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HIPAA privacy suit against newspaper dismissed

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HIPAA privacy suit against newspaper dismissed

  • A federal district court in Denver ruled that the Health Insurance Portability and Accountability Act does not grant individuals the right to sue for privacy violations.

Aug. 11, 2004 — A federal district judge in Colorado dismissed a lawsuit last week in which a teaching hospital sought damages under the Health Insurance Portability and Accountability Act (HIPAA) after a newspaper published excerpts of a peer review report.

Judge Walker Miller of U.S. District Court in Denver ruled Aug. 2 that HIPAA “displays no intent to create a private right of action” for the release of private health-related information. Rather, Miller held, HIPAA only regulates those “who might have access to individuals’ health information.”

The University of Colorado Hospital Authority unsuccessfully sought a temporary restraining order last fall to prevent the Rocky Mountain News in Denver from publishing the typically secret peer review report, which the newspaper says it obtained from an anonymous source. Miller, who ruled in that case as well, said in October that privacy protections under HIPAA did not justify issuing a prior restraint upon the news media.

Unlike his ruling denying a temporary restraining order, Miller last week did not address the public interest in the regulation of the medical profession. His decision instead focused entirely on the statutory language of HIPAA. Miller held that the act, as written, simply does not provide an individual right to sue for damages stemming from a privacy violation.

HIPAA’s privacy rules carry criminal penalties of $250,000 and 10 years in jail when a violation is committed with “intent to sell, transfer or use individually identifiable health information for commercial advantage, personal gain or malicious harm.” Citing a 2001 U.S. Supreme Court decision, Alexander v. Sandoval , Miller held that “private rights of action to enforce federal law must be created by Congress,” not the courts.

The 80-page peer review report detailed various instances of substandard care and breaches of ethics by Dr. Issam Awad, former chairman of the University of Colorado Medical School’s neurosurgery department. The peer review committee, made up of five faculty members, recommended in January 2003 that Awad’s hospital privileges be permanently revoked. No such action was taken.

After the News published excerpts of the report in November, the Hospital Authority amended its complaint. It contended that the newspaper violated HIPAA, that possession of the report constituted civil theft under state law, and that the News ‘ refusal to return the report constituted trespass of personal property. Miller ordered the latter two claims to be heard by a state court.

In June 2003, the Accreditation Panel for Graduate Medical Education put the University of Colorado’s residency program in neurosurgery on probation — due largely to conflicts surrounding Awad. He left the university in October and is currently teaching at the Feinberg School of Medicine at Northwestern University in Illinois.

(University of Colorado Hospital Authority v. The Denver Publishing Co.; Media Counsel: Marc Flink, Baker & Hostetler, Denver) JL

© 2004 The Reporters Committee for Freedom of the Press

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