Court: Okay For Trial To Move Forward Against ESPN For Tweeting JPP's Medical Chart

from the getting-the-finger dept

Tue, Aug 30th 2016 4:00pm — Timothy Geigner

The Fourth of July is long in our rearview mirrors, but for some folks the holiday haunts them still. Such is the case with NFL football player Jason Pierre-Paul, who quite famously managed to celebrate our nation's independence by blowing apart a good chunk of his hand a year and a half ago. So too does the holiday likely remain top of mind for ESPN and its reporter, Adam Schefter, who found themselves in a bit of controversy after reporting on Pierre-Paul's condition and tweeting out a copy of the player's medical chart, revealing that he had no digits where there previously had been fingers. Pierre-Paul sued Schefter and ESPN for invading his privacy, arguing that he'd suffered great harm as a result and suggesting that, though Schefter had received the medical chart from a source, the publication of such information might make it less likely for other famous persons to seek medical treatment in the future. ESPN, meanwhile, attempted to spike the lawsuit on First Amendment grounds under an anti-SLAPP statute, arguing that journalists have always been free to provide evidence for stories gained from sources.

Well, the court has ruled against ESPN's attempt to have the suit dismissed, saying the lawsuit will proceed.

New York Giants defensive end Jason Pierre-Paul is suing ESPN and star reporter Adam Schefter over a tweet that revealed an amputated right finger as a result of a July 4 celebration last year. The NFL star asserts he suffered great damage when Schefter showed his four million followers a copy of Pierre-Paul's medical chart. But despite ESPN's First Amendment arguments, a judge on Thursday rejected ESPN's attempt to dismiss, according to a statement from Pierre-Paul's attorney.

ESPN, represented by the same lawyers that represented Gawker, argued that courts "have consistently recognized that a journalist is entitled to include visual evidence corroborating a report on a matter of public concern."

ESPN's lawyers also pointed out that Pierre-Paul is not suggesting that Schefter was prohibited from reporting on the exact details within the chart, which was the actual harming information if any harm actually was done, but that tweeting out the medical chart image itself suddenly was actionable. Why Pierre-Paul chose this attack on ESPN and a journalist rather than whatever source shared the chart with Schefter in the first place is largely left unaddressed, although the depth of the parties' respective pockets likely has something to do with it.

Regardless, this is a disappointing ruling on many levels. Those seeking medical attention certainly do have an expectation of privacy from those providing the healthcare work and one would think HIPAA violations may be in play here as well, but Pierre-Paul has no such expectation of privacy from a journalist covering him. The proper defendant in this case is obviously whomever provided the chart to Schefter and likely over HIPAA violations. Whatever the implications upon privacy at issue here, it seems quite clear that chilling the reporting of journalists who receive information from sources is not hte proper vector for addressing those issues. Between this and the Gawker case, along with the public comments by one well-known would-be politician, we seem to entering a different era in terms of how the press is viewed and treated in America.

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Filed Under: adam schefter, first amendment, hipaa, jason pierre-paul, journalism, medical reports, privacy
Companies: espn

48 Comments

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Anonymous Coward, 30 Aug 2016 @ 4:22pm

Sorry ESPN no sympathy on this one.
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TKnarr (profile), 30 Aug 2016 @ 4:28pm

HIPPA does come into play
I think HIPPA does come into play because the journalist would know that his source couldn't legally be providing a copy of the medical chart. The journalist would certainly be aware of HIPPA and at least it's general parameters, and under no reasonable interpretation could anyone (other than maybe JPP himself) disclose the medical chart to the journalist without violating the law in the process. That puts things in a somewhat different light than if the journalist didn't know he was disclosing confidential information obtained illegally.
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Padpaw (profile), 30 Aug 2016 @ 4:31pm

Thought it was against the law to expose someone else's medical records
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Nic, 30 Aug 2016 @ 4:41pm

Of course it ought to be illegal to pull that kind of stunt. A big organization such as ESPN ought to know medical records are strictly confidential and unless your source is the person itself, a crime was committed.

