State of confusion: the HIPAA privacy rule and state physician-patient privilege laws in federal question cases

Suffolk Journal of Trial & Appellate Advocacy, Annual, 2007 by Jenna Phipps

Congress did not intend for state laws to preempt HIPAA or for HIPAA to incorporate state laws. (110) Congress has been more explicit in giving state law the force and effect of federal law in those instances where it has chosen to do so. (111) No similar explicit language was used in HIPAA's anti-preemption provision, implying that Congress did not intend such a result. (112)

Further, HHS did not believe that the Privacy Rule gave federal effect to state privilege laws. (113) HHS attempted to balance individuals' privacy interests with various competing public interests, such as the use of relevant medical record information in judicial proceedings. (114) The Privacy Rule allows for disclosure in such situations, even without the individual patient's consent, so long as proper procedures are followed. (115) HHS emphasized that the rule dictates the procedures parties must use in obtaining health information; it does not disturb any previously existing state or federal privileges. (116) State privileges never existed in federal question cases, so the Privacy Rule's only effect in these cases is to provide procedures for disclosure. (117)

The Seventh Circuit properly held that the Privacy Rule does not allow for state privileges to apply in federal question cases. (118) While that court recognized that this point was "not free from doubt," the majority of courts analyzing this issue have also reached the same conclusion. (119) The problematic cases are those in which courts exercising federal question jurisdiction perform preemption analyses, in which they determine if the relevant state privilege law is more stringent than the protections offered by HIPAA. (120) These cases create the potential for state laws to improperly control in federal courts, and also confuse the proper analysis. (121) Future courts should follow the Seventh Circuit's lead and decline to perform these preemption analyses. (122)

V. CONCLUSION

While many states recognize statutory physician-patient privileges, there is no similar privilege in the federal courts. HIPAA did not have the effect of creating such a privilege--either directly or by federalizing state privileges. HIPAA's preemption language allows more stringent state privileges to continue their previous effect in state courts, but does not permit courts exercising federal question jurisdiction to apply these state privileges. Federal courts currently performing preemption analyses to determine if the applicable state statute is more stringent than HIPAA are improperly giving federal effect to state law.

Privacy surrounding medical records is certainly an important value; however, it must be balanced against other values, such as free availability of relevant evidence in judicial proceedings. Congress and federal courts have thus far chosen to weigh the balance on the side of admissibility of medical records and have not enacted a federal physician-patient privilege. While HIPAA did not itself create such a privilege, its passage is a public recognition of the need for privacy protections in an environment in which it is increasingly easy to transfer information. Until either Congress or the federal judiciary build upon this recognition and formally recognize a physician-patient privilege, states' privileges should not control in federal courts.