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Hospital Wants Critical Blogger's Anonymity Ended
rs232 sent in a link to this story about one's right to privacy, which opens: "An unlikely Internet frontier is Paris, Texas, population 26,490, where a defamation lawsuit filed by the local hospital against a critical anonymous blogger is testing the bounds of Internet privacy, First Amendment freedom of speech and whistle-blower rights."
"Or else he'll end up in the hospital!"
"Hello slashdot, please provide me the name of this "anonymous coward" who posted about my mother's sex life and his role in it. I feel as if I've been defamed. What's that now? I can't hear you over all that laughter. Well you will be hearing from my lawyer!"
I keep telling myself I'm not the desperate type.
If he's spewing false information, then libel is libel. He can and should be punished. Just because he's on the intarwebz doesn't mean he has immunity.
On the other hand, if he's telling the truth, the hospital has no case.
I don't see what the big deal is.
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That was one of the reasons that I would previously let doctors post anonymously on carotids.com. Medical systems are huge, reputation-based systems. If a hospital doesn't have a good community name, people will take their personal business elsewhere. So hospitals will sue and sue to protect their reps.
Carotids has not thrived even with anonymous postings because docs are still scared. I still get frequent contacts with people considering posting... however, most never pull the trigger.
Sad.
From reading the FA, it seems like a big part of the hospital's lawsuit is that the blog has been disclosing patient information. In some cases, enough patient information that the patient could be personally identified from the posting. So yes, part of it is your standard 'they are saying bad things about me and I don't like it and I want to know who it is!', but I think part of it is perfectly reasonable-- stop writing about the patients without their consent.
====
Crudely Drawn Games
Can someone file a lawsuit and have your anonymity removed
A judge will have to "judge" whether the statements are libel or not.
IF that is true, then there absolutely needs to be an investigation. I'm all for allowing folks to honestly criticize care and use medical documentation that was authorized by the patient, but getting it without patient authorization?! I would have a problem with the employees that gave it to him. If the blogger is on to something, then he should approach the patients involved and ask them for the information. In this day of litigation, I'm sure most patients would jump on board for the chance of suing for $$$.
I prefer Flambe as apposed flamebait.
I wouldn't want to get sick in Paris Texas but the Holiday Inn restaurant makes the best hamburgers I've ever had. Granted, that was 1970, but I'd give it a shot if I were in the area. If you get sick... well, uh,...
I wonder if the blogger kept his anonymity by dictating his message through a one-way mirror to a woman in a strip joint ?
(In case you are wondering what the hell I am talking about, click here and see the movie; it`s great !)
First Name: George
Middle Initial: L
Last Name: Tirebiter
Name of Blog: LawyersHospital
URL for blog: lawyershospital.blogspot.com
Your email address: napalmoliveXXX@yahoo.com
City: West Gommorah
State: TX
Now, your honour, we also have the IP address, but it was dynamically allocated to an internet cafe in Austin Texas. We asked yahoo for info, and the info came back for the email address:
napalmoliveXXX
First Name: George
Last Name: Tirebiter
Sex: M
Birth date: March 15, 1984
Mother's Maiden Name: Betty Jo Bealovsky"
Secret Question: Why does the porridge bird lay his eggs in the air?
Answer: Crocagator pair, alligator pair - that's they so mean!!!
And the IP address was too a different internet cafe, this one in Dallas."
So, how much do you know about him? NOTHING!!!!
You'd think someone at the hospital would know this is a fools errand...
RS
For those who aren't Fireheads: George Leroy Tirebiter and Betty Jo Bealovsky are a characters from the LP (now CD)How can you be in two places at once, when you're not anywhere at all" by the Firesign Theatre and the terms "Napalmolive" and "Lawyer's Hospital" are also inventions by the FT. As is my name, Ralph Spoilsport, and my tag line, "Shoes for Industry, Shoes for the Dead".
Shoes for Industry. Shoes for the Dead.
