Sixth Court of Appeals....11/1

What is taking place now is the consideration of this case as well as the possible ramifications. While I would like to feel that this is exclusively based on the situation at hand, the legal system does not operate in a vacuum. One has to consider the worst case scenario that might transpire under any ruling.

The easy decision would be that of tossing out the case because my lawyer has no standing in the court. (John Does are in somewhat of a quandary, as well as the representation of such in Texas.) A harder decision is whether the judge's disclosure order can stand review.

Should it stand, it makes a mockery of the Cable Communications Act, and any semblance of privacy. Virtually anything that you regard as private can be disclosed on the basis of a civil suit, with out any proof. That's what the Essent lawyer argued.

But, should a far more over-the-top anonymous blog be allowed free rein without fear of repercussion? Legislation should be enacted to plug the hole.

It comes down to the immediate rights of the individual, and the possible distress placed in a worst case senario.

There is national attention being devoted to this case.

Right Click on Case 06-07-00123-CV, and select open in new tab or window depending on your version of Internet Explorer. Users of Macs, Linux, and Firefox are on your own.

Suddenlink Pipes Up....11/6

Received this as a comment, thought it deserved a top billing:

I apologize for the anonymous label. I don't have a Blogger account for work purposes.

In short, I’m with Suddenlink. Please don’t be alarmed by that: I’m friendly (at least I try to be).

I just wanted to drop a comment in here to try and set the record straight. Our company has spent (and continues to spend) time and money to protect this blogger’s interests. For instance, early on – when we were first ordered by the court to disclose the identity of the blogger – we informed the court that, before any disclosure could be made, the law required that the blogger be notified and have an opportunity to object.

Our bottomline position is to protect our customers’ interests while also complying with the law, in this case, the court’s final order. Net: We’re in a tough position, too, and simply trying to do the right thing. I hope that counts for something.

Pete Abel
Vice President, Community Relations
Suddenlink Communications
pete.abel@suddenlink.com

Pete,
My heartburn is that Suddenlink has not filed any objections, especially early on, despite there being no actual Texas legislation requiring the company to turn over records except in criminal matters.

Most of what has been cited has been out of state, because of that simple reason.

And, you don't need a blogger account. Click other and fill in whatever you wish.

I know you have had a legal presence at the proceedings. My contention is that your company should be the ones petitioning the Writ, instead of me. Rather than that, an agreement with Essent was reached for a disclosure. Had I not retained James, some very bad law might have been written from the bench, and had a precedent....frank

Note: Was looking for a "Pipes Up" tie in and ran into this accidentally. Crossroads seemed fitting....frank

Something to Ponder....10/24

One of the areas that we forget to take into account when we transmit records is the fax. Merely stating that "if you weren't supposed to get the fax, you should destroy it" doesn't meet HIPAA standards of PHI protection.

Who is responsible for any breach? The sender.

Received a comment about the circumstances involving the North Campus patient that PRMC accused me of violating HIPAA about. Then I realized: The only way someone could identify the patient was if they had been given information by the family. Or if someone had access to the PHI. I still don't know the patient's name, nor do I want to.

And, yes, it came as an anonymous comment.

Tomorrow, oral arguments will be given in Texarkana as to forcing Suddenlink to disclose my identity. That is all it is for. It has no bearing on the accusations that PRMC has, it only says that the court can or cannot compel the internet provider to disclose without proof of an actual offense, merely by accusation.

Should the court rule in my favor, Essent still has the option of attempting to prove their accusations to a sufficient standard for disclosure. The bar will just have been raised a bit higher. And, rather than making an end run around the system, the means and the goal will be in their proper order.

Is this over? Probably not.

This Week in Brief....10/22

The big issue is the appeal's oral arguments in Texarkana next Wednesday. Hopefully we'll have a definitive view of the subject of privacy in Texas.

