[ Thursday, September 21, 2006 ]


No Private Cause of Action under HIPAA: Have you or your clients been threatened by a potential plaintiff who says he's going to "sue you for this HIPAA violation"? A client of mine actually received a demand letter seeking monetary damages based on the penalty provisions of HIPAA for an alleged improper disclosure. We informed the plaintiff that there's no private cause of action under HIPAA, which is pretty clear from the commentary to the regulations and the legislative history. Now, a Federal District Court in Nebraska, in Diering v. Regional West Medical Center, has reiterated that a wrongful disclosure in violation of HIPAA does not create a private cause of action where the person whose information was disclosed can sue the covered entity that breached HIPAA in disclosing it. The hospital's ER director told a potential new employer that the doctor had undergone voluntary drug/alcohol treatment, and the potential employer decided not to hire the doctor for a $300,000/year gig. So, the doctor sued, but the court said any claims for damages under HIPAA would not stand. A BNA article and a copy of the opinion are available for BNA subscribers.

The court also gives a decent list of other court cases that have reached the same conclusion: Bradford v. Blake, 2006 WL 744307 (E.D. Mo. 2006), Johnson v. Quander, 370 F.Supp.2d 79 (D.D.C. 2005), Poli v. Mountain Valleys Health Ctrs., Inc., No. 2:05-2015-GEB-KJM, 2006 WL 83378 (E.D. Cal. Jan. 11, 2006), and Bradford v. Semar, No. 4:04-CV-1711 CDP, 2005 WL 1806344 (E.D. Mo. July 28, 2005).

I should note that the opinion only dismisses claims for causes of action due to breach of HIPAA and a Nebraska state statute, and doesn't address the physician's other claims. He may well have a cause of action for some other common-law or Nebraska statutory claim, such as breach of a duty of confidentiality, slander, intentional infliction of emotional distress, casting in a false light, or some such.

Jeff [9:50 AM]

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