Only an explosive concoction of combustible NFL stupidity, Kafkaesque governmental policy, and Disneyfied sports journalism could make the acronym HIPAA trend on Twitter. God forbid that congressional debates over healthcare legislation could ever become hip enough for social media. It takes an NFL player blowing off a portion of his body to illustrate the thin veil of privacy that actually exists in modern America.
JPP, HIPAA and ESPN is Bad Alphabet Soup
United Airlines, The Wall St. Journal, and Wall Street itself were mysteriously shut down a few days ago; but technology and privacy issues only seem important to the United States when nude pictures of celebrities are leaked or an athlete blows off his finger with fireworks. Americans just forget about the fact that the last two presidents have violated the spirit of the constitution with gross NSA violations. President Bush signed a secret order in 2002 authorizing the National Security Agency to eavesdrop on U.S. citizens and foreign nationals in the United States, despite previous legal prohibitions against such domestic spying. The Obama administration for more than two years permitted the National Security Agency to continue collecting vast amounts of records detailing the email and internet usage of Americans.
Twitter is actually the silver lining that emerges from the plume of smoke that emerged from Jason Pierre-Paul’s unfortunate – and ironic – July 4th celebration. Important questions were grotesquely dissected like JPP’s hand. What right does Adam Schefter and ESPN have to post pictures of JPP’s medical records? Who is responsible for the leak? And what legal consequences will there be?
First, Schefter and ESPN launched the real fireworks on July 8th by tweeting the photo of JPP’s medical record at 6:04 PM EST. We won’t be including a copy of the tweet in this article, but as of this writing it is still there on Schefter’s twitter account, @AdamSchefter.
Michael McCann of Sports Illustrated splashed a trio of prescient legal realities beginning at 6:14 that lit up the Twitterverse like a Roman candle in the deep dark night.
Unless Pierre-Paul consented to disclosure, someone (hospital worker?) violated HIPAA. Max HIPAA penalty: only $50K. https://t.co/ErvzocBonY
— Michael McCann (@McCannSportsLaw) July 8, 2015
A maximum fine of $50K may not be enough of a deterrent to stop a HIPAA violation. And apparently it wasn’t here. https://t.co/Sb1oYRFc5I
— Michael McCann (@McCannSportsLaw) July 8, 2015
HIPAA doesn’t apply to media who obtain medical records of others. Invasion of privacy does, but 1st Amendment offers a good legal defense. — Michael McCann (@McCannSportsLaw) July 8, 2015
Then the Jackson Health System (representing Jackson Memorial Hospital in Miami that treated JPP) launched the grand finale at 7:28 PM:
Jackson Health System takes patient privacy seriously and aggressively investigates any alleged violation.
— JacksonHealthSystem (@jacksonhealth) July 9, 2015
Boom. The show was over. Jason Pierre-Paul’s privacy was grossly violated. HIPAA offers no protection to citizens from media outlets publishing their private medical records. HIPAA does provide for the prosecution of people who leak medical information. That penalty is a $50,000 fine. The First Amendment protects the press from prosecution for violating medical privacy.
Amidst the sorry display of public schadenfreude and HIPAA ignorance there was a multifaceted legal conversation that should have been conducted in 1996 when the law was passed. The issues are as complex as the chemical reaction that occurs when fire meets sodium nitrate.
Now, it’s too late. HIPAA is law. Nobody knows what it means. And if somebody really wants your medical information they’re going to get it. There is a burgeoning black market for medical information. It is worth a lot more money to identity thieves than things like credit card information. Medical data usually includes identifiers like mothers’ maiden names or social security numbers. Medical providers should dedicate resources to adequately protect patients’ information. Do they? One security firm expert describes a realistic and frightening scenario:
“A breach happens at one of these companies. The hackers go direct to that company and say, ‘I have your data.’ The cost of keeping this a secret is X dollars and the companies make the problems go away that way.”
In the case of Jason Pierre-Paul’s detonated digit the price of that information was worth at least $50,000. Who knows? It might be a small price to pay. Sure, JPP will sue the Jackson Health System; but ESPN will be protected by the same constitution that can’t legally protect the average citizen’s most personal information.
Freedom of the press should be protected, but everyone should have limits. It’s a delicate balance that should be debated by voters and Congress. Unfortunately, privacy issues are whispered in the quiet corners of massive bureaucracy. The echoes never reach public discourse.
The website for The Department of Health and Human Services states:
Your Health Information Is Protected By Federal Law
Most of us believe that our medical and other health information is private and should be protected, and we want to know who has this information. The Privacy Rule, a Federal law, gives you rights over your health information and sets rules and limits on who can look at and receive your health information. The Privacy Rule applies to all forms of individuals’ protected health information, whether electronic, written, or oral. The Security Rule is a Federal law that requires security for health information in electronic form.
HIPAA works like a bruised and battered offensive line against a fearsome pass rush full of players with ten fingers. Jason Pierre-Paul is an NFL player and that makes his status far beyond the comprehension of the average citizen. He has celebrity and would have had generational wealth. These are not common things. Common things, however, do include health care. Do you want anybody – including your employer – to know your most personal secrets? Is that fair? It is unfortunate that JPP was stupid enough to spend part of his considerable paycheck on a U-Haul truck full of fireworks that blew off his finger. That’s his problem. Everyone should have a problem with the wanton proliferation of medical information.
Main Photo: EAST RUTHERFORD, NJ – DECEMBER 28: Jason Pierre-Paul #90 of the New York Giants reacts against the Philadelphia Eagles during a game at MetLife Stadium on December 28, 2014 in East Rutherford, New Jersey. (Photo by Alex Goodlett/Getty Images)
