Lawyers clash over Brown patient files

  • Legal battle: Mark Pettingill (File photograph by Akil Simmons)

    Legal battle: Mark Pettingill (File photograph by Akil Simmons)

A lawyer for patients whose files were seized by police has called for an investigator to be removed from the case over allegations of contempt of court.

Mark Pettingill told the Supreme Court yesterday that the police officer approached a patient at her workplace and questioned her.

He suggested the officer had accessed medical files — seized in a raid on Bermuda Healthcare Services in Paget and the Brown-Darrell Clinic in Smith’s — despite a court order.

But Mark Diel, the lawyer for the Bermuda Police Service, said the officer had approached the patient to find out if patient information had been leaked.

Mr Pettingill told the court that last year the officer questioned a patient whose files had been seized as part of an investigation into allegations that the clinics ordered unneeded diagnostic scans.

He said the officer had asked the patient if she attended a meeting held about the file seizures and how she had heard about it.

Mr Pettingill said the only way the investigator would have known she was a patient was if he had used information in her medical files.

He said: “The fact is, he has the knowledge and he’s not supposed to do anything about the knowledge. He cannot utilise it for any purpose.

“His purpose was to glean further information about the patients whose files were seized.

“It’s the approach that causes contempt. It’s using the knowledge to go and talk to her.”

However, Mr Diel said that the police inspector did not access the woman’s files.

He explained that police had drawn up a list of patients who had received a high number of scans before the files were seized.

He said: “We are taking all possible steps to protect patient confidentiality. The list that was generated was generated by the police.

“It was nothing that was seized from the clinics.”

Mr Diel told the court the officer had approached the patient about concerns that people whose files were seized had been contacted in breach of an “undertaking” agreement made with the raided clinics.

He added that submissions before the court “tacitly admitted” that the clinics had breached the order when they contacted the patients.

Mr Diel also argued during the hearing, held in chambers, that Mr Pettingill and Victoria Greening, who also represents the patients in the case, had a conflict of interest.

He said Mr Pettingill, a former attorney-general, and Ms Greening, a former Department of Public Prosecutions lawyer, had both received privileged information while in those posts.

Mr Diel added that when Mr Pettingill’s and Ms Greening’s Chancery Legal first became involved in the case, it was understood they were focused only on the confidentiality of the medical records.

He said that the parties were working to set up a protocol on how the records would be handled at the time.

Mr Diel added that if the clinics and Mahesh Reddy, a doctor with the clinics, dropped out of the case because of the protocol, the patients had made it clear they wanted to continue with the judicial review.

He said: “Once we knew their intention was to substitute themselves for the applicants, we properly raised the issue of conflict.”

Mr Pettingill explained the medical files were not seized until two years after he quit as Attorney-General and Ms Greening had no privileged information on the case.

He added that Mr Diel had failed to say what confidential or privileged information either he or Ms Greening had, or how it would benefit their case.

Mr Pettingill said: “Patients have a right to privacy of their medical records and our position is the Bermuda Police Service had no right to come and remove them, much less review them.

“I don’t for a second begin to see where Ms Greening or myself have any type of conflict or advantage in that representation.”

Mr Pettingill added: “It cannot be just the inference that we have confidential information or that confidential information was discussed.

“There has to be the definition of some confidential information and there is nowhere in any of the affidavits that my learned friends indicate what this information is.”

Mr Pettingill also argued that it would be “onerous, outrageous and unfair” for his clients to have to find new lawyers after the case had started.

It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers.

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