It only makes sense to me that the person who publishes that information (not just report on it) also be punished, not just the leaker. Otherwise, they can just bribe the right people into breaking the law for them to profit from it.

At least when it comes to private persons. I wouldn't hold the government to the same standard as it shouldn't have an expectation of privacy because they serve the public. I wouldn't be surprised in the least if ESPN lost that trial just like Gawker did.
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Anonmylous, 30 Aug 2016 @ 4:48pm

Uh oh
"ESPN, represented by the same lawyers that represented Gawker,"

Oh this... this does not bode well.
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Anonymous Coward, 30 Aug 2016 @ 4:50pm

Re: HIPPA does come into play
That puts things in a somewhat different light than if the journalist didn't know he was disclosing confidential information obtained illegally.
Compare your argument with Bartnicki v Vopper (2001)
The amended complaint alleged that each of the defendants "knew or had reason to know" that the recording of the private telephone conversation had been obtained by means of an illegal interception.

. . .

The constitutional question before us concerns the validity of the statutes as applied to the specific facts of these cases. Because of the procedural posture of these cases, it is appropriate to make certain important assumptions about those facts. We accept petitioners' submission that the interception was intentional, and therefore unlawful, and that, at a minimum, respondents "had reason to know" that it was unlawful.
(Emphasis added.)

How is your argument different?
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That One Guy (profile), 30 Aug 2016 @ 5:04pm

Re: HIPPA does come into play
I can sum up the problem with that idea in two words: 'Classified documents'.

If 'they should have known the source had broken the law' is enough grounds to strip a person/company's ability to report on something they are given the government and private companies would be able to completely shut down any whistleblowing activity, because often enough the one who originally obtained them and hands them over broke some law or violated some agreement of some sort to do so.

Yes whoever shared the original medical reports almost certainly violated HIPPA rules, so go after them for that, the ability to charge the ones who report on what they were given as though they were responsible for the original violation of the law opens up a huge can of worms, one you can be sure that both government and private companies would love.
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Anonymous Coward, 30 Aug 2016 @ 5:08pm

Re:
A big organization such as ESPN ought to know medical records are strictly confidential and unless your source is the person itself, a crime was committed.
Big organizitions such as The New York Times and The Washington Post ought to know that a document entitled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense is strictly TOP SECRET – SENSITIVE, and unless your source is President Nixon himself, a crime was committed.

Is that right?
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That One Guy (profile), 30 Aug 2016 @ 5:12pm

Re:
To which the government's response would be that if you accept that you can punish both the person who originally obtained the information through dodgy if not flat out illegal means and the person who reports it because they're both responsible and the reporter/company 'should have known' for something as trivial as personal privacy then that same argument would apply ten-fold for government actions, which are of course all about protecting many people.

If the precedent is set such that those that report on something can be held just as responsible as those that handed them the info both government and private companies/individuals will use it to crack down (even more) on those that air their dirty laundry for the public to see.

Something like the Snowden leaks would not have been possible with that precedent in place, as the newspapers would have been sued and/or tied up with so much red tape that they wouldn't have been able to publish more than one, maybe two articles before they were shut down.
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Todd Shore (profile), 30 Aug 2016 @ 5:12pm

There is no private cause of action under HIPAA, though there have been successful cases where the covered provider was successfully sued in state court using a HIPAA violation as evidence of negligence or failure to provide due care.
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JEDIDIAH, 30 Aug 2016 @ 5:34pm

Sorry armchair lawyers.
No. The journalist can't assume that private information is being shared without authorization. The violation still rests with the journalists source. Even then, they may not even be covered by HIPPA.
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Anonymous Coward, 30 Aug 2016 @ 5:42pm

While poor taste to publish a person's medical record, I fail to see what the actual harm is here.