I had a commenter that was doing a fair amount of threats, name calling, and bad grammar. So, I made a point of tracking the IPs he used (I can download a report, time sequenced, so I matched the times with the comments. I deleted all the other listings, since that would give the data to Essent, should they win.) The only one they'll have a record of is their stooge. Like I do.

Hal Andrews, former Senior Vice President of Development for Essent (fired by Hud) was made CEO of Data Advantage Corp. Just indicates that being fired from Essent is not one of the worst things that can happen. Actually, it might be the best.....

The second PRMC IT person suspected of being me was fired. Kevin probably didn't want to stay anyway, since Race was sold. Christus ought to pick him up, knowing their system as well as he does. Actually, this is a perfect way of getting rid of an IT person that might be superfluous, since the consolidated data center was created, rather than paying benefits. Even the RIF policy wouldn't have cut those.

We found out that a community can take back its healthcare with Bonham's announcement. And, Hud still thinks that PRMC is a $100M proposition. Too bad no one else does....

Andrews to head Data Advantage as CEO....10/17

Hal Andrews has been named chief executive officer of Data Advantage Corp., the company announced.

Andrews, 40, served previously as senior vice president of corporate development of Irvine, Calif.-based Cogent Healthcare, which manages hospitalist programs in healthcare facilities. He has a law degree from the University of Tennessee College of Law, Knoxville, and a bachelor's degree from Southern Methodist University, Dallas.

Data Advantage, Louisville, provides healthcare information services to more than 500 hospitals and healthcare facilities across the country. -- by Jean DerGurahian/ HITS staff writer

Nice to know that there is life after Essent.....

Twelve local investors to buy Bonham hospital....10/17

From a comment:

By Vicki Graves

BONHAM — Twelve local doctors and investors recently took on the venture to acquire Red River Regional Hospital and it will be locally owned and operated.

Their $3.2 million offer was accepted Thursday by Attentus Healthcare of Nashville, Tennessee, CEO Dave Conejo said Friday. Officials at Attentus Healthcare couldn’t be reached Friday for comment. Hospital officials now move toward “doing the due diligence” and getting the loan completed. Their goal is to have that done by year’s end.

The majority of involvement is from area physicians. Now, they just have to do the work that will consummate the transaction, Conejo said.

The closing process will involve getting the property inspected, having a title search done and making sure there are no problems.

All contributions are held in an escrow account at Bonham State Bank.

When the local investors take ownership, they said they will completely remodel the emergency room and all patient rooms.

“The way the hospital is set up, we decided not to try to squeeze two patients into one room,” Conejo said. “When this hospital was built 38 years ago, two patients were kind of tight in those rooms, so we decided to make them all private.”

Patient rooms also will be equipped with comfortable recliners for family members who want stay at the hospital with their loved ones.

The enterprise began when the idea came up just two months ago.

“We’ve got a lot of people that are really getting behind this,” Conejo said.

The group doesn’t have all the money yet but has pledges lined up for a large portion of it and is confident that by month’s end, the rest will be in. All contributions and investors are welcome, he added.

One has to wonder, why the local docs haven't joined forces with other local moneymen to regain control of PRMC from Essent.....or is the price too high?

Now, my take: Interesting that I was being taunted by one of the Essent hanger-ons, and he had the following to say:

Like I said in my earlier note to you, since you are so good at hospital management, you should go raise some buckaroos and buy the hospital that Community Health ditched in Bonham. Why I betcha as smart as you are, you could jes' suck Paris Regional in no time flat. In fact, I bet you could bring Essent to its knees.

He might actually be right. Clarksville has seen an increase in utilization, as had Bonham. With the troubles we've had here, it would appear that some shrewd investors saw an opportunity to not only take more control of their destiny, but to leverage an advantage out of Essent’s troubles. It isn't the big threats, it's the chipping away of the healthcare dominance that Paris once had. Essent has provided the opportunity, and now it's being taken advantage of. Hopefully they do more “due diligence” than Essent did.

