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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."
"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.
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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.
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.
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.
That way if they are unattractive they can be sued into poverty.
And if they are hawt, they can be made into media darlings.
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.
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
You may as well read the Paris-Site blog yourself.
Smark defendants...
Defendants who enjoy pro wrestling even though they know it's all fake?
It's been a long time.
The libel is in the words that is reasonable to believe will damage your reputation.
Truth is a modern defense to an action for libel. There was in the past the belief that "truth" did not always contribute to civil and productive political debate.
That defaming your neighbors was a disturbance of the peace.
Imagine the zealot who makes it his life's mission to expose homosexuals to public humiliation and you will get the general idea.
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.
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