Fourth Circuit Affirms Information Right of Privacy and Rejects Private Cause of Action under HIPAA

In a published decision, the Fourth Circuit reaffirmed a constitutional right to informational privacy and joined other circuits in rejecting a private cause of action for violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

The case, which can be found here, arose from the inadvertent disclosure of the plaintiff’s HIV status while incarcerated. The plaintiff consequently sued various state officials under the Fourteenth Amendment (due process) and HIPAA.

Looking to prior Fourth Circuit caselaw, the court reaffirmed that individuals have a constitutional right to privacy for information for which the individual has a reasonable expectation of privacy. If the information is entitled to privacy protection, the court then examines whether the government has a compelling interest in disclosure that outweighs the individual's privacy interest. This is a fairly typical test utilized in evaluating government action versus private rights. While court noted that an individual's right to privacy extends beyond matters of reproduction, contraception, abortion and marriage, the court ruled that the plaintiff did not have a reasonable expectation of privacy about his HIV status.

Rejecting the plaintiff’s private claim under HIPAA, the court joined every other circuit to consider this question and noted that HIPAA does not provide for a private cause of action, but rather delegates enforcement authority to the Department of Health and Human Services.

The HIPAA decision is important because similar disclosures often occur in non-competition and trade secret cases. It is not unusual to see departing employees take patient or client lists with them; these lists may very well contain HIPAA protected information. While the employer has duties to disclose such violations, the Fourth Circuit seems to have ended any possibility that the individuals could privately sue under HIPAA (although they may be able to advance other causes of action).