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Decision carves out HIPAA exception for media response

5_neih1027_CaduceusThose who followed the recent high-profile battle between Steward Health Care and The Boston Globe may have been left with the impression that Steward suffered resounding defeat in the Suffolk Superior Court case.

The Globe and its affiliate, Boston.com, characterized Steward’s lawsuit as an “attempt to slap down” impending stories on one man’s journey through the Massachusetts’ mental health system — and claimed wholesale victory when Judge Jeffrey A. Locke rejected Steward’s request to view materials The Globe’s reporter had gathered while writing the three-part series.

Left ignored, however, was an interesting and precedent-setting aspect of Locke’s decision: The judge carved out a new exception releasing a health care provider from the privacy restrictions of the Health Insurance Portability and Accountability Act — or HIPAA — in order to comment to the media.

“[W]here the patient has publicly disseminated aspects of medical care or treatment by a provider, the provider is relieved of the privacy restrictions found in 45 C.F.R. §§ 164.502 et seq., to the extent that the provider may confirm or deny the particular allegation made by the patient, and may state its opinion as to the adequacy of the medical care provided,” Locke wrote, adding later that, “if the newspaper reporter inquires about a particular event, diagnosis, or situation that they know of as a result of the patient’s disclosure, the plaintiff is authorized to confirm or deny the event, diagnosis or situation, and may comment broadly about whether the information obtained is complete or incomplete, accurate or inaccurate, and may comment about the adequacy of care provided.”

While there is disagreement over whether Locke’s ruling can be applied to similar situations in the future — or would even hold up if scrutinized by other courts — lawyers and legal experts agree that it is the first of its kind in the country.

“The health care provider, until now, had their hands tied,” said Steward’s lawyer, Herbert L. Holtz of Boston’s Holtz & Reed. “It was a total victory. Everything we wanted, we got, and it was for the important purpose of providing The Globe with complete information surrounding this patient’s care.”

Holtz argued for the relief under a HIPAA provision that allows a covered entity to “disclose protected health information in the course of any judicial or administrative proceeding … in response to an order of a court.”

When, at a hearing, Locke pointed out that Steward could only argue it fell under that exception because it had filed a lawsuit and created a judicial proceeding where one did not otherwise exist, Holtz argued that Congress had not limited the provision to a certain kind of action or existing proceedings.

Balancing act

Matthew A. Caffrey, an Andover lawyer and chairman of Lawrence General Hospital’s board of trustees, applauded Locke’s ruling, calling it “an important, if limited, step in the right direction to balance the privacy rights of patients with those of the health care provider” when a patient chooses to discuss his or her medical records publicly.

“That only seems fair, in my opinion,” he said in an emailed response to questions.

Jane E. Kirtley, a journalism professor at the University of Minnesota and former director of the Reporters Committee for Freedom of the Press, said she knows of no other rulings like Locke’s.

Kirtley, who is a lawyer, said the only decision that comes close is a 2006 Texas Court of Appeals ruling that HIPAA-protected information sought by a reporter was subject to disclosure under the state’s Public Information Act.

“We’ve seen basically a seismic shift in this country in the ability of the press to get information on matters of public interest because of HIPAA,” Kirtley said, adding that Locke’s decision is “good in the sense that it’s allowing health care providers to say something other than ‘no comment’ when patients are out there making comments on a matter of public concern.”

Miffed that The Globe did not view the decision in the same win-win way, Holtz said Steward’s sole motivation was “to give them all the facts that we presumed they wanted to have.”

The Globe declined to comment for this story through its lawyer, Jonathan M. Albano of Bingham McCutchen in Boston. In a previous statement, however, Globe Editor Brian McGrory called Steward’s lawsuit a “thinly-veiled intimidation tactic against a former patient.”

“The fact that the company dispatched a constable, at dusk, to the house of a man with a history of mental illness is somewhere between appalling and unconscionable,” McGrory said in the statement, referring to the fact that Michael Bourne, the subject of the newspaper series, was served with notice of the matter though he was not named as a defendant in the suit.

Elizabeth N. Mulvey, a medical-malpractice plaintiffs’ attorney, said it is possible that Locke’s ruling will chill the willingness of patients to discuss their care, which, for journalists, could pose a negative flipside to the welcome development of health care providers being allowed to speak more freely.

“I could definitely see someone in a vulnerable position like that not wanting to be attacked in the papers. Theoretically, you would have to consider what’s going to happen if my client talks,” said Mulvey, a partner at Crowe & Mulvey in Boston.

Locke did reject Steward’s request for an order “requiring the Globe to identify and/or produce to the Court and to Steward those portions of [Bourne’s] medical record that [Bourne] has either permitted the Globe to review or authorized it to publish.”

The judge went on to say that “[t]here is no basis for the court to order a newspaper reporter to turn over, to the court or a third party that is part of the putative story, documents, records, or reports that it acquired during its news-gathering function, in order to permit an inspection.”

In an Aug. 21 letter to Albano, Holtz wrote that The Globe had mischaracterized and made “sinister” that aspect of the case as well.

“[A]s you are aware, that request was offered as a tool for narrowing (and defining) the scope of information to which Steward needs to speak, and on which the Globe was asking questions,” Holtz’s letter states. “The judge did not need to reach that subsidiary request:  he was able to define the scope himself — as articulated in the order. There were no rulings today based on elevated constitutional tenets — which your client’s reporting wrongly implies.”

Holtz subsequently filed a motion for clarification, which Locke denied, writing that “the court’s summary decision speaks for itself.”

Implications

Locke described his declaration and order as “narrowly tailored … [o]n the particular facts and circumstances presented here.”

The judge also noted that it would be inappropriate “to authorize a wholesale disclosure of medical information” and prevented Steward from releasing “any medical records or specific medical information.”

“A patient who criticizes a perceived undue delay in an emergency room does not open the door to the hospital’s release of all confidential medical information,” the judge wrote.

Given those caveats and qualifications, lawyers disagree on how influential Locke’s ruling will prove going forward.

“While a ‘barebones’ response was all that was permitted in this case, it will be interesting to see whether, in another case, the court is willing to allow a more detailed defense by the health care provider, if the allegations by the patient are more specific,” said Caffrey, the Lawrence hospital board chairman.

Holtz said other lawyers should be able to cite the case, not only in responding to journalists, but also in rebutting information patients disclose publicly in other ways.

“A growing issue and dilemma for the health care community is patients blogging about their dissatisfaction,” he said.

Boston labor and employment defense lawyer Denise I. Murphy of Rubin & Rudman said she would not hesitate to use Locke’s decision in other contexts as a foothold to seek the ability to respond outside a lawsuit to statements plaintiffs make publicly. As an example, she cited discussing personnel records that otherwise would be shielded.

“They can do that in conjunction with a lawsuit,” Murphy said of defendants, “but lawsuits take a long time and often are sensationalized in the media. … Plaintiffs can say anything they want, and often do, even if they are outright misrepresentations.”

Locke’s ruling opens the door to “a balanced discourse,” Murphy added.

Noting that Locke essentially limited Steward to providing confirmations and denials, Mulvey cautioned health care providers against “over-reading the decision.”

“I don’t think there’s a good way to determine when and to what extent the privilege is waived,” she said. “I would be very cautious if I were advising health care providers about using that as any kind of blanket authority to respond.”

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