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What a Freak Injury to an NFL Star Has Taught Us About HIPAA, Patient Privacy, and Journalism Ethics

July 14, 2015
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Whenever I hear about a sports story that I can tie into healthcare IT, my ears perk up and my eyes widen. So when I read last week about how a star defensive end of the National Football League’s (NFL) New York Giants sustained injuries to his finger in a fireworks accident over the July 4th weekend—and how acclaimed football reporter Adam Schefter tweeted an image of the player’s raw medical record—I quickly became fascinated with this story. After all, it’s not often that you see “HIPAA” trending on Twitter when it involves a pro football player.

First, some background: on July 8, Schefter, an NFL reporter for over a decade and reporter at ESPN since 2009, tweeted out medical charts of Giants player Jason Pierre-Paul, 26, who had his right index finger amputated at the Miami, Fla.-based Jackson Memorial Hospital after a fireworks accident on July 4. In his tweet, Schefter said that ESPN obtained the medical records that proved Pierre-Paul indeed had his finger amputated.

Of course, everyone on social media quickly became an expert on the Health Insurance Portability and Accountability Act (HIPAA). I actually became quite amused looking at some of the things people were tweeting about the issue, recapped nicely in this Washington Post piece. I was fairly certain that most of the people calling for Schefter to lose his job over the tweet had no idea who is governed by HIPAA and what it protects in regards to patient privacy.

After reading through a lot of analysis over the past week, I had two key questions in my mind: 1) What did Schefter have to gain by posting an image of the medical report? and 2) Was this image released by an actual hospital employee or someone else? Taking a deeper look inside HIPAA laws, news organizations are not governed by them. A simple search on the U.S. Department of Health and Human Services (HHS) website verifies that health plans, healthcare providers, and healthcare clearinghouses are the groups that are covered by the privacy rule, and are subject to penalties if they release medical information without the patient’s consent, which sources say Pierre-Paul did not give. However, this does not apply to Schefter, a news reporter.

As the above-mentioned Post article says, “Protection for the media isn’t open-ended. News outlets cannot assist leakers in carrying out illegal recordings or snatching medical records in violation of HIPAA. But if they passively receive the information, they’re all set. ‘As long as ESPN did nothing to procure the documents or aid and abet in their procurement — as long as its hands are clean, as it were — ESPN is in the free and clear,’” notes via e-mail Clay Calvert, a University of Florida professor often consulted by the Erik Wemple Blog.

Before I completely clear Schefter of any blame, I should admit that the tweet was at the minimum, intrusive. Was it necessary for Schefter to post it? Why couldn’t he simply report the truth without including an image of the medical record? Schefter took to task answering these questions in a recent interview with Richard Deitsch, a sports media writer for Sports Illustrated.  Schefter was asked why he posted Pierre-Paul’s medical charts, to which he responded with:

“This was a public figure and franchise player involved in a widely speculated accident with potential criminal behavior in which there was a cone of secrecy that surrounded him for five days that not even his own team could crack. This wasn’t as if some player were admitted to the hospital with a secret illness or disease—we’ve seen those cases over the years, as recently as this past year even. This one was different and unique for a variety of reasons. The extent of his injuries were going to come to light, maybe that day or later that week, but soon. They’re horrific injuries, incredibly unfortunate for the player. But in a day and age in which pictures and videos tell stories and confirm facts, in which sources and their motives are routinely questioned, and in which reporters strive to be as accurate as possible, this was the ultimate supporting proof.”

Schefter also added that he never once requested a single image from anyone at any time; rather they came to him. What’s more, he said in the interview that he could have leaned on ESPN’s editors and production staff more for advice. He said, “Sometimes in the fast-paced news world we live in, it’s easy to forget you should lean on the knowledge and experience of the people surrounding you.”