"Fox said Essent's biggest concern is that the blogger has said some hospital employees have given him patient records. Even though they have not been posted on the blog, Fox said this represents a violation of federal law and the company needs to find the employees who are doing it."
If he hasn't posted them on the blog, how are they so certain he's been given patient records?
This sounds to me like maybe some of the employees told him something, probably *without* giving him access to the patient records, and possibly without any specifics (e.g., "we had a patient where x happened, and that was messed up"), and the company is crying 'he's been given medical records!' to make it seem like they have a better reason to get the employee names than they actually do.
If the blogger's accusations turn out to be false, the blogger's credibility will fall down like those wacky conspiracy theorists. Case closed. And if they turn to be true, cool, one point for justice.
;-)
But certainly I don't think the blogger should be arrested for libel unless he gives his name and accuses the hospital. See, he's anonymous and his credibility is null. Big deal.
I mean, it's like the rumour about a Coca Cola bottle with a rat inside. Nobody can verify it, and it's just hearsay. Or what about the people who say there are UFOs in Area 51? Are they going to get sued for libel, too?
Around 10 years ago, where a famous news agency reported on the Chupacabra according to some information they found "in the internet!" (lol). Gee, the internet became the Brittanica all of a sudden
If people start believing every freaking thing they see on the internet, then the problem isn't the blogger, or the hospital. It's the bunch of idiots behind the monitors of their compies. Why should people believe an ANONYMOUS blogger? Or everyone's guilty until proven innocent now?
It's the authorities' duty, not ours, to judge the hospital.
While the courts naturally have a tendency to see litigants agree and save them the burden of deciding, perhaps there are cases where such laxness is not in the public interest. IMHO, courts ought to approval all settlements (including withdraw/dismissals). Once the sword of public justice has been unsheathed, the public has an interest in how it was used.
Plaintiffs ought to be a bit afraid that they will be chastised if their case is frivolous or otherwise abusive. Smark defendants will lock the plaintiffs down by cross-filing, but this does not protect third parties who have no standing. So the judge ought to consider amicus briefs.
T'would truly suck.
Kwisatz Haderach
Sell the spice to CHOAM
This Mahdi took Shaddam's Throne
All you say is true but so what. Why should people who criticize have an expectation of anonymity or escape libel charges? Were assured free speech by our constitution but that is emphatically not an assurance of anonymous speech. We (in the US) are free to associate with whom we please and exclude reporters. But if we do say something publicly it becomes public.
The fact that someone might fear retribution does not hold. People are obligated to testify in trials even though they might fear retribution. They don't testify anonymously. We do recognize extreme circumstances and conditions liable for abuse. That's why there's such things as the whistleblower protections laws and witness protection programs. But those are not for everyone.
Some drink at the fountain of knowledge. Others just gargle.
You have a right to free speech, but you are not free of any and all consequences of said speech. FTFA, the hospital seems to have valid concerns, that can only be addressed by digging deeper. Digging deeper involves finding out names of people trying to be anonymous on the internet. There are laws that will protect hospital employees if they haven't done something illegal like give out patient information, or haven't been posting blatant lies about their employer. If they have been honest in their "free speech", then they have protection, and shouldn't be afraid of suddenly not being anonymous.
Free Speech is raw, and out in the open. Everyone is free to use it, but everyone has to realize that there are still things they can say that get them in trouble, even if they have the right to say it.
You need to become familiar with it, if you're going to blow the whistle.
That way if they are unattractive they can be sued into poverty.
And if they are hawt, they can be made into media darlings.
Anonymous speech isn't free speech. Free speech means you can own what you say.
Paging Mr Orwell... Call for Mr Orwell on the black discourtesy phone...
If they are exposing patient information, that's a violation of HIPAA and they very well should get in trouble. Just like my girlfriend can't tell me who is taking what drug at the store where she's a pharmacist (which I really don't want to know anyhow... and with the way the information is all linked together there's access to tons of peoples info)
I've read TFA, and went beyond that to find the blog (the paris site blogspot and google a little on Essent Healthcare.
