United States: What Preemption? Connecticut State Court Gives Life To Negligence Claims Based On HIPAA Privacy Standard Of Care

Last Updated: December 23 2014
Article by Douglas W. Dahl, II

Like many federal statutes, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) contains a provision governing how the statute is designed to interact with similar or otherwise related state laws.  When this type of provision is used to override or supplant similar state laws, the provision is called "preemptive."  On November 11, 2014, the Connecticut Supreme Court held in Byrne v. Avery Center For Obstetrics and Gynecology, P.C. that state law negligence claims are not preempted by HIPAA even where the plaintiff relies on HIPAA to establish the applicable standard of care.  In so holding, the Court relied heavily on the preemption language in HIPAA and the regulatory intent contained in the preamble to HIPAA's implementing regulations.  The decision should serve as a reminder to health care providers, health plans, health care clearinghouses, and their business associates that failing to comply with HIPAA could result not only in government enforcement but also claims of negligence brought by individuals.

The plaintiff in Byrne, Ms. Byrne, received gynecological and obstetrical care from defendant for a period of years.  As part of defendant's normal practices, the defendant furnished Ms. Byrne with defendant's notice of privacy practices, which, according to the decision (and unlike typical notices of privacy practices), stated that no health information would be disclosed without Ms. Bryne's authorization. Sometime later, Ms. Byrne began a short relationship with a third party.  After the relationship soured, Ms. Byrne specifically instructed defendant not to provide her personal medical records to that party.  The third party eventually filed paternity actions against Ms. Byrne in both Connecticut and Vermont and served a subpoena on defendant to appear and to furnish in Connecticut probate court medical records belonging to Ms. Byrne.  In response to the subpoena and without taking any other action (including appearing in court), defendant mailed Ms. Byrne's medical records to the probate court.  These records were then viewed by the third party and allegedly used against Ms. Byrne.  Ms. Byrne later filed a motion to seal her medical records, which was granted.

Ms. Byrne subsequently filed suit against defendant in Connecticut state court and alleged, among other things, that defendant "acted negligently by failing to use proper and reasonable care in protecting her medical file, including disclosing it without authorization in violation of" state statute and "engaged in conduct constituting negligent infliction of emotional distress."  The defendant argued that HIPAA preempts negligence-based state law claims related to the confidentiality and privacy of health information and therefore the court should dismiss Ms. Byrne's negligence claims.  After observing that there is no private right of action under HIPAA, the trial court ruled that Ms. Byrne's negligence claims were essentially claims under HIPAA, even though they had been framed in terms of state law claims, and were thus preempted.  Ms. Byrne appealed to the Connecticut Supreme Court asserting that, while her claims rely on HIPAA for informing on the standard of care owed to her by defendants, her claims constitute common law negligence actions that "complement rather than 'obstruct' HIPAA for preemption purposes."

In deciding the case, the Court first turned to the preemption language in HIPAA which provides that, subject to certain exceptions not relevant here, "a provision or requirement under this part, or a standard or implementation specification adopted or established under [relevant sections], shall supersede any contrary provision of State law, including a provision of State law that requires medical or health plan records (including billing information) to be maintained or transmitted in written rather than electronic form."  According to the Court, the use of the term "contrary" in the statute and also the regulations is significant here because it represents a narrow preemption standard, one that supplants or invalidates state law only if (1) compliance with both the applicable state and federal would be impossible, or (2) the state law "stands as an obstacle" to the purposes and objectives of HIPAA.  The Court also seemed to place significant weight on the discussion in the preamble to the final HIPAA regulations, stating that the ability to file a state law action to protect the privacy of health information does not conflict with HIPAA's penalty provisions.

With this rather narrow preemption standard as the backdrop, the Court then focused on two principles to guide its decision; namely, that (1) "ordinarily, state causes of action are not [preempted] solely because they impose liability over and above that authorized by federal law," and (2) "a complaint alleging a violation of a federal statute as an element of a cause of action, when Congress has determined that there should be no private, federal cause of action" does not transform the complaint into one arising from federal law.  In addition to these principles, the Court pointed to a number of state and federal court decisions holding that HIPAA does not preempt state law actions arising from health care providers' breaches of patient confidentiality, some that even suggested HIPAA may provide the relevant duty of care.

Based on the statutory and regulatory preemption language under HIPAA and the principles and cases referred to above, the Court held that the trial court erred in dismissing the plaintiff's negligence claims, and held that if Connecticut common law recognizes a claim based on a health care provider's alleged breach of confidentiality when responding to a subpoena, HIPAA and its implementing regulations do not bar such claims.  The Court also held that if it has become standard practice in Connecticut for health care providers to follow the guidelines in HIPAA when rendering services to patients, those guidelines may serve to inform the standard of care for claims of negligence in disclosing patients' medical records.  In conclusion, the Court stated that "the availability of such private rights of action in state courts, to the extent they exist as a matter of state law, do not preclude, conflict with, or complicate health care providers' compliance with HIPAA."

http://privacylaw.proskauer.com/2014/12/articles/hipaa-1/what-preemption-connecticut-state-court-gives-life-to-negligence-claims-based-on-hipaa-privacy-standard-of-care/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+PrivacyLawBlog+%28Privacy+Law+Blog%29What Preemption? Connecticut State Court Gives Life to Negligence Claims Based on HIPAA Privacy Standard of Care

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions