If the victim of a cyberattack cannot determine whether data was accessed or acquired, should that increase the damages sought by plaintiffs in a class action suit? Or should it get the suit tossed out because the plaintiffs can’t prove any theft of their data?
Kelly Mehorter reports about a class action lawsuit filed against Lubbock Heart and Surgical Hospital over a 2022 breach. The hospital notified 23,379 patients about a July incident in September 2022, but then updated their report in December 2022. The updated report frankly admitted, “Our investigation could not determine whether the unauthorized party did, in fact, access or copy any files but was unable to rule it out.”
The types of information that might have been accessed or acquired included names, contact information, demographic information, dates of birth, Social Security numbers, diagnosis and treatment information, prescription information, Medical Record Numbers, provider names, dates of service, and/or health insurance information.
According to the lawsuit filed by plaintiff Joe Lara:
4. It is unknown for precisely how long the cybercriminals had access to Defendant’s
network before the breach was discovered. In other words, Defendant had no effective means to prevent, detect, stop, or mitigate breaches of its systems—thereby allowing cybercriminals
unrestricted access to patients’ PII/PHI.
5. On information and belief, cybercriminals were able to breach Defendant’s inadequate systems because Defendant failed to adequately train its employees on cybersecurity and failed to maintain reasonable security safeguards or protocols to protect the Class’s PII/PHI. In short, Defendant’s failures placed the Class’s PII/PHI in a vulnerable position—rendering them easy targets for cybercriminals.
So a lot of the allegations are fairly stock allegations following a data breach,but if a situation like this doesn’t settle, what happens when it gets to court? If plaintiffs can’t prove that their information was accessed or acquired, and defendants can’t prove that it wasn’t, then do plaintiffs have standing? And what might a jury decide if it ever went to trial? Is this where the “in an abundance of caution” language comes into play — where defendants can say that they do not admit any breach but are just being cautious?