I did not see anything suggesting a violation of HIPAA on the web site (my background includes several years as the Information Security Officer for Nursing Service at a largish hospital: I'm reasonably familiar with HIPAA requirements). There is nothing illegal about a third party discussing the particulars of someone's treatment at a hospital, even when that includes information that could allow someone to identify the patient. It is illegal for a hospital or healthcare professional to release identifying information, even unintentionally, but if that occurred here, it would have occurred before the blog posted about it.
In other words, if there was such a violation, it would have involved the hospital employee who leaked the data to the blogger, not the blogger or the blog. HIPAA governs healthcare providers and the policies and procedures they use: its scope does not extend to information that has gotten out into the wild.
If the hospital had adequate information security and HR policies in place, the alleged leak could not have occurred without triggering flags that would identify the staff person who leaked the information. Essent's pursuit of this blogger on the basis of HIPAA violations is a tacit admission that they are negligent— not exercising due diligence— regarding confidential information. Maybe they need to spend more money on paper shredders, enforce policies about logging out of the system when leaving a workstation unattended, disallow corporate officer access to confidential patient files, and so forth.
A noteworthy tidbit is that Essent Healthcare is a small part of the Healthtrust Purchasing Group, which seems to be buying up hospitals and clinics all over the country for the purpose of making profits. This is capitalism at its finest, but it does mean that improving patient care is no longer the highest concern of those running the show.
Unless the person is actually lying and the hospital can prove it, I don't see how they have a case. Being anonymously critical of something isn't a crime.
http://www.the-paris-site.blogspot.com/
I checked out his blog (thanks for the link) and I'm a little concerned for him:
"I delete emails, so discovery is moot."
IANAL, but I could see a situation where someone with enough influence could convince a prosecutor to go after him for deliberate destruction of evidence or obstruction or whatever they want to call it.
Of course, that brings up the question "is the deliberate deletion of logs and/or emails in order to protect anonymity ok?" Obviously, if you are embroiled in a lawsuit or are under investigation, this could be construed as destruction of evidence, but if you do it as a matter of course and are not under some ISP free harbor agreement (we won't hold you responsible for the actions of your users so long as you don't take deliberate actions to destroy logs/emails/whatever and you cooperate with any court orders).
I really don't know the answers, but others might.
The Digital Sorceress
Here's a better link that includes links to the actual court documents: http://www.citmedialaw.org/texas-judge-orders-discovery-anonymous-bloggers-identity
The blog is here: http://the-paris-site.blogspot.com/
I don't see how the blogger is liable for anything HIPAA related. The complaint references criminal law and Essent's own responsibility to keep patients' information private, nothing relevant to a blogger or the independent actions of Essent's employees. E.g., Essent could fire the employees under the confidentiality agreement, but they reference no matter of law that says the employees are otherwise liable. There may be some other documents or law not mentioned by the complaint, but I don't see how the blogger is a party to such matters, especially since he/she likely never signed the employees' confidentiality agreements. Also, I don't see how Essent has standing to prosecute federal HIPAA violation in state civil court.
I don't know why the blogger and the other Does are joined in a lawsuit as well. Any HIPAA violation between Essent and employees would be a distinct event from the publishing of any such information on the blog. As in the RIAA lawsuits, it seems this would be a valid way to appeal the imminent order from the judge. (Although remember this is state district court and the RIAA lawsuits are federal district court.) Also note that the blogger's lawyer has come forward (see lawyer's Aug letter, although the judge's Sept order says he has not), so the case can continue on it's merits without the need to disclose the blogger's identity.
I also don't see any specific allegations of defamation. Defamation is hard to prove, and I don't see anything in the complaint that couldn't be interpreted as opinion by a reasonable person, or is simply disclosing internal happenings in the hospital, which would be known to a lot of the hospital's employees and patients. If a hospital employee relates false information on the blog or to the blogger, then that employee would be the defamer, and not the blogger. E.g., who would reasonably assume that an anonymous blogger would be an authority on the inner workings of Essent, and use that one blogger's opinion to judge Essent? Of course, it's possible the blogger is an employee. It's also possible that the blogger and all other Does are patients.