He's a professional football player. It was all factual information. Any potential employer is immediately know that he's missing fingers. No way to hide that one on a physical.
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TKnarr (profile), 30 Aug 2016 @ 5:55pm

Re: Re: HIPPA does come into play
Firstly would be the "public concern" aspect. In this case the contents of the medical chart and the details of treatment wouldn't be a matter of public concern in the sense Bartnicki is speaking of. In fact, the decision you linked to specifically says the Court does not address the question when the information isn't of public concern. That alone's enough to distinguish the cases.
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Ruby, 30 Aug 2016 @ 6:04pm

Makes sense. The bar for publicly disclosing the contents of someone else's medical records has GOT to be higher than "I felt like it".
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Anonymous Coward, 30 Aug 2016 @ 6:08pm

Re: Re:
But who cares if journalism dies an even fire-ier death?
These appeals to "common sense", as sensible as they always seem, are some of the most unfortunately insidious facets of the public's perception of justice systems.
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Anonymous Coward, 30 Aug 2016 @ 6:12pm

Re: Re: Re: HIPPA does come into play
… the contents of the medical chart and the details of treatment wouldn't be a matter of public concern
Another Hollywood Reporter story (indirectly linked from the article up top), embeds a copy of Adam Schefter's 8 Jul 2015 tweet showing the portion of Jason Pierre-Pauls' medical chart at issue.

I haven't yet seen a copy of the complaint myself, so I'm somewhat handicapped here.

Do you know if the tweet was attached or otherwise incorporated into the complaint? What I'm getting at is whether the actual contents of the tweet can be considered during the motion-to-dismiss stage?
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Anonymous Coward, 30 Aug 2016 @ 6:53pm

UPDATE: Monday's written ruling
In Geigner's article up above, he linked to a August 25, 2016 Hollywood Reporter (THR) story by Eriq Gardner, reporting on the judge's bench ruling.
The judge ruled from the bench, according to local news reports.
Yesterday, THR published another piece by Eriq Gardner, “Why an NFL Superstar's Lawsuit Against ESPN Represents a Threat for Media”. In that piece, he informs us:
[O]n Monday, U.S. District Court judge Marcia Cooke issued a written order.
This THR update on the story provides a link to Monday's written order.
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Tin-Foil-Hat, 30 Aug 2016 @ 7:01pm

Individuals have an expectation of privacy
Sorry but in this case both the person who handed over the medical records and ESPN comitted the hippa violation. It is a path to abuse if the government can launder it's own lawbreaking through some shady news agency which is exactly what will happen if ESPN is off the hook for this.
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Anonymous Coward, 30 Aug 2016 @ 7:21pm

Re: HIPPA does come into play
I think HIPPA does come into play because the journalist would know that his source couldn't legally be providing a copy of the medical chart.

Schefter is not a health care provider.
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streetlight (profile), 30 Aug 2016 @ 7:25pm

Re: HIPPA does come into play
It's HIPAA: Health Insurance Portability and Accountability Act
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That One Guy (profile), 30 Aug 2016 @ 7:29pm

Third time's the charm?
Sorry but in this case both the person who handed over the classified documents and [insert news agency here] comitted the legal violation. It is a path to abuse if the government can hide it's own lawbreaking through asserting that publishing classified documents is just as bad as leaking them in the first place which is exactly what will happen if ESPN is off the hook for this.

The government and/or private companies already have numerous ways to make someone's life miserable, making it so that news agencies are treated no different with regards to handling potentially illegal/personal/classified information they are given than the person who handed it to them would be a gigantic boon to the government, not a bane. As I noted above you think the Snowden leaks would have lasted so much as a week if the government was allowed to treat reporting on classified document no different than violating the law/contract to leak them in the first place?

You might say that the situations are different but that's true only in the fine details, the underlying idea that reporters have to consider the legal status of what they're handed lest they be treated as though they themselves were no different than the one who broke the law in the first place to attain the private/classified information is pretty much the same, and one that stands to cause some serious harm if allowed to become the norm.

There's at least one person who is responsible for accessing the medical records and sharing them with ESPN, I've got no problem with going after them, but undermining the ability to report on things by forcing the reporters to be considered no different than the original lawbreakers stands to do far more harm than good, to the extent that there might not be another Snowden if that becomes the case, as no newspaper or reporting agency/individual will be willing to take the risk of reporting on what they're handed, no matter how damning it might be.
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Anonymous Coward, 30 Aug 2016 @ 7:48pm

Re: Re: Re: Re: HIPPA does come into play
I haven't yet seen a copy of the complaint myself
OK. Not only have I skimmed through the complaint once, but also, and this took a little bit longer, I've found a linkable copy of Exhibit A attached to Defendant ESPN's Notice of Removal (Document 1 on FLSD docket).

