Wednesday, October 03, 2007

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.

20 comments:

Anonymous said...

Amen, Dr M. J.!

The hospital wants the names not only to shut up the blogger, but to find and fire any PRMC employees who may have posted on the blogsite. It's not about HIPAA or defamiation. It's about revenge.
Plain and simple.

Anonymous said...

wouldn't the hospital be opening themselves up for many,many lawsuits for violating "freedom of speech"? just curious.

DR. MARY JOHNSON said...

Thanks for the link. I'll follow along with great interest.

BTW, I spell it "blogosphere". And thanks for pointing out the typo on my profile! LOL! It's been there forever.

You fight the good fight. Both HIPAA and HCQIA (the Healthcare Quality Improvement Act of 1986) left quite a few black holes for doctors and patients and ethical administrators to fall through. Both acts assume good faith and nobility when (where money is involved) human nature is almost always going to deliver the opposite.

It's a good question about free speech - which, as I pointed out, is SPECIFICALLY identified in the Constitution as a right we all have . . . as opposed to the right to privacy . . . which was extrapolated.

And I'm sorry, nothing "trumps" truth.

Crosbie Fitch said...

When I say "Privacy trumps truth" I mean that you don't have a right to violate someone's privacy simply in pursuit of truth, e.g. to establish whether a statement is true or false.

You need a higher purpose than pursuit/protection of truth to warrant a breach of privacy, such as arbitration over privacy (property), or protection of life.

Anonymous said...

The hospital wants the names not only to shut up the blogger, but to find and fire any PRMC employees who may have posted on the blogsite.

The problem is Texas is what is known as an "at will" state. In other words, they can fire you and not have to have a reason for doing so. Unless of course, you're under contract with them.

Anonymous said...

Now we know where the former Iraqi Information Minister wound up after Saddam was overthrown- he works for Essent now.

"There is nothing wrong with our fine facility. We are providing first-rate healthcare, and will continue to do so, God willing....."

I'm glad to know there is support out there in the blogosphere, and remember, Essent can't shut all of them up. Just because Paris has a judge whose knowledge of HIPAA could be poured into a thimble & still not cover the bottom, and Essent has a lawyer taking advantage of this judge's ignorance, doesn't mean all the blogs will suffer from such ignorance and manipulation of same.

Hmm.....wonder if the judge may have me in his crosshairs for calling him ignorant?

fac_p said...

MJ,
I've seen it spelled both ways, just happened to use this one. However, yours has a historical track, so I think I will change it. t4t

frank

Anonymous said...

The right to privacy is a logical extension of the government being prohibited from unwarranted searches and seizures.......

64.190.251.70 said...

Well, lo and behold Frank-aroo, at 12:31 you printed my comment RE the right to privacy. That makes me happy, but then again I knew you would print that one.

It was perfectly in line with the subject, and I had no problem with it. And what's your IP address?...frank

elvez1975 said...

Not to split hairs here, but because of Griswold v. Connecticut and not the Constitution's literal text, do we have a "right" to privacy. The majority opinion in that case relied on the "penumbras" (read shadows or implications) of the Bill of Rights. None of the 4th amendment is actually cited, but the concurring (read: nonbinding) opinions rely on the 9th and 14th (due process). I would agree that if we are talking about the penumbras, the 4th should come into play. Nevertheless, it is a shakier basis to claim a right, but still rather firmly esconced in federal law. Most lawyers accept that its part of our "hall" of rights , but there are plenty of folks who are furious it exists.

DR. MARY JOHNSON said...

Anon 12:31, I guess my problem is that I don't believe the "extension" (translation: currently fashionable interpretation) of rights guaranteed in the Fourth Amendment trumps the specifically stated right we're all afforded in Number One.

Anon 6:24, My post yesterday addresses my own experience with "at will" employment as a "valued physician employee" (as well as that of a local police chief) in North Carolina.

Crossbie, respectfully, we disagree. Truth trumps.

Someone's "right" to privacy (excepting, of course, the right to not self-incriminate . . . i.e. to keep your mouth shut) does NOT justify the perpetuation of a falsehood.

Truth is supposedly the foundation of our legal system (not that my experience in our legal system thus far would bear that out).

There is no higher purpose.

Crosbie Fitch said...

The right to privacy does not perpetuate a falsehood. Everyone and anyone is encouraged to take all efforts to pursue the truth in all things (as long as everyone's rights are respected).

However, this pursuit does not by itself warrant breaking someone's door down or unmasking them, simply because you doubt their veracity, don't like what they have to say, or someone's reputation would be damaged if what they said were true despite circumstantial evidence to the contrary.

If an anonymous or pseudonymous author is making public statements about a well known person they can only stand on their intrinsic merit precisely because the public recognise that anonymity confers no other merit, because an anonymous person has little to lose (proportional to the security of their anonymity).

When it comes to corporations, these aren't even people. A corporation should not be able to prosecute an individual (anonymous or not) for defamation against the corporation. Why not? Because a corporation does not have a human life at stake, merely an identity.

See: ACACIA.

fac_p said...

RE: Mary Johnson's comment that there is no higer purpose than truth: Who would disagree with that? No one. The fact of the matter is "truth" is rarely absolute in that same way one's right to free speech, religion, etc and other "inalienable" rights are not absolute.

Truth is too often confused with one's point of view or one's judgment. For example, sucicide bombers, abortion clinic bombers and, in times past, the KKK believed "truth" was on their side.

Truth is clearly related to justice. Most matters that come before our government in general and our courts in particular are resolved by a balancing of "truths". In this case, the lawsuit seeks the proper balance between patient confidentiality on the one hand and freedom of speech on the other. It is a "truth" that a patient's name was disclosed on this site. It is also a "truth" that a blog has wide ranging "rights" of speech. The outcome of the lawsuit will be the best effort to balance those two. One side or the other will not like the outcome.