Finally, I was amused by a couple of things in the complaint. First, to see an employer refer to the employees' "breaches of the employees' duty of loyalty". What?!? Employers and employees have a legal obligation of loyalty? I sure haven't seen many employers show loyalty to their employees, but then that's another thread... Second, the complaint says the blog is publicly available (that's how the hospital's business would supposedly be harmed), and that "...the blog has as it's sole purpose to conduct a one-sided attack and disparagement of the Hospital, PRMC, and their employees and doctors, and is in no manner intended to be an open and fair discussion of issues." OK, so that's why you filed a lawsuit instead of posting to the publicly available blog your open and fair rebuttal of the issues raised?!?!
I don't know the blogger, the other Does, or Essent, and IANAL, so I can only hope the truth of this matter comes out in court.
Regards,
Art
The /. and the linked story, neither one has a link to the damn blog!
is here: http://the-paris-site.blogspot.com/
I was looking for a good court case illustrating the Supreme Court's view on anonymous speech being protected as free speech, and you found one first.
It seems to me that the way this should work is that the case should go to trial first, and if the hospital can prove (to judge or jury depending) that the the anonymous person did something illegal (libel, revealing private patient info), then he will be outed and punished. Otherwise he should keep his anonymity.
I think the distinction here is that while one is free to speak, anonymously or not, the protection is on the speech not the anonymity. That is there is no right to expect your anonymity will be preserved or that anyone will be denied the right to expose or seek to expose your identity. You may certainly publish your pamphlet, and the fact that you try to do so anonymously may not restrict the act of publishing. ( I realize There are legal situations where the act of exposure might itself be illegal--e.g. a protected witness or CIA operative. But that's an exception).
Your case dooes however raise a different issue. One of prior restraint on the attempt to publish anonymously. prior to reading the case you cite I would have believed that it might be legal for the government to enforce a ban on anonymous speech. Now I see that they can't apriori do so. THey can expose you after the fact or perhaps compel other to do so. But they cannot prevent your speech in the first place because it is anonymously authored.
Some drink at the fountain of knowledge. Others just gargle.
Apparently your blatant sarcasm detector is broken. re-read the post you replied to.
It seems to me that that before you charge someone of committing libel, you must first prove that his/her accusations against you are untrue. Otherwise, how is it libel? That being said, should it really matter (to the hospital) that the accuser is anonymous? Sounds to me like the hospital simply wants to know the identity so they can snuff out the whistleblower.
Ironically, the so-called libelous claim is that the hospital violated HIPPA privacy laws. Seeing as how they are trying to destroy the whistleblower's anonymity, I'm more inclined to believe that these claims have merit.
You may as well read the Paris-Site blog yourself.
My understanding is that destruction of evidence is only relevant when discovery has been served or you know it's about to be served - habitually deleting email after 2 weeks is just habit. Otherwise, my company would have to archive every piece of email that went through its systems.
"We returned the General to El Salvador, or maybe Guatemala, it's difficult to tell from 10,000 feet"
Smark defendants...
Defendants who enjoy pro wrestling even though they know it's all fake?
It's been a long time.
In fact, HIPAA doesn't prevent a relative or friend of a patient from telling all they know about a patient.
Anonymity is crucial to Free Speech. It needs to be recognized and preserved. Only in cases where the speech can be proven to have been false and caused harm should anonymity be stripped away to expose the abuse.
In a great many cases, an individual being able to prove the wrong doings often accused, is nearly impossible, or extremely costly. But without such free speech, these wrong doings would never even be investigated.
So in a way you are right. But, there needs to be a full investigation into the accusations before anyone can say that the speech caused harm. In this case, if the hospital wants to claim that what was spoken (blogged) is not true, it should offer to allow this investigation by a party that can be trusted by the public. Only if this investigation shows that the accusations are untrue AND that the claims by the accuser caused harm, then the accuser should be uncovered.
