A Flurry of Litigation over “Tracking Technologies” in Healthcare

When you hear about pixels, you might think of computer screens – the smaller the pixels, the better the image. Or you might think of the 2015 movie Pixels, starring Adam Sandler and Peter Dinklage, in which aliens attack Earth in the form of pixelated video-game characters – like Pac-Man and Donkey Kong.

Today we’re talking about the Meta Pixel – which is actually a snippet of code for websites. It’s just barely visible on a website, like a regular pixel. The Meta Pixel is one of a variety of tools that have come to be called “tracking technologies.”

These have been made available by a number of companies, including Meta and Google. Until recently, they were used in most websites.

Companies use tracking technologies so their websites function better. For healthcare providers, a better website could help people find the care they need.

However, the tracking technologies also collect certain types of data about the person visiting the website. The information collected can vary – for example, the type of device the person is using, like a phone or laptop, or which links a person clicks on. And sometimes that information is made accessible to the company that provided the tracking technology.

Plaintiffs’ attorneys have alleged that those companies, like Meta and Google, use that information and combine it with other information to send targeted advertising, which they claim is improper and unlawful. Even if the tracking technologies are outside of the patient portal, plaintiffs’ counsel will argue that the links a person clicks on can reveal private or sensitive information.

What are we seeing now? Litigation has been filed against healthcare providers across the country, from big systems to private practice groups, ranging from class-actions to one-off threatened lawsuits. Either or both can be devastating to healthcare providers.

These lawsuits typically allege a variety of federal statutory claims and state statutory, contract, and tort claims. Currently, there is no comprehensive federal regulatory scheme for data privacy, and different states have different laws, which complicates compliance efforts.

When these lawsuits were first filed, many companies had insurance policies that provided coverage. Now, we are increasingly seeing insurance policies that provide limited or no coverage.

Many of the lawsuits have settled, so there aren’t many court decisions on the merits to provide guidance.

What is a healthcare provider to do? There are options available to reduce exposure to these claims, going forward. Some providers have stopped using any tracking technology at all. Others allow the technology to “turn on” only if a user affirmatively consents by clicking a button on the website.

And there are other products now available that allow websites to function well and avoid many of the concerns raised by plaintiffs’ counsel.

Of course, before taking any action, you should consult with a lawyer who specializes in privacy issues and discuss what options work for you.