Monday, October 01, 2007

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.


Anonymous said...

I'm not an employee of the hospital, but I watch this blog fairly regularly. I've been wondering this for a while now... and I apologize in advance if it has been brought up before but I missed it.

Let’s say I’m a former patient of the hospital and that some information that violates my HIPPA rights was posted on this blog, which the hospital claims to have happened. Could I then assume that the HIPPA breach was the hospital’s fault? And if I could then wouldn’t I have a great case against the hospital for the HIPPA violation, thanks to the hospital’s actions in this case? Isn’t Essent trying to tell me their employees violated my rights?

Still wondering.

fac_p said...

You would have cause against both the hospital and the individual if identified. HHS might pursue it (if it was a large enough breach, large numbers of records), and you could as well. To my understanding, it actually occurs when the PHI leaves the posession of the 'covered entity'.

In general terms, if your nurse and physician were discussing your case and were overheard, that's a breach. If your chart was left out and read by someone not having anything to do with your case--that's a breach. If your record is pulled up on a computer, and left there--and someone reads it that isn't part of your care--that's a breach. And, if someone involved in your care was to post information with PHI--that would be a breach.

All but the last were unintentional, and the bulk of responsibility would be against the hospital. The last would be intentional, and the individual would be faulted heavily.

Celeberties have a much higher risk of that kind of disclosure. But, unless permission is given (written, or orally and witnessed), going into your family's records, or the neighbor's, or an ex-spouse's is a clear violation. There are some exceptions, but not many, and most still require the paperwork prior to the records being made available.

Climb on, anyone, if I wasn't in the ballpark.

What the undersecretary of HHS has said in interviews, is that the application is at times faulty, interfering with the transfer of information necessary to the care of individuals. Numerous examples are available on the 'net.

Anonymous said...

Couple of things. 1) If in fact there was a HIPAA violation, wouldn't the former patient who was harmed have to claim harm, and then bring suit? Are HIPAA statutes designed to protect the patient, and not the hospital? And if so, how can Essent claim harm?

2) If as you say, "You would have cause against both the hospital and the individual if identified.", if Essent is sueing you, and you are an employee of Essent, isn't Essent, in effect sueing itself? You, if an employee of Essent, acts at whatever level, as an agent of the hospital. It is the hospital's responsibility to protect a patient's medical information. If you have divulged said information, then the hospital has failed, and is now itself liable. So shouldn't Hud be bringing suit against PRMC?

Anonymous said...

Frank, I recently took an annual HIPAA course at my hospital, and I went thru it with this case in mind. After finishing the course (and passing, BTW), I can pretty much conclude (and I'm not a lawyer or an employee of HHS), there are no HIPAA violations. I can also conclude the judge has little if no understanding of the HIPAA regs, and Essent's lawyer is using this to his advantage.

Also, I don't see where any employees have violated HIPPA regs, since patient names were not used.

Ignorance and a conniving lawyer vs. the truth, folks.........

Crosbie Fitch said...

Following on from my original point...

If one accepts the argument that defamation is proportional to the reputation of the defamer, then the defamation actually increases if the defamer's identity is forcibly revealed, as this then provides weight to the defamation (where before there was none).

In any case, privacy trumps truth. And only life trumps privacy, which though may be rightly violated in the pursuit of truth when life is at stake, no life is threatened by anonymous defamation.

No matter how egregious the falsehood, anonymous defamation must be presumed without extrinsic merit. Of course, that can still be provided via the reputation of others who express or indicate agreement (and then become liable for defamation).

Revealing the identity of an anonymous defamatory author creates a criminal where none previously existed.

For example, the grafitti "Bush is wicked" incriminates only a defacer of a public wall. There can be no defamation unless someone admits authorship or agreement, and the defamation is then, and only then, proportional to their reputation. It could be a stoned teenager or it could be a prominent political opponent after a few too many whiskies. It could even be a kid promoting the band. It is like Schrodinger's cat. Until the identity of the author (or any supporter) is known, there is no defamation possible. Using forensic detection methods to track down the author not only violates the author's privacy, but if publically revealed then gives weight and meaning to "Bush is wicked" that was previously absent.

