Shook Obtains Impactful BIPA Ruling from Illinois Supreme Court

After a lengthy appeal process, the Illinois Supreme Court held unanimously that the Illinois Biometric Information Privacy Act’s health care exclusion applies to the biometric information of health care workers in addition to patients. After a string of pro-plaintiff rulings from that Court over the last few years, this is the first ruling by the Illinois Supreme Court limiting the scope of the BIPA statute. 
 
The plaintiffs in Mosby v. The Ingalls Memorial Hospital are registered nurses who accessed medication-dispensing systems by scanning their fingers, allegedly in violation of BIPA. The case’s lengthy appellate history concluded November 30, 2023, with the Illinois Supreme Court answering two certified questions in the affirmative. The exclusion in BIPA Section 10 for “information collected, used, or stored for health care treatment, payment, or operations under [HIPAA]” applies to the biometric information of health care workers. And, finger-scan information collected by a health care provider from its employees falls within the exclusion as well when the information is used for health care treatment, payment, or operations as those terms are defined in HIPAA.

The opinion may affect dozens of pending BIPA class actions against health care entities and could lead to the dismissal of many pending class actions relating to medication management technology, like the technology at issue in Mosby. 

The American Lawyer Litigation Daily selected the win as a Runner-Up for “Litigators of the Week.”

The Shook team includes Partner and Biometric Privacy Practice Chair Matt Wolfe, Partner Bill Northrip and Associate Kathleen Ryan.

The case is Mosby v. The Ingalls Memorial Hospital, No. 129081 2023 IL (November 30, 2023).