What a Freak Injury to an NFL Star Has Taught Us About HIPAA, Patient Privacy, and Journalism Ethics | Rajiv Leventhal | Healthcare Blogs Skip to content Skip to navigation

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.”

For those who follow the NFL, it would be hard to classify Schefter as anything but a hard-working reporter with great sources and impeccable accuracy. But even so, it’s hard for me to entirely understand the amount to be gained by posting the medical record, especially when the downside is potentially so negative. Not one ounce of me thinks that Schefter did anything intentionally wrong, and the facts bare out that he didn’t break any HIPAA law. However, as even he admitted in the paragraph above, the fast-paced news world of needing to be first and making sure that you will have the information in 140 characters, often with a picture or video, very much played into this. That being said, if I were Schefter, I certainly would have leaned on my bosses and colleagues for advice and a joint decision to be made. Thus is the life of a news reporter in 2015.

Moving onto the hospital employee, or whoever released the photo to Schefter, it will be interesting to see if anyone is even implicated. What we do know is that Pierre-Paul was under the care of Jackson Memorial on July 8 when the picture was published. He was still in surgery at the time.  According to an NJ.com report, it was not originally believed that picture was released by Pierre-Paul or someone from his inner-circle; rather, they planned to take legal action against the hospital. Any claims against the hospital would be made under Florida privacy laws.

However, now reports are suggesting that it is more likely that someone in Pierre-Paul’s camp released the photo to Schefter. This makes some sense—what possible motivation would the employee of the hospital have? Either way, lawsuit or not, it could be very difficult to tell who Schefter’s source is. A report by sports and news commentary site Deadspin mentioned that it talked to a hospital administrator who believes it will be “almost impossible” to figure out who took the pictures and sent them to Schefter.

At the end of the day, this was a pretty big national story that might not generate the conclusion that many people will be looking for. But at the very least, it provides a lesson to many people on the details behind HIPAA and patient privacy. And as a healthcare journalist, I am certainly grateful for that.

Comments or questions? Feel free to respond below or follow me @RajivLeventhal


 


 

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