What about the right (of the hospital in this case) to face their accuser? That's for a formal accusation in court. If the investigation found problems worth taking them to court, the investigators are the formal accusers and they would be the ones the hospital gets to face. The blogger is strictly an informal accuser (unless he choses to step forward and make the accusation formal).
now we need to go OSS in diesel cars
we need a mechanism with which a defendant can demand that the case be seen through to completion.
It is called a counter-suit.
The problem in law suits (and this is what I face), often the party with more money wins, either actually wins or makes you lose even if you won in court.
Example:
So, this guy owes me $40k. And he owes a lot of other people between $20k-100k. Now Mr. $100k sues him. He counter sues for $1M (trademark, trade secrets, interference w/ business, and legal fees due to an indemnification clause in the contract).
So, Mr. $100k now has to pay ~$75k in attorney fees to defend against the counter-claims.
If Mr. $100k wins, he'll get MAXIMUM $25k, and a year plus in time he has to take off of work for court appearances. Plus, you never win everything you ask for. So, probably this suit has turned into a loser for him.
If Mr. $100k loses he is on the hook for $1M plus the other guys high priced attorneys (and they are high priced).
So, picking a middle ground, he could win on the $100k but lose on the indemnification clause. Which would mean he has $100k minus $75k in his fess minus $150k in the other guys fees, or negative $125k.
The "bad guy" isn't going to back down because (1) he has mental issues with being wrong, and (2) he has to win not just against Mr. $100k but against the X other people. He is willing to spend $250k to win this $100k suit. Often with corporations it isn't about the money, it is about winning.
The strategy is for him to make the law suit so expensive and dangerous that Mr. $100k packs it in and goes home. And, you know it worked.
Sometimes you are right, but the game isn't worth the candle. Better to cut your loses and move on.
By initiating a lawsuit, they are getting the attention of the media. The small handful of people that may have read the anonymous post has increased to thousands, maybe even hundreds of thousands. As a result, the number of people that question whether this is just an anonymous nut or a real-life whistle-blower has also increased.
Why pursue an anonymous comment with the force of law? Is there really something behind it? What are they trying to hide?
That's the train of thought that the hospital has initiated. It's not the anonymous poster that should be sued, it's the administration that chose to advertise an otherwise meaningless post and bring scrutiny to their business.
Unless the anonymous poster is the person in the administration that started this. In that case, mission accomplished!
Can You Say Linux? I Knew That You Could.
Texas hasn't entered the 19th century yet, let alone the 21st. Give 'em back to Mexico!
So? Yesterday, I SAID that I screwed Brittney Spears! That doesn't mean that I DID! This guy CLAIMS he has patient records-but where is the proof? No Proof, no case! They are trying to get infomation based on hearsay. Figures that in Texas the judges are IGNORANT enough to grant things based upon heresay! Don't they elect their judges there? If so it makes perfect sense-moron judges elected by morons!
The Supreme Court disagrees with you (see post above).
MOD up
Used to be a haven for cypherpunk thought, now it's overrun with Big Brother cheerleaders.
This judge is naive. Any way you look at this there is no way to know who pressed the submit button. In a "best case" scenario the ISP will know who's account posted the blogs but that does not tell you who actually did it. A friend could have used his computer to send them. If the man has an open wi-fi network anyone fron the hospital could have driven by in a car and jacked his internet connection to post the blogs.
This lawsuit is nothing more than a clever way to retaliate against a whistle-blower.
As someone who has built HIPAA programs and spent a great deal of time with lawyers on the subject, it IS their job. If they even suspect that hospital employees have divulged information (and they have) and they do nothing, it's their fault. NOTE, they can't just call the police or the FBI. The facility is one at fault here because it's their employees. The law doesn't penalize the employees, only the "covered entity", that's them.
As a Canadian, I'm still amused by a hospital getting upset because they might lose business...
You Americans are weird people sometimes.
If I knew the wedgies I gave you back in 6th grade would have resulted in this . . . I might have taken a moments pause.