The shame of it is, by the time Essent is forced to sell, there might not be anything that is worth buying.... I heard that the taunt came from a lawyer...maybe he should be advising his clients, as prophetic as he is, rather than me!

Analysis of the Court....10/19

I was flipping through the Googled hits, and happened across the "Citizen Media Law Project":

The Citizen Media Law Project (CMLP) is jointly affiliated with Harvard Law School’s Berkman Center for Internet and Society, a research center founded to explore cyberspace, share in its study, and help pioneer its development, and the Center for Citizen Media, an initiative to enhance and expand grassroots media.

What they had to say about the case was interesting, to say the least, and may help on the 24th, when arguments are presented:

Not surprisingly, Judge McDowell's September 14 letter ruling in the Essent case makes a muddle of all this. First of all, it is bizarrely formatted -- the legal analysis is contained in two paragraphs that are italicized and indented from the rest of the letter, giving the impression that these paragraphs are quoted material, but without any indication of their source. Some independent researched turned up the following observations:

The first paragraph comes almost verbatim from Polito v. AOL Time Warner, Inc., 2004 WL 3768897, at *5 (Jan. 28, 2004), a case involving a subpoena to uncover the identities of anonymous AOL subscribers who allegedly sent the plaintiff harassing e-mail messages. The language that Judge McDowell quotes from Polito, however, relates exclusively to another case, In re Subpoena Duces Tecum to America Online, Inc. (noted above). Specifically, Judge McDowell appears to be invoking the standard applied by that court -- namely, that "the pleadings or evidence" satisfy the court "that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction where suit was filed." In re Subpoena Duces Tecum to America Online, 2000 WL 1210372, at *8. In that case, the court considered evidence outside the plaintiff's complaint, but it did not make clear whether that was required by its standard.

The second paragraph comes verbatim from Alvis Coatings, Inc. v. Does, 2004 WL 2904405, at *3 (W.D.N.C. Dec. 2, 2004), a case which applied an especially weak version of the "prima facie" standard. There, the court was content that the plaintiff had "averred that the statements are both false and damaging to the Plaintiff's trademark and to its business generally." Id. at 4.

McDowell's letter never explains which standard he is choosing to apply -- Polito, In re Subpoena Duces Tecum, Alvis -- they're all different standards, especially if you look at them closely. Worse, McDowell never even tries to apply the (as yet unknown) standard to the facts of the case. The letter ruling says only:

After considering the above [i.e., the two paragraphs taken nearly verbatim from different decisions], the Court hereby concludes that good cause has been shown and the burden by the plaintiff has been met to meet the requirements of the exceptions to the [Cable] Communication[s] Act to grant the request by Plaintiff for the Internet service provider to furnish the name and address of the subscriber.

Apparently, Judge McDowell believes that no evidence to support Essent's claim is required. That is bad enough, but it is a debatable proposition under the case law. He apparently also believes that no analysis of the allegations in the complaint for facial sufficiency is required. Whatever the standard, this is surely wrong.

Blogger to remain unknown for now....10/12

For an update:

By Bill Hankins
The Paris News

Published October 10, 2007
TEXARKANA — The identity of an unknown blogger named in the Essent-Paris Regional Medical Center lawsuit will not be revealed today.

The 6th Court of Appeals in Texarkana Tuesday issued a stay of 62nd District Court Judge Scott McDowell’s order for internet service provider SuddenLink to reveal the identity to the court by 10 a.m. today.

Attorney James Rodgers of the Moore Law Firm in Paris said the Court of Appeals granted a stay of the disclosure until Wednesday, Oct. 24. At that time oral arguments from both sides are to be heard to determine whether the information should be revealed.

Rodgers Monday filed a writ of mandamus asking the court to look at the disclosure issue.

