By Fletcher Brown, Esq.
Earlier this month, Jason Pierre-Paul, a New York Giants defensive end, filed a lawsuit in Florida state court against reporter Adam Schefter and his employer ESPN, for inappropriately posting his medical records on social media last summer.
The lawsuit, filed in Circuit Court in Dade County, Florida (Miami), alleges that Pierre-Paul’s privacy was violated — as was the state’s medical records statute — by the ESPN reporter, who published Pierre-Paul’s operative report and medical record after the player severely injured his right hand in a fireworks accident on July 4.
According to Pierre-Paul’s lawyers, Mitchell Schuster and Kevin Fritz, Schefter “improperly obtained” the defensive end’