Jottings By An Employer's Lawyer

Tuesday, November 14, 2006

5th Circuit - No Private Cause of Action Under HIPAA

Becoming the first circuit court to address the issue, the 5th Circuit of Appeals finds there is no private cause of action under HIPAA. Acara v. Banks (5th Cir. 11/13/06) [pdf]. The fact that enforcement powers are given to the Secretary of Health and Human Services strongly militates against a finding that Congress intended a private cause of action. Although it is the first circuit, the court notes it is in agreement with every district court to consider the issue.

The issue arose under an interesting fact pattern -- plaintiff was suing a doctor who allegedly disclosed her private medical information during the course of a deposition. According to papers filed in the district court case, Dr. Banks had treated Ms. Acara. When she sued an insurance company, he was deposed and it was his testimony in that deposition that led to the claim dismissed in the 5th Circuit's ruling.

Getting medical testimony can often be difficult; a contrary ruling in Acara would have upped the level of difficulty dramatically.


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