Patients who use the medical records software MyChart could lose their right to launch or join class actions because of changes made by its parent company.
But experts say the terms of MyChart’s new agreement may not be enforceable in certain jurisdictions because of consumer protection laws.
Epic Systems Corp., the owner of MyChart, has introduced a new app user agreement that applies to patients in Canada. MyChart offers an online tool that allows users to access all their health records in one place.
It currently has 2.8 million users in Canada, according to a spokesperson.
“We’ve included an arbitration provision and class action waiver to make sure disputes can be resolved quickly, fairly, and without the heavy costs that often come with court lawsuits,” wrote a spokesperson in an email to CTVNews.ca earlier this week.
The new licence agreement for the app states that “any dispute, claim or controversy of any nature,” which cannot be resolved informally, should be resolved by “binding arbitration on an individual, and not a class or representative.”
By agreeing to the terms, users have chosen to have all disputes decided through individual arbitration instead of through a court, class action or other proceedings involving multiple claimants, according to the document on its App Store page.
An Epic spokesperson said that those who don’t want to sign the end user licence agreement on the app can still access their medical data using the web-based version of MyChart.
To do this, a patient must create an account with a health-care organization, such as a hospital. The web-based versions of MyChart belong to each individual organization connected to the service, and that organization may have its own terms and conditions, according to the spokesperson.
“Epic does not apply standard terms and conditions to the web,” the spokesperson wrote in an email to CTVNews.ca on Friday.
Still, a class-actions lawyer said consumers may be protected depending on where they live.
“Some of the provincial legislation prevents these types of agreements,” Linda Visser, a class-actions lawyer and partner at Siskinds LLP in London, Ont., said in a video interview with CTVNews.ca on Thursday. “Sometimes it says that they’re void.”
Visser said the following provinces have consumer protection laws involving arbitration provisions and class-action waivers: British Columbia, Ontario, Alberta, Saskatchewan, Newfoundland and Labrador, and Quebec.
She listed B.C. as an example of a province with strong legislation. It would consider an arbitration clause or a non-class action clause to be void, she said.
Visser didn’t have access to the full text of MyChart’s new agreement. But she said that in theory, some jurisdictions’ consumer protection rules may allow users who sign the agreement to sue the company on their own through the court system, even with the arbitration and non-class action clauses. However, the damages are usually “too low” to make it worth pursuing individual litigation, she added.
“Practically speaking, most of these claims would only be brought as a class action,” Visser said. “So in order to get higher damages, it’s better to go with a class action.”
As more companies in various sectors have introduced similar clauses, some jurisdictions have pushed back against them, said Michael Geist, a law professor at the University of Ottawa. Geist’s expertise includes internet and e-commerce law.
He lists as an example Ontario, which updated its consumer protection rules to block organizations from mandating that consumers can’t invoke their right to participate in class actions.
“So if they’re coming from Ontario, they may sign the agreement, but it may well be that those terms are unenforceable,” Geist said in a video interview with CTVNews.ca on Thursday.
Consumers continue to face risks when they provide their personal information to companies, said Bryan McPhadden, a lawyer with civil litigation and class action firm McPhadden LLP in Toronto.
He said widespread data breaches may be a factor in companies introducing similar clauses as MyChart.
“They are increasingly common, here and in the U.S., because the company wants to limit its legal exposure and legal costs,” McPhadden said about similar agreements, in a video interview on Thursday.
Firms prefer arbitration to resolve disputes, instead of the courts, because they would have more control in the process, McPhadden added.
An arbitrator will make the decision in the arbitration process while a judge will make rulings in a court proceeding, McPhadden said.
Visser said consumers ultimately have to be aware of their rights and decide whether they want to take any risks and use the app.
“People should always read their terms of service, and if they’re not happy with the terms of service, then avoid using that app,” she said. “The reality is in these circumstances, there’s no negotiation. The company sets the terms and consumers are in a take-it-or-leave-it position.”
