On March 27, the First Circuit affirmed the dismissal of a putative class action for lack of Article III standing, rejecting the named plaintiffs’ attempt to allege an informational injury stemming from inaccurate medical records.

• The estates of two deceased individuals filed suit against the manufacturer of allegedly faulty software used to track medical records, claiming the manufacturer was liable for failing to disclose or correct certain software bugs. The estates sought to represent a class of patients whose medical providers used the defective software. The putative class included patients who were not deceased.
  • While one of the named plaintiffs learned prior to his death that his health information contained inaccuracies, the other named plaintiff did not. That plaintiff’s primary care physician had attempted to order a magnetic resonance angiogram, but the order went unfulfilled due to the alleged software glitches—resulting in her brain aneurysm remaining undiagnosed and untreated.
• The manufacturer moved to dismiss, arguing that the named plaintiffs lacked Article III standing. The estates claimed that the two deceased patients shared the following concrete injuries with the putative class: (1) a risk that their doctors would misdiagnose them or botch their medical treatment based on the faulty records; and (2) the future out-of-pocket costs necessary to find and fix the errors. The district court disagreed and dismissed the case.
• On appeal, the First Circuit likewise concluded that the named plaintiffs had not alleged a sufficiently concrete injury-in-fact because they passed away before the complaint was filed. As a result, the named plaintiffs did not face an imminent threat of injury when the complaint was filed. The court further noted that the estates could not “drum up standing by claiming [they would] need to pay money to correct errors no longer relevant to their care.”
• The court also rejected the estates’ argument that the deceased plaintiffs suffered an “informational” injury-in-fact by being unable to rely on their medical records, which were maintained through the software during their lifetimes. Citing the Supreme Court’s decision in Spokeo, Inc. v. Robins, the court explained that the authorities cited by the estates relied on Congress’s power to identify previously inadequate intangible injuries and protect them with procedural rights by statute. The estates, by contrast, were not claiming that a statute gave them a right to have the software manufacturer maintain accurate information about them and to bring suit if it did not—in fact, they conceded that their claims did not involve a new statutory right, but only rights protected at common law. The court held, however, that the estates failed to identify a common-law claim that would provide the kind of informational right that would give rise to a concrete injury-in-fact.
• As a result, the First Circuit held that the estates’ claims concerned “a moot risk of misdiagnosis or mistreatment that no statute or common-law claim makes suable,” and thus affirmed the district court’s dismissal for lack of Article III standing. The decision makes it more difficult for plaintiffs to claim informational injury absent a specific federal statute creating a right against such injury, and also confirms that named plaintiffs must be similarly situated to the putative class members they seek to represent.

The case is Amrhein v. eClinical Works LLC, No. 19-1429 (1st Cir. 2020). Read more here.