The hospital filed the lawsuit June 19, accusing the unknown blogger of wrongful conduct in publishing “false and misleading” information detrimental to the hospital and asking he be silenced.

In its lawsuit, the hospital alleged some of the information on the blog was obtained illegally.

It said the blogger “published statements with malice, with a reckless disregard for truth or falsity and with negligence in failing to ascertain the truth of the statements.”

McDowell ordered SuddenLink to reveal the name of the blogger, but SuddenLink said the blogger must first be notified and given the right to lodge a protest to the disclosure.

Rodgers countered, telling the court the Cable Communications Act prevents such disclosure.

McDowell, citing a Circuit Court of Virginia case, then said the identity could be revealed if evidence satisfies the court the party requesting it has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction where the suit was filed.

Rodgers then filed the writ of mandamus asking the appeals court to intercede. It issued the stay order Tuesday.

Intentions....10/10

The intent of the action is solely held by the individual 'acting'. In my case, Essent ascribes my motivations as quite low, while many readers place them on a pedestal. The truth is somewhere in between. The comment about Publius took me back to my 7th grade Civics class, so very long ago.

"The consciousness of good intentions disdains ambiguity. I shall not, however, multiply professions on this head. My motives must remain in the depository of my own breast. My arguments will be open to all, and may be judged of by all. They shall at least be offered in a spirit which will not disgrace the cause of truth." -'Publius' The Federalist No. 1

Hamilton probably wrote the bulk of the Federalist Papers, but the contributions of John Jay and James Madison are far from forgotten. Could you imagine those authors having the power of blogs at their disposal? (A sidebar: Where is an Iraqi Federalist blog? Probably is one, and the topic is better left for a different blog.)


Has the blog been completely altruistic? Probably not, very few things are. I just see too many things that there should be awareness of, hidden from the public consciousness. We base so much of healthcare on trust. When that trust is violated, we all suffer.


Essent would probably say that their trust was violated, but the truth is, in healthcare we have so many barriers to knowledge of what really happens. There really is no 'loyal opposition' in healthcare. Government is the closest thing we have to that, as an advocate.

What happens in a socialized medicine senerio? Would I be facing a Federal suit? And who then is left to monitor?

A long while ago, I received an email from a blogger in the Netherlands, saying that he was fascinated by the blog, because in his country there wasn't such a thing (to this level). He wanted to follow-up with questions and an article, and suddenly nothing. Maybe, in a socialized medicine country, that's one stone you don't kick over.

It is ironic that the reason Essent was able to track back on me is because I wanted to be accurate in what I wrote--by using their own words. Posted at their own websites. I just did it a bit less covertly than I should have.

It's Hard To Remember....10/7

...that the objective was to drain the swamp when you are up to your butt in alligators....

MY problems aren't the problem, merely the symptom. (Lord, that took a bit to say it.) The manifestation of Essent's attitude first impacted staff, then patients, and now the community. Obviously, I was not the first--Holly was. And there are plenty of examples of the staff's treatment.

But what about patients? Rumor has it that Essent is sweating this last incident, and that a case is being talked around.

Have you noticed that several healthcare corporations have been purchased in the last year...and we know that Essent is being shopped out. So why hasn't it been bought?

No matter what you may think, it isn't the blog. Again, merely the symptom, not the cause.

Merrimack Valley Hospital $-1,498,033
Nashoba Valley Medical Center $860,296
Sharon Hospital $1,467,558
Southwest Regional Medical Center$-212,615
Paris Regional Medical Center $288,275*

So, investors have a ROI of less than a million on what kind of investment? Sounds like the Out-Patient Surgical Center here.... You be the judge....

*figures from AHD.com

More From The Blogosphere....10/9

More from the blogosphere:

Picking Up That Gauntlet Again: An Anonymous Medical Blogger Is Sued
I've alluded to this case before (hat tip to Kevin). And it was so disturbing to me, I linked the post as a Housecall on my sidebar.

