EAST ST. LOUIS – David Cates and seven class action colleagues who claim Southern Illinois Health Care sold private information of patients to Facebook challenged removal of the claim to U.S. district court on Sept. 5.
Lynn Toops of Indianapolis moved to remand the complaint to Williamson County Circuit Court in Marion, where Cates filed the suit for plaintiff John Doe in June.
Southern Illinois Health Care asserts federal jurisdiction as a federal officer providing online access for Medicare and Medicaid patients.
Toops claimed Southern Illinois Health Care made no showing that it assisted or helped to carry out the duties or tasks of a federal superior.
She claimed the federal government didn’t hire or enlist it to perform a particular function.
Magistrate Judge Gilbert Sison is presiding over the dispute.
Southern Illinois Health Care employs about 4,000 individuals in Carbondale’s Memorial Hospital, three smaller hospitals, and medical practices.
The complaint alleged that Southern Illinois Health Care encourages patients to use its website to search for physicians, locate facilities, and learn about specific conditions and treatment options.
Cates wrote, “When plaintiff and class members used defendant’s website and online platforms, they thought they were communicating exclusively with their trusted health care provider.”
He claimed Meta Pixel transmits data to a website server and to third parties who use it for their own products and services.
He alleged Southern Illinois Health Care effectively planted a bug on web browsers.
Cates claimed the data allows website owners to build profiles for specific individuals.
He added that Facebook uses the data to target advertisements based on medical conditions and sells the data to marketers who target Facebook pages.
“The sole purpose for defendant’s use of the Meta Pixel and other tracking technology was marketing their services and increasing their profits,” he wrote.
Cates claimed Facebook compensates Southern Illinois Health Care in the form of enhanced advertising services and cost efficient marketing on its platform.
He alleged negligence, invasion of privacy, breach of implied contract, unjust enrichment, breach of fiduciary duty, and consumer fraud.
He requested certification of a class action, an injunction against wrongful conduct, and disgorgement of wrongfully retained revenues.
He also no less than three years of credit monitoring services for the class, as well as actual damages, compensatory damages, statutory damages, punitive damages, and statutory penalties.
Erin Hines of Chicago removed the complaint to district court on Aug. 4, stating Southern Illinois Health Care adheres to national standards to protect records.
She claimed John Doe raised a question whether Southern Illinois Health Care met retention and disclosure obligations mandated by federal law.
She also claimed the federal government through executive order, legislation, and regulatory action, has developed a nationwide structure for health information technology.
Hines added that the government incentivizes and directs Medicare and Medicaid providers to offer patients online access and optimize their engagement with it.
“Defendant has dutifully assisted and followed the federal government’s direction in this effort, including through some of the actions challenged by plaintiffs here,” she wrote.
Hines claimed the 2015-2020 plan of the national information technology coordinator dictated that agencies would collaborate with private stakeholders to build a culture of access and use.
She claimed the 2020-2025 plan stated federal, state, and local governments and private sector worked together to digitize health information and health care.
She claimed regulations provide incentive payments for providers who reach certain levels of engagement through the patient portal.
Toops responded in the remand motion that, “Southern Illinois Health Care attempts to manufacture federal jurisdiction out of whole cloth.”
She claimed that beyond referring to a regulatory program, it didn’t cite a statute, provision, or published guidance showing it acted under government direction.
She claimed it didn’t allege the federal government required it to transmit data to advertising companies without consent.
She added that the program encourages providers to maintain electronic health records and has nothing to do with installing a tracking tool on its website.
“There is simply no relationship between this conduct and anything the Centers for Medicare and Medicaid Services or any other federal office directed or incentivized Southern Illinois Health Care to do,” she wrote.
John Doe is also represented by Katie St. John of Cates's firm, Mary Dugan of Indianapolis, Gerard Stranch and Andrew Mize of Nashville, Tenn., and Samuel Strauss and Raina Borelli of Madison, Wis.