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HIPAA and employment litigation

Via Workplace Prof Blog, here's the start of the SSRN abstract of a Penn State Law Journal article (by Brian K. Powell and Richard A. Bales, both of Northern Kentucky U. College of Law) on how the federal health-privacy law, HIPAA, in addition to its many other untoward consequences, is influencing the handling of employment litigation:

Plaintiffs in many litigated employment cases hire medical or psychological experts to buttress their claims of physical or mental injuries. Prior to HIPAA's 1996 enactment, many jurisdictions explicitly permitted a defendant-employer to engage in various degrees of ex parte contact with a plaintiff-employee's treating physicians. Such informal discovery was much faster and cheaper than formal discovery by deposition and expert reports, and arguably helped dampen the overall cost of litigation. However, HIPAA changed this dynamic profoundly: the statute sets a high standard of privacy protection, and broadly preempts contrary state law. Moreover, while plaintiff-employees can use HIPAA to thwart informal discovery by defendant-employers, defendant-employers cannot use HIPAA's privacy shield to thwart discovery by plaintiff-employees of the defendant-employers' human resource records. In this way, HIPAA acts as both shield and sword in favor of plaintiff-employees....



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.