So, right now, it doesn't appear to me that the tweet was attached to the original complaint.

However, from p.3 of Defendant's Motion to Dismiss and Incorporated Memorandum of Law:
On July 8, Mr. Schefter posted a tweet stating that “ESPN obtained medical charts that show Giants DE [Defensive End] Jason Pierre-Paul had right index finger amputated today.” Ex. 1; Compl. ¶ 18. [Note 2] Mr. Schefter included two photos of a corner of a page of a portion of Plaintiff’s medical records documenting the fact that this amputation had taken place. Ex. 1; Compl. ¶ 17.
. . .
[Note 2] On a motion to dismiss, the court may consider a document not physically attached to the complaint “if it is central to the plaintiff’s claims and is undisputed in terms of authenticity.” Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 n. 3 (11th Cir. 2005).
I've now skimmed quickly through plaintiff's Plaintiff's Memorandum of Law in Response to Motion to Dismiss, looking for argument against considering the tweet at this stage. I didn't see any argument against it. Perhaps you can point it out for me?
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Atkray (profile), 30 Aug 2016 @ 9:44pm

Justice
Justice would be that after all this the judge then finds that Pierre-Paul suffered great damage because he played with fireworks and NOT because of any reporting subsequent to that.
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Ryunosuke (profile), 30 Aug 2016 @ 10:49pm

I have to agree with the courts on this one. ESPN could have gone with a more ... broad report without going into super specific details. They could even go into semi-specific details and cite "Sources" as such that Journalism (actual journalism) entails.

I believe the court's thinking is that ESPN disclosed it without proper authorization. Yes, they did obtain it, but again, they didn't have to DISCLOSE it. Yes the person that gave it to ESPN in the first place is also breaking the law, but ESPN is also not without fault In this one case.
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Whatever (profile), 30 Aug 2016 @ 10:55pm

Sympathy
It's hard to find any sympathy for any of the people / companies involved here. Idiot blows off his own hand, I have little sympathy for someone seemingly that stupid. Whoever gave / sold / profited from giving the medical records to EPSN is a douche nozzle and gets no sympathy. ESPN gets even LESS sympathy, because they double douched in paying for the records and then making them public pretty much in direct violation of doctor patient confidentiality

ESPN is the biggest douche of all here, so it's not hard to see the courts finding against them. I am just surprised actually that no criminal charges are pending.
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TKnarr (profile), 31 Aug 2016 @ 12:48am

Re: Sorry armchair lawyers.
In this case they can, since the journalist doesn't dispute that it's a medical chart. The only people who have legal access to those are the patient and medical professionals who are bound by HIPAA not to disclose it. The journalist isn't claiming JPP gave it to him, which leaves no party with legal access to the medical chart who could give that chart to the journalist. Even if it went through several hands, the journalist still knows that whoever he got it from got it from someone who was breaking the law. As the Court noted in Bartnicki, when the material isn't of public concern the First Amendment issues are very different than they are for matters of public concern and discourse. The First Amendment protects your right to speak your mind, not your right to dig into any random private individual's life and broadcast all the details of it to everyone.

It would also be a different matter if the journalist were claiming that JPP or his authorized representative had provided the medical chart, or at least that his source had claimed such. As far as I know the journalist hasn't, probably because that claim would be easily refuted and would put the journalist in an even worse spot than he's in now.
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TKnarr (profile), 31 Aug 2016 @ 12:52am

Re: Re: HIPPA does come into play
No, he isn't. And as such, he would not be permitted access to JPP's medical chart if he asked to see it. If he got it from a health care provider, he would know (at the very least because it's general public knowledge) that that HCP was violating HIPAA in giving out the medical chart. If he got it from someone who wasn't a health care provider, then he would know that that party had no more legal access to it than he himself would unless the other party were (as I noted) JPP himself or his authorized representative. And I don't recall where Schefter claimed to have gotten the medical chart directly from JPP.
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Anonymous Coward, 31 Aug 2016 @ 1:13am

