Brach Eichler Files Suit Against Aetna, Inc. For Breach Of Privacy Related To Patient HIV-Medication Status

December 17, 2018

Brach Eichler LLC has filed a law suit against health insurer Aetna, Inc. and others, alleging breach of privacy relating to mailings the company sent as part of the settlement of previous privacy-based lawsuits against the insurer relating to patient HIV-medication status. Members Lani M. Dornfeld, Esq. and Edward P. Capozzi, Esq. and Associate Dennis Shlionsky, Esq. represent the plaintiffs in the action.

The suit was submitted to the Superior Court of New Jersey, Essex County, last week. Aetna’s privacy breach is believed to have involved the private HIV medication information of more than 12,000 Aetna insureds. The New Jersey suit, John Smith and Richard Becker (Fictitious Designations) vs. Aetna, Inc.; Aetna Health Inc.; Aetna Specialty Pharmacy, LLC; ABC Corporation (1-10) and Doe Vendor, may be the first suit related to the Aetna breach to be filed in the State of New Jersey.

The New Jersey suit filed by Brach Eichler alleges violation of the New Jersey AIDS Assistance Act, as well as invasion of privacy and negligence on the part of Aetna and the other defendants. (ABC Corporation is a class of fictitiously named individuals or entities responsible for the disclosure and/or presentation of private medical information regarding the plaintiffs, and Doe Vendor is a class of fictitiously named individuals and/or entities representing the unidentified vendor that Aetna used to send its mailing.) The complaint alleges the case is about “Aetna’s repeated failure to respect the privacy rights of people who are taking HIV medications.”

Dornfeld, a member in Brach Eichler’s health law practice who devotes a significant portion of her practice to HIPAA and privacy-related matters, said, “The allegations demonstrate an egregious violation of the New Jersey AIDS Assistance Act, as well as extreme negligence on the part of the defendants. The AIDS Assistance Act was passed by the New Jersey legislature to place strict privacy safeguards around HIV and HIV-related information in order to protect individuals from the very type of harm and stigmatism suffered by these plaintiffs.” Dornfeld noted that the act provides for punitive damages, which the plaintiffs are seeking in this case.

Pursuant to the complaint, the background to the suit relates to two separate class actions against Aetna in 2014 and 2015 alleging Aetna jeopardized the privacy of people taking HIV medications by requiring its insureds to receive their HIV medications through the mail and not allowing them to pick up their medications in-person at their chosen pharmacy. Those cases are Doe v. Aetna, Inc., No. 14-cv-2986 (S.D.Cal) and Doe v. Coventry Health Care, Inc., No 15-cv-62685 (S.D. Fla.). The Doe lawsuits were never certified as class actions, but rather were settled by Aetna and the individual plaintiffs in those cases. As a condition of those individual settlements and in addition to payment of damages, Aetna agreed to send notice to its insureds who had been required to mail-order their HIV medications, informing them they were no longer required to do so.

In sending out the notices, which occurred in or about July 2017, the Brach Eichler complaint alleges that “Aetna again failed to recognize the dangers associated with sending information about HIV medications through the mail.” Rather than sending the notices in an opaque envelope, the envelope used for the notices contained a large window, covering almost half of the front of the envelope, in which “instructions about how individuals could obtain their HIV medications were visible from the outside of the envelope.”

According to Capozzi, who chairs Brach Eichler’s personal injury practice, “The plaintiffs in the New Jersey action allege, among other things, severe and disabling emotional distress and insult, embarrassment, humiliation, increased stress and anxiety.”

In Pennsylvania, the AIDS Law Project of Pennsylvania and Berger & Montague filed a class action on August 28th of this year, in the U.S. District Court for the Eastern District of Pennsylvania. Almost simultaneously with Brach Eichler’s filing, a California man filed suit against Aetna in California stemming from Aetna’s privacy breach and alleging Aetna violated state and federal privacy laws.