And no, anonymously revealing the author's identity wouldn't be right either. That wouldn't be an impotent falsehood, but a potent truth that violates privacy.

Truth doesn't need an author if it is self-evident, but the pursuit of truth for its own sake doesn't sanction the violation of privacy.

So, if we have someone who anonymously publishes material that compromises a hospital patient's privacy, then (assuming this wasn't to protect life) the identity of that publisher can be pursued (for privacy violation) - in order to obtain restitution, reparation, or reformation (as society prefers).

If someone anonymously publishes falsehoods concerning a hospital (and those falsehoods do not harm or jeopardise life), then their identity cannot be pursued beyond their right to privacy. Having no author that will admit to them, the falsehoods are a priori without extrinsic merit - any intrinsic merit makes them less false and thus less defamatory. Moreover, their subject gives them merit by falsely claiming defamation.

Anonymous said...

I don't know who crosbie fitch is, but if I'm one of the lucky 10 to be selected for termination by Essent, I want crosbie at my table.

I like what he says and hope his information is accurate.

This whole thing is a witch hunt to silence those who can't afford decent representation. Lack of responses to this site reflect the terror Essent can inflict. Sad.

Anonymous said...


The thing is, if you were to see a HIPAA violation here on the blogsite (which you won't) it would be up the FEDERAL court to file suit on your behalf. HIPAA is not a CIVIL action. The judge has no jurisdiction on this case.
It's a kangaroo kourt which should shame this county and this state.
This case will not stand up in State Supreme Court.

elvez1975 said...

I completely support your struggle and hope you beat Essent, and I went to much less prestigious school than Harvard, but I'd have to disagree as to whether or not an anonymous person can commit libel or slander.

Take for example, Alexander Hamilton, who wrote The Federalist Papers under the pen name Publius. This publication was popular and widespread and influential enough that I think he could presumably been liable for these torts because his reputation has been established by his writing. True, if he made one post and it was terribly malicious and completely untrue this wouldn't apply, but we are talking about a reputation built on several publications of well-crafted prose(which is a complement to you). This argument might work for some of the anonymous posters on your site, but I don't think it could cover you.

That being said, I firmly believe that with truth as a defense and the high hurdle of actual malice that Essent has to overcome, you should prevail on a Rule 12(b)(6) motion.

Good luck and keep fighting.

fac_p said...

FYI: Rule 12(b)(6)

Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion (6) failure to state a claim upon which relief can be granted.

A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

I clipped down to the reference, but left the link....f

Crosbie Fitch said...

And when did Alexander Hamilton admit to possessing the identity of Publius?

At that point he becomes responsible for Publius's libel (if any) and will assume Publius's nefarious reputation as his own.

Until that point, only Publius suffers opprobrium and a tarnished reputation.

You do not need a body to have a reputation, but an identity.

The body that secretly owns an identity need not be liable for its speech unless it self-evidently violates privacy or endangers life.

Anonymous said...

I'm certain this has already begun, but just in case...

Looking at the map, this site is getting hits from all over the world. It is not inconceiveable that many who are reading it are Suddenlink customers in other parts of the country. If you are a Suddenlink customer, regardless of whether it is here in Paris or anywhere else Suddenlink provides service, call your provider and cite the lawsuit against Frank. Tell them if Suddenlink divulges Franks identity, you will cancel service. Plain and simple. Speak to a supervisor so that the person you talk with understands the gravity of the situation in terms of bottom line for Suddenlinkm, and find out who the manager of the local provider is so you can call them if necessary.

Keep in mind as you decide whether or not you want to do this, if they divulge Franks identity to Essent, they could divulge yours to whomever they wished.