An anonymous medical blogger is being raked through the coals in court for saying less-than-nice things about a hospital in Paris, Texas. A Texas judge (who seems not to have any real grasp of HIPAA at all) is threatening to sign an order that would "out" him.

I feel his pain. And now I offer you his blog (courtesy of Pure Pedantry). It will be hereafter linked in the sidebar. Like Flea (even though he isn't there anymore).

It was just a matter of time before a corporate lawyer tried to use HIPAA as a weapon to shut people up.

*Note to the hospital CEO's and corporate healthcare lawyers: In this day and Internet age, suing someone for speaking out on the nasty things going on behind the scenes at your hospital ALWAYS works to get your hospital less scrutiny.

Here's a suggestion: Cleaning up you act is usually the better course than shooting the messengers.

Some the messengers you try to pummel don't' just roll over. They fight back.

The hospital (owned by a larger conglomerate) in this case says, "We understand and respect the blogger and general public's right to voice their opinions about PRMC and welcome constructive criticism . . . However, the method used by the defendants is wholly unacceptable. It is a cowardly infringement on the confidentiality rights of PRMC patients and an unwarranted attack on the reputation of the hospital."


Now THAT is just a load of hooey! Thus, my comment at Kevin's:

I would submit that HIPAA, like the "blanket immunity" offered in medical peer review, is tailor-made for cowards who want to cover their ugly messes up.

The LAST thing this lawsuit is about is "protecting" patients.

"We welcome constructive criticism."

I'd like some of what you're smoking if you really believe that.

I've yet to completely digest the blog, but thumbing through the comments tonight (much of it very entertaining given my own dance with confidentiality and privacy issues . . . and very expository of just how convoluted HIPAA can be), it's obvious that somebody is smoking some really good something. This particular profundity (offered in a mind-bending comment that I think ultimately supported the anonymous blogger) caught my eye.

"Privacy trumps truth".

Huh? On what planet?

The last time I talked with a lawyer, the truth is absolute protection in a court of law. It doesn't get "trumped".

Except when people lie . . . and get away with it because the state (in my case, North Carolina) does not care.

The anonymous defender of free speech (a right that, unlike the "right to privacy", is actually specifically addressed in the US Constitution) says this: "If the blog is squashed by a lawsuit, does that really reassure the public? All it shows is that a large corporation can step on an individual."

Don't I know it, Bub. You would think the guy lives in Asheboro, North Carolina.

Posted by DR. MARY JOHNSON at 1:59 AM

The picture is my addition...frank.

Point Taken....10/5

A commenter on the Harvard Law blog brought up a point, however I don't think the court would even consider it:

September 23, 2007 at 4:42 am
Crosbie Fitch
I’m not sure anyone can be defamed by an anonymous and unknown person.

For harm to be caused by falsehood requires the falsehood to have some weight, i.e. someone’s reputation behind it.

An anonymous person has no reputation. Their arguments or assertions stand entirely upon their intrinsic merit.

Look at it the other way around: an anonymous person cannot be defamed no matter the reputation of those defaming them (because the anonymous person has no reputation).

Similarly, one could observe that a child’s defamation has far less weight than an adult’s.

Defamation is inherently inegalitarian, and rightly so.

However, pen names have been used for centuries--in some cases to disassociate the ideas from the source, rather than the other way around. In either case, the ideas have to be able to stand on their own.

I was watching 60 Minutes a while ago, and Clarence Thomas made two points that hit home: "It is always worth it to stand on principle." And, "Wrong is wrong, even if it's over a penny." The principle is the worth of the staff and of the patients. The new RIF policy is wrong. Employees are required to give notice, but the hospital doesn't? Truly amazing that no one had a copy of it prior to the sale of the health centers. The policy mysteriously comes out after the sale, but dated prior to it. You be the judge....

Speaking of which, the judge is to sign the new disclosure order Monday. Obviously we're continuing to fight it.