complainant had no statutory right to approach the NCDRC either in an independent or in a representative capacity.
However, Tishampati Sen, appearing for the Imaging Centre stated that Tata Communications had lost clinical data entrusted to them for preservation by his clients. He argued that the said data had no connection to any commercial gain or revenue generation. Hence, it could not be argued that his client is not a consumer under the Act.
He further contended whether or not his client is a ‘consumer’ was a matter that could be decided only after both parties had led evidence in support of their pleadings. This aspect could not be decided at the stage where permission was being sought to pursue the complaint on behalf of other similarly wronged parties and for the issuance of public notice to apprise them of the complaint.
After going through the submissions, Bench of President Justice DK Jain and member M Shreesha who were to decide whether a public notice could be issued in the present class action case, agreed with the counsel for Mahajan Imaging who stated that evidence would have to be led by both parties before reaching a conclusion on whether or not the complainant was a consumer. The Bench also took a prima facie view that the complainant was a consumer.
Nothing that there was no bar under the CPC which prohibited such public notice from being issued, the Bench went on to observe that a public notice deserves to be issued in the case, given that otherwise stakeholders would be deprived of the right to voice their views on the complaint.
Therefore, the Bench ordered that public notice of the institution of the complaint be published in the Statesman and Navhind Times newspapers, on a prima facie view that the complainant is a consumer.
Explaining the matter, Adv. Ashish Kothari, Partner, Litigation, Krida Legal said," On June 29, 2018, the Hon’ble Bench of National Consumer Forum ordered for issuance of a public notice, in order to allow the complainant, a medical imaging and advanced clinical and scientific research company, to pursue the complaint against the cloud service provider in representative capacity. The Tribunal observed that in order to determine whether the complainant falls under the purview of a consumer and thus the complaint can be maintained, it is imperative to issue a notice to all the person so interested in the dispute, either by personal service or through publication. The order has already been challenged under a Special Leave Petition, which is pending before the Hon’ble Supreme Court and is likely to be listed on July 13, 2018."
" The dispute relates to storing of personal data of the patients/customers of the Medical imaging company, on the cloud platform of the respondent. Apart from the issue at hand, this matter also highlights a larger and much serious issue of receiving and storing personal data of the Patients. European Union, through its GDPR regime, is ensuring permitted and fair use of such data. In India, Medical Council Regulation mandates secrecy of personal data. However, does not clearly specifies the manner, in which the data can be used for healthcare and research purposes," he added.
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