Shorter University data breach lawsuit advances

Oops – found this one sitting in drafts folder. I should have posted it two weeks ago.

Law360 reports:

A Georgia federal judge on Thursday trimmed breach of contract and negligent misrepresentation claims from a proposed putative class action over the theft of student medical data at a state university, but refused to let the school off the hook for its alleged failure to properly secure the stolen files.

The theft was first disclosed in November 2014, and by February 2015, more identity theft victims had come forward. The lawsuit was filed in February.

I’m not surprised that this case is moving forward as standing was not going to be an issue with so many reports of tax refund fraud/identity theft.

This is one of the rare cases in which a university is sued for a data breach that involves medical/health information. That information was held by the university, but it’s not totally clear to me whether the university was covered by HIPAA in this context or FERPA. The student athletes were required to undergo a physical examination by the university’s doctor to be eligible for participation in sports, and they were required to provide medical records from external providers. The university also held records on treatments provided by university physical therapists if the students were injured during the sports activities. Under the circumstances, I’m thinking that these are FERPA records and not HIPAA records, but I could be wrong.  So even though the complaint alleges failure to comply with the standards of data security established by HIPAA and refers to the health records as PHI, I’m really not sure this is a HIPAA situation. That said, the court held that because the university was involved in providing medical care, there was an expectation of confidentiality and the university therefore did have some fiduciary responsibility to the students on that level.

The court also allowed the negligence claim to advance.  Of note, although the university had claimed the stolen records had been secured in a locked office, the complaint alleges that when police investigated, they found that the office had been unlocked and it was not easy to lock due to the door being misaligned.

The theft seems to have resulted in concrete injury to the students.


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