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Patricia O'Connell
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Kirk Nahra Comments on Health Care Breach-Related Lawsuit 

September 22, 2015

Kirk J. Nahra, chair of Wiley Rein’s Privacy Practice and co-chair of the Health Care Practice, was quoted in a September 21 HealthcareInfoSecurity article discussing the lawsuit seeking class action status in the aftermath of a hacker attack on Excellus BlueCross BlueShield that may have exposed the data of its members.

Mr. Nahra explained that even though members’ information may have been compromised, that doesn’t mean they have actually been harmed. “There have been dozens, maybe hundreds of cases across the country holding that the mere potential of something in the future is not sufficient to allege the injury that is required to bring a case,” he said.

While most class action lawsuits prompted by health data breaches have been dismissed by the courts, one exception was a 2013 settlement in a class action lawsuit against insurer AvMed, according to the article. Mr. Nahra said the type of argument used in the AvMed case – that a portion of premiums paid by members should have gone to securing their data – might not hold up in the Excellus complaint, which alleges breach of contract. “It’s not a particularly strong argument,” he said. “Nobody buys health care insurance based on a percentage of their premium going to security.”

To read the full article click here