Re: Re: HIPPA does come into play
and if they don't give up that person you are in a mobius strip of reasoning. Which understandably so pisses a lot of people of. When pissing a lot of people off is standard practice even though you might have the better argument in the long term. You will be set back quite a bit just by the blowback.
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Ninja (profile), 31 Aug 2016 @ 3:36am

Re: Sympathy
It's amusing when we have to elect the least idiot in a case. I'd say it's the player and the worst is the one who sold the charts to the reporter.The player should have avoided playing with fireworks yes but accidents happen.

Now I do agree with Mike, this lawsuit is misguided. The one that should be prosecuted is the person who leaked the charts. ESPN could get a wrist slap yes but that's it.
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Dark Helmet (profile), 31 Aug 2016 @ 4:00am

Re: Individuals have an expectation of privacy
"Sorry but in this case both the person who handed over the medical records and ESPN comitted the hippa violation."

ESPN is governed by HIPAA? Since when?
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Dark Helmet (profile), 31 Aug 2016 @ 4:05am

Re: Sympathy
"ESPN gets even LESS sympathy, because they double douched in paying for the records and then making them public pretty much in direct violation of doctor patient confidentiality."

Um, no. ESPN by definition cannot violate patient doctor confidentiality as they are neither the patient nor the doctor. Again, this is a matter of who the lawsuits sights ought be set upon, and it sure shouldn't be ESPN, which did it's journalistic duty.
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Anonymous Coward, 31 Aug 2016 @ 4:29am

Re: Third time's the charm?
"It has been confirmed..."
Is that not good enough for a personal tragedy? Reading this story it sounds like an unfortunate accident occurred. Is there a criminal reason they are reporting on as to why he is missing fingers?
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Anonymous Coward, 31 Aug 2016 @ 5:01am

So where does it end? Press publishing bugged attorney-client conversations? Psychiatrist notes?

Why should the press be treated differently than any other citizen, which if they did these things would be illegal.
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Anonymous Coward, 31 Aug 2016 @ 5:08am

Re: Re: Sorry armchair lawyers.
"The only people who have legal access to those are the patient and medical professionals who are bound by HIPAA not to disclose it."

And anyone JPP gave access to willingly or through releases signed as part of the care.
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BJC (profile), 31 Aug 2016 @ 7:08am

Target Effect of Fla. Shield Law
With regard to "why is the player suing ESPN," I notice that Fla. has a journalist shield law.

Which means, basically, that the most direct option for figuring out who gave up the file, asking the reporter via subpoena, is out. It's theoretically possible to find the leaker's identity through other means, but none are guaranteed.

So, if you're the player and you want someone to be held responsible, you sue ESPN. Either A) you win a bunch of money, or B) you get, as a condition of settlement, ESPN to narc out its source so you can chase after him.
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Ninja (profile), 31 Aug 2016 @ 8:36am

Re: Re: Sympathy
Er, my apologies, I failed at reading who wrote the article in my reply.
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mattshow (profile), 31 Aug 2016 @ 9:34am

There's a lot of armchair lawyering going on here considering all the details we have come from a very thin article discussing a judgment issued from the bench. We have no idea why the judge ruled that Florida's anti-SLAPP statute did not apply.
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Anonymous Coward, 31 Aug 2016 @ 9:35am

Re: Target Effect of Fla. Shield Law
So, if you're the player and you want someone to be held responsible…
The practical effect of Judge Cooke's (partial) denial of ESPN's motion to dismiss is that the plaintiff's case will proceed to discovery.

This decision does not immediately circumvent the public policy expressed in Florida's journalist shield law.

Instead, I would expect that there'll be some motion practice on discovery issues (potentially handled by United States Magistrate Judge Edwin G. Torres) prior to motions for summary judgement.
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Wyrm (profile), 31 Aug 2016 @ 9:38am

Re: Sympathy
I agree with you up to a certain point: ESPN is acting as a douche, however, being a douche is immoral, not illegal. They can double- or triple-douche, that makes them look bad, but it's still not illegal.

