Posted by: Robert Markette
December 13, 2005

The U.S. District Court for the Southern District of Illinois recently reiterated the Seventh Circuit’s position on discovery in federal question actions after HIPAA.  In U.S. ex. rel., Anthony J. Camillo v. Ancilla Systems, Inc.,  (S.D. Ill. November 7, 2005), the Court addressed a hospital’s motion for a protective order that would have redacted the medical records provided to exclude any identifying information.  The hospital’s basis for this request was a requirement in Illinois regarding non-party patient information.  This Illinois law would require redaction before disclosure, which the hospital argued was more restrictive than HIPAA.  The hospital reasoned that because Illinois state law required redaction the Federal court should require it as well.

The District Court, relying upon the 7th Circuit’s decision in Northwest Memorial Hospital v. Ashcroft,  362 F.3d 923 (7th Cir. 2004) ruled that the Illinois statute was not applicable to discovery in a federal court in which the case was based upon a question of federal law.  Because the state privilege laws do not apply in federal courts, they cannot preempt HIPAA.  Therefore, redaction was not necessary.

This ruling makes sense, because the preemption analysis is only necessary if the Illinois statute applies.  However, federal courts rely upon federal common law, not state law when addressing questions of privilege and discovery.  Furthermore, HIPAA was not intended to create a federal privilege against discovery.  Under HIPAA, a non-party’s medical information may be disclosed to the litigants, as long as the required assurances are provided.

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