[ Friday, November 16, 2012 ]


West Virginia HIPAA preemption case: BNA has reported that the West Virginia Supreme Court has determined (correctly in my opinion) that HIPAA does not preempt state common-law tort claims for wrongful disclosure of private information. 

It's common knowledge among HIPAAcrats that, while an individual who has suffered from a HIPAA breach does not have a private cause of action to pursue against the breacher, he might still have common-law or state statutory causes of action (and the HIPAA rules likely set a de facto floor for privacy protection that can be used by courts to determine whether state law liability exists).  The WV court noted (and helpfully cited, in footnote 4) the many courts that have concluded that there is no private cause of action under HIPAA, but also cited several other states, including Minnesota, Delaware, Connecticut, NY and Ohio, that common-law claims for improperly releasing personal medical information are not preempted by HIPAA.

Court opinion for R.K. vs. St. Mary's is here (may require BNA subscription); other pleadings available here.

Now, the only question is, did Bob Coffield scoop me on this?  I think not.

Jeff [7:38 PM]

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