If that's the extent of your argument, remember that the law is there to punish criminal activity, not "things you don't like" in general. If we went that way, remember that there is anyways someone somewhere who will think you're a douche too.
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Anonymous Coward, 31 Aug 2016 @ 10:28am

shoot the messenger, shoot the firework... shoot anything that isn't nailed down at this point, JPP is now retired and attempting to make up for that income
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Anonymous Coward, 31 Aug 2016 @ 10:39am

Details [was Re: ]
ESPN could have gone with a more ... broad report without going into super specific details.
Focusing on the image embedded in Adam Schefter's “4:04 PM - 8 Jul 2015” tweet, what are the exact “super specific details” that you find so very objectionable?

If the “super specific detail” is merely the tyranny of a MEDICAL RECORD — SENSITIVE label, then you're not really thinking. You're just reacting to labels. The government can slap down a TOP SECRET — SENSITIVE label on anything and everything. And they frequently do. Thoughtlessly. Comfortably.

So, are you merely reacting uncomfortably to a label, or can you point out one or more “super specific details” that the reporter should have redacted from the image? What exactly should have been censored with a black magic marker?
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TKnarr (profile), 31 Aug 2016 @ 10:52am

Re: Re: Re: Sorry armchair lawyers.
And, as I already noted, the journalist isn't claiming he got the chart from JPP or his representatives (ie. those having a form signed by JPP saying they're allowed to receive medical information and make decisions on his behalf). It'd be a slam-dunk defense and grounds for dismissal if he asserted that and it could survive refutation, that he hasn't asserted it suggests he and ESPN are pretty sure it'll get shot down in short order.

Other health-care providers, even if they have a release authorizing them access to the records, are governed by HIPAA when it comes to their handling of the records after they receive them and the releases don't and can't relieve them of that responsibility.
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BJC (profile), 31 Aug 2016 @ 11:22am

Re: Re: Target Effect of Fla. Shield Law
Legally, you're correct. The lawsuit doesn't and can't change the Fla. reporter shield law.

I was referring to two things, clearly less than eloquently:

1) Since there's a journalist shield law, the player can't file a "John Doe" suit against the leaker and subpoena ESPN or the reporter for his or her name. Any legal method of investigation to try to get around this might fail.

2) More speculatively, a way to get around the inability to subpoena is to file a Hulk Hogan-style privacy case. The player still can't legally compel ESPN or the reporter to disclose the names, but, with the threat of tort damages, the player can make ESPN "an offer it can't refuse": what's more important, a couple million worth of damages and legal fees, or a source who admittedly stole some medical records?

This might be a couple months down the line, possibly at summary judgment, when the parties have a more solid view of their relative positions.
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Anonymous Coward, 31 Aug 2016 @ 11:47am

Re: Re: Re: HIPPA does come into play
If he got it from someone who wasn't a health care provider, then he would know that that party had no more legal access to it than he himself…
Your logic here is no good.

Secrecy is not a transitive property. Rather, as more people learn a so-called “secret”, the less secret it becomes. And the more the information becomes known to the public generally, the less legal protection it deserves.
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I.T. Guy, 31 Aug 2016 @ 2:22pm

Re: Re: Sympathy
"which did it's journalistic duty."
So did Gawker.
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I.T. Guy, 31 Aug 2016 @ 2:23pm

Re: Sympathy
"ESPN is the biggest douche of all here" After you. :)
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I.T. Guy, 31 Aug 2016 @ 2:25pm

Re:
"There's a lot of armchair lawyering going on here"
Mattshow... internet. Internet, Mattshow.
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drwho28 (profile), 7 Nov 2016 @ 8:21pm

Re: Re: Individuals have an expectation of privacy
hippa violations can only be committed by those who are expected to protect patient confidentiality like doctors, nurses and pharmacists. what the football player can do is bring hippa up as evidence as to what the average person considers the standards regarding a violation of privacy in areas of life considered not newsworthy such as private medical care. and actual harm could be argued in that the records could materially affect his employment.
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