The health care system in the United States is under conflicting pressures. From one angle, there is a demand for the highest standard of care, which includes efficient, confidential communications between doctors and patients. From another, however, the technology that has facilitated such efficiency has outpaced the security mechanisms currently in place to protect a long-recognized right to privacy. In an era of data tracking, the important privacy interest that Congress has recognized since 1996 confronts a growing threat of data commodification. Despite significant potential consequences, however, there is neither guaranteed statutory recovery nor cohesion among states for the process of any potential recovery under common law.
This Note proposes that a private, statutory cause of action for a violation of one’s medical privacy is the best solution to the growing problem arising out of the intersection of digital medical information and data tracking technology. Considering the realities of a medical system under demands that make an efficient return to manual data entry impossible, and digital platforms that have created an endemic of invasive oversharing, the legal system must adopt a solution in the best interest of the public. As this Note urges, there must be a federal right of action to enforce medical privacy in a sociopolitical environment where other solutions do not suffice. This solution finds support in the legislative intent and history of the existing schema, the novel risks created by recent US Supreme Court decisions combined with the inadequacy of common law approaches, and the values held in both the foundational documents of medical privacy and general ideologies of the United States.
An Epidemic in Enforceability: A Growing Need for Individual Autonomy in Health Care Data-Privacy Protection in an Era of Digital Tracking,
25 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol25/iss4/3