The area east of Dallas in TX is a wide open land called "East TX" - one of the most backwards, traditional, bible thumping shithole scary places in the US. These people are more stupid than the Alabamans. Medical care (mostly in Tyler) is the only real business - and oil land speculating. The law their is more crooked and corrupt than you can imagine -- think China and bribes, and back-room smoky deals, and rich old men running things. Think Bush never serving in the national guard, after jumkping a 500 person waiting list to "serve" on the Champaign Patrol for rich kids to dodge Vietnam. That was there in East TX.
It is a very sad day for (the) US that any legal precident is set there.
of the courts [powers] being misused
having been through a few trials myself, I've found that misuse is by far the most common application of the courts' powers - especially in EAST TEXAS.
This is why there are so many lawyers and they are paid so much when they are good. Courtrooms are a very complex game.
There are other ways to handle possible hospital problems than posting to an anonymous blog. Since the late 1990s, almost all hospitals have implemented corporate compliance plans. Corporate compliance plans usually name one high level employee as the corporate compliance officer who has the power to report directly to the board. Part of this person's duties are to set up an anonymous whistle blower hotline. It is their job to investigate any complaints that come in to the hotline. Other duties of the corporate compliance officer are to set up a corporate compliance team and perform random and targeted internal inspection. Inspection includes, reviewing medical records and comparing them to doctor transcripts to ensure proper medical record recording and reviewing patient bills to see if charges that were billed (usually to an insurance company) are the correct codes compared to the medical record for what actually took place. Hospitals are not mandated to have corporate compliance plans, but if they are investigated by the OIG (Office of Inspector General) then they can mitigate their fines by showing that they have a corporate compliance plan and that they actively engage in carrying out the plan. The odds are that this hospital has such a plan, such an officer, and such a whistle blower hotline. If the blogger was actauly and employee, then he would know this. (My knowledge of this subject is a working one because I am a hospital auditor.) P.S. - This is my first Slashdot post. I've been lurking for the last 5 or so years.
The company in questions, Essent, alleges that *patient records* are being handed over to the blogger in question and this is why they're raking his ISP over the coals (can't drop a subpoena on someone you can't mail a letter to....stupid legal system). If they are violating patient's privacy, I'm with the hospital on this one. If they're fronting because they're guessing the posters are hospital employees and they want to clean house, then I hope those posters know how to use an anonymizing web proxy.
IANAL, but in my view, I think there ought to be a basic requirement of evidentiary support prior to the outing of an identity. Basically I think that the Plaintiff needs to show the judge that:
1) "If what we say is true, then he should be held legally accountable as a matter of law" and
2) "Here is reason to believe that what we say might be true and why we should be allowed to procede with discovery."
I don't think that anonymous communications should provide cover from slander and libel. However anonymity is not something that should be thrown out just because an accusation is made either.
LedgerSMB: Open source Accounting/ERP
In my view (IANAL), I think the paintiff should have to show that:
1) If what they say is true, there is cause for action and
2) They have at least some basic evidence of the accusations.
For example, if they can produce a posting which shows that the blog did in fact claim to have received patient records, that would significantly help on showing this. I wouldn't want my medical records being handed to some blogger without my permission.
This is an interesting case because it tests the rights to privacy of a large number of parties. It isn't just about free speech, but security of medical records, and the like. If the hospital has evidence of what they are accusing, this probably should go to court. If not, then it shouldn't.
LedgerSMB: Open source Accounting/ERP
A better approach to me seems to be to request that the plaintiff state a claim with specificity which meets legal criteria under applicable law, and provide a reasonable level of evientiary support before the identity could be ordered to be revealed and the lawsuit procede.
LedgerSMB: Open source Accounting/ERP
I am TheRaven on Soylent News
Let me get this straight. The bloggers want to remain anonymous, but want to name names in their blogs?
How cowardly and hypocritical.
The bloggers want to talk about others and use names and other identifying information, then they should not whine about those same people getting their names from their ISPs.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.