Don't Believe Everything You Read in the Funny Papers

Don't Believe Everything You Read in the Funny Papers

by Pamela Jones
Groklaw

March 12 2005

I know a lot of you are aware of stories in the media stating that court-appointed doctors had found Ray Noorda incompetent and that this was the impetus for the Canopy-Yarro settlement. One of the attorneys for Canopy now tells Bob Mims [ http://sltrib.com/business/ci_2605421 ] that is not true at all:

David B. Watkiss, the attorney for Canopy Group, denied published reports that court-appointed physicians had found Noorda to be incompetent. However, he did confirm that "it is a matter of public record that Mr. Noorda suffers from Alzheimer's disease. [But] no court-appointed doctors have found Mr. Noorda incompetent."

Now you know why I suggest just not reading certain journalists, when they prove unreliable over and over again, and why I don't normally link to such phony scoops. I also didn't link to the stories because I couldn't believe the doctors would release that info to anyone but the court, and I didn't see it filed there. There are HIPAA regulations [ http://www.cms.hhs.gov/hipaa/ ], which dictate what doctors and hospitals are allowed to release about someone's medical condition (the Health Insurance Portability and Accountability Act of 1996). I thought the regulations [ http://www.cms.hhs.gov/hipaa/hipaa2/regulations/privacy/finalrule/privruletxt.txt ] would prohibit the doctors from disclosing private medical information to anyone, including the media, without the patient's permission or subject to it being public info already by having been filed with a court and not under seal. That is why I felt uncomfortable with the articles, and I didn't write about them or link to them until I could verify the information one way or another.

HIPAA doesn't cover journalists or everyone, but it does cover health care providers, and if you are curious about how it impacts on journalists, here's an article [ http://www.fac.org/Press/topic.aspx?topic=hipaa_news ] by the FirstAmendmentCenter.org, which seems to take a broad view. From my understanding, for example, I think it would normally be a HIPAA violation in most states for a hospital or doctor to provide medical information to a journalist unless the patient had consented.

And just because journalists are not covered specifically under that law, it doesn't mean they can never be liable if they publish private medical information. Here's an answer [ http://www.rtnda.org/foi/hipaafaq.shtml ] to such a question on a journalism organization's web site's (RTNDA.org, the Radio-Television News Directors Association & Foundation) FAQ on HIPAA:

Q. Are journalists covered entities under HIPAA?
A. No! A journalist who lawfully obtains or discloses protected health information does not violate HIPAA. Remember, however, that just because HIPAA does not apply does not mean that journalists who obtain and disclose medical information may not be liable under (depending on the circumstances) other causes of action, such as invasion of privacy.

That same FAQ explains that patients get to pick whether or not they wish any information about them released:

Q. What is directory information and can it be released to the media under HIPAA?
A. Under HIPAA, hospitals may maintain a directory including a patient's name, location in the hospital, general condition and religious affiliation. If a hospital maintains such a directory, patients must be given the opportunity to object to or restrict the use or disclosure of this information. In no event may information concerning a patient's religious affiliation be released, except to the clergy. Other directory information may be released only if the media or the public asks for the patient by name and only after the patient has been given the opportunity and consented to the release of directory information.

Q. If a patient has opted not to restrict information, what kinds of condition information may be disclosed?

A. If HIPAA privacy standards are met, information, such as general condition information (information that does not communicate specific information about the individual) may be released. . . .

Q. What about patients who are unconscious or otherwise unable to give advance consent for release of their information?

A. In situations where the opportunity to object to or restrict the use or disclosure of information cannot be provided because of an individual's incapacity, a covered entity may use or disclose protected health information if the use and disclosure is: (1) consistent with a prior expressed preference of the individual, if any, that is known to the covered entity; and (2) in the individual's best interest as determined by the covered entity, in the exercise of professional judgment. Both conditions (1) and (2) must apply for a provider to release patient information under HIPAA if the patient is incapacitated.

Q. Is there a HIPAA exemption for public figures or public officials?

A. No.

Laws, of course, are written for the unlawful, those who otherwise will do as they please. You don't really need a law, though, if you just stop and ask yourself a simple question: how would I feel if it happened to me? That made it a no-brainer for me not to link to those articles. I felt it was unkind, so I didn't want to do it, law or no law, not unless it became part of the public court record.

05:38 PM EST