If truth were absolutely determinable we would have very little disagreements. We often think we know the "truth" because we view the world from our own unique point of view and rarely seek to see the world (or a set of facts) from an alternative point of view.

Name was posted? By inference, maybe, and by the patient's son, wasn't it? I suppose that, if he was a covered entity, it could have been...but that would be stretching things a bit, wouldn't it? Implied consent. Gets confusing, doesn't it? And then, only if he were involved with her healthcare.

If not, then any disclosure to him, without her permission, would have been a breach by the employee making the disclosure....frank

Did a quick search and he mentioned that he was a former employee...and had relatively good things to say....f

DR. MARY JOHNSON said...

Crossbie, the Founders had no computers and no Internet. They hid their secrets in lockboxes and desks. Thus the Fourth protects you from someone breaking down your door without a warrant.

I submit that the modern extensions and extrapolations of this right often defy common sense, fair play, due process and public safety.

I also submit that the "right" to privacy perpetuates falsehoods every day. From HCQIA to HIPAA, we've gone "privacy" crazy in recent years. Bad things happen when the lid's clamped down shut and there's no light and no air. And the climate of fear it generates does nothing for the truth.

In this environment, where everydamnedthing is secret, patients are certainly not being "protected" . . . neither are the people who take care of (and advocate for) them.

Speaking as someone who was malicously "prosecuted" (unsccessfully) by a corporation for telling the truth to the government she served (in a confidential forum - and only after the government asked) . . . as someone who fought that lawsuit off all by her lonesome (and was defrauded in the end by liars who have yet to be held accountable) . . . I can tell you that corporations will do whatever they think they can get away with.

And the government will look the other way until it can't anymore.

But you know what? In the end the truth (which often IS very easy to determine . . . you just have to make the effort . . . and not let people dodge & obfuscate behind privacy laws) was ABSOLUTE protection in a court of law.

Crosbie Fitch said...

Mary,

Bear in mind that I'm talking about the human right to privacy*, not the extremes nefarious corporations go to to prevent internal affairs becoming public knowledge.

I'm also talking from an ethical perspective, not a legal one.

A corporation is not human and does not have a human right. It's members may well be human, and they of course retain their rights, which remain unaffected by dint of collaboration.

When one person confides with another concerning a private matter, the other person is not automatically bound to secrecy.

The right to privacy cannot be used to subjugate. It is a boundary, not a pair of manacles.

If you are privy to a secret with another with their consent, then you both possess the secret. You both have a right to privacy, so you both have a right to decide whether to make it public or not (without needing agreement). One could say that the secret was mutually public between you. Continued secrecy relies upon a shared interest in secrecy.

Thus when you become a member of a corporation you become privy to its secrets, such as are communicated to you (in confidence that you will preserve their secrecy).

This does not constrain your right to privacy, which permits you to make public anything you have been made privy to.

As a consequence, your incorporated colleagues may well terminate your membership, and your reputation may be affected, but no separate punishment can be applied against you.

You can of course agree to remain silent, and can be rewarded if you maintain silence, but you cannot contract to it. Your right to privacy is inalienable.

Corporations can contract to non-disclosure agreements - because they aren't human. However, corporations still have to respect the right to privacy of human beings, whether employees, patients, or members of the public.

So, yes Mary, I sympathise. Corporations are effectively psychopaths who only adopt of a veneer of humanity if it's in their shareholders' interest. Nevertheless, despite the abuses corporations have committed in the name of privacy or commercial secrecy, the human right to privacy must trump the human right to truth. Otherwise, the very same corporations will not hesitate in reinventing their own Spanish inquisition and asserting a right to seize your secrets in pursuit of truth concerning themelves.

And don't forget, we can only pursue truth, we can never know or apprehend it. Though, we can of course know falsehood and catch lies. The right to truth is a constraint upon our liberty to impair truth (in the public domain).


* The right to privacy, which includes the right to publish, constrains the liberty and pursuit of truth by all other persons, except when necessary to arbitrate over privacy or protect life.

DR. MARY JOHNSON said...

Crosbie, due respect, the issues here (that threaten to bury Frank if someone doesn't wake up and read the Constitution) are legal ones.

In a court of law - which is where this case is right now - truth trumps - as should the rights that were specifically spelled out (as opposed to exptrapolated) by the Founders.

Anonymous said...

Good doctor Mary J. What truth SPECIFICALLY is spelled out in the Constitution that ole' Frank-aroo is getting screwed by? Free speech? You know there are limits there....no one has the right to yell fire in a crowded theater. Moreover, my guess is you would react in a very similar fashion that Esssent is, if some yea- hooo was posting rumor and innuendo about your practice. How do you know if Frank and all of his little Jonestown Kook...oops Kool Aid drinkers are telling the truth?

How do you know the "truth" is being told here?

Anonymous said...

Truth--a subjective way of looking at facts which conform to a held view.

The FACTS should be evident: If Frank is a covered entity, and released personal information that he aquired in the course of his employment, he should be prosecuted--by the federal government, not by Essent. They have gone to extreme lengths to put the fear of God in everyone, and should have no trouble proving so.

But, little seems to meet the criteria. Maybe it's their truth!

fac_p said...

5:01, or Matt,

"How do you know the "truth" is being told here?"

Most is easy to verify.

Anonymous said...

5:01--

Rumor and innuendo are just that....it's not fact, therefore not defamiation. Rumors abound everywhere. Ask Brittany Spears or Paris Hilton! The only time those ladies can sue a media item is if it is passed off as TRUTH, not RUMOR!