CHARLESTON - The state Supreme Court on Nov. 15 reversed the dismissal of a medical breach of confidentiality suit and sent it back to the Circuit Court of Cabell County for further proceedings.

The circuit court had dismissed the suit for “failure to state a claim” after determining that the suit, asserting a variety of state law claims, was preempted by HIPAA – the federally enacted Health Insurance Portability and Accountability Act.

The plaintiff R.K., who is referred to by his initials because of the sensitive nature of the facts underlying the case, was admitted to St. Mary’s Medical Center for psychiatric treatment. While hospitalized, he disclosed confidential personal information to hospital staff. He had never shared this information with anyone, including his wife, who he was in the process of being divorced from, the opinion says.

St. Mary employees, after improperly accessing his records, told his estranged wife and her divorce lawyer the confidential information, the opinion says. R.K. subsequently learned of this breach and contacted the hospital, which admitted there had been “an inappropriate access to his medical records.” R.K. then filed suit in circuit court.

The circuit court found that HIPAA completely preempted R.K.’s state law claims because “they involve the disclosure of health information” and “remedies under state law are not permitted by... and are rejected by HIPAA.” R.K. appealed to the Supreme Court.

The Court, while acknowledging that “the parties correctly have observed the absence of a plethora of precedent on the issue of HIPAA preemption of state law claims,” noted that “contrary to finding state common-law claims preempted by HIPAA, several courts have found that HIPAA violation may be used either as the basis for a claim of negligence per se, or that HIPPA may be used to supply the standard of care for other tort claims.”

After analyzing the case law from several other jurisdictions, Justice Robin Jean Davis wrote, “We conclude that state common-law claims for the wrongful disclosure of medical or personal health information are not inconsistent with HIPAA. Rather...such state-law claims compliment HIPAA by enhancing the penalties for its violation and thereby encouraging HIPAA compliance. Accordingly, we now hold that common-law tort claims based upon the wrongful disclosure of medical or personal health information are not preempted by the Health Insurance Portability and Accountability Act of 1996.”

Chief Justice Menis Ketchum wrote a dissenting opinion, asserting West Virginia should use a test adopted by New Jersey courts on the issue which when applied “to the causes of action alleged in the plaintiff’s complaint, I find that they are inconsistent with HIPAA."

"A lawsuit for damages under our statutes or common law creates an obstacle to the purposes and objectives of HIPAA. Such lawsuits are, therefore, preempted by HIPAA," Ketchum wrote.

Having reversed the HIPPA preemption ruling, the Court remanded the case back to the Circuit Court ofCabell County for further proceedings.

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