Wednesday, November 24, 2010

CIGNA Sued For Surveillance

In Tennessee, CIGNA terminated the long term disability (“LTD”) benefits of an anesthesiologist with Complex Regional Pain Syndrome after being required to attend a functional capacity evaluation (“FCE”) by a physical therapist. The anesthesiologist sued CIGNA and its private investigator for invasion of privacy and civil conspiracy. A Tennessee court refused to dismiss the claims.

The anesthesiologist contended that the videotaping of her FCE unreasonably intruded on her right to seclusion. She argued that her case was analogous to the situation involving intrusion into private medical situations. The relevant case law holds that whether an intrusion would be offensive to persons of ordinary sensibilities is a question for the fact-finder. The court ruled that the case comes down to a question of reasonableness, and that a jury will determine whether the anesthesiologist’s privacy was invaded by considering the degree, context, circumstances, motives, and setting surrounding the intrusion.

CIGNA and the investigator also moved for summary judgment to dismiss the civil conspiracy claim on the grounds that because the anesthesiologist could not establish her underlying claim for invasion of privacy she could not establish a conspiracy to invade the anesthesiologist’s privacy. However, the court concluded that a jury could find that the anesthesiologist’s privacy was invaded.
CIGNA’s then argued that the conspiracy claim had to be rejected because there was no evidence that CIGNA or the investigator knew the FCE clinic had uncovered windows, and that the investigator “simply got lucky” when he went to there and was able to film the anesthesiologist. The court also rejected that argument finding that it overlooked that CIGNA ordered the surveillance, scheduled it for when the FCE was to take place, identified the location for the FCE, and fully or reasonably expected that the FCE would be filmed by the investigator. Thus, the court also held that the conspiracy claim would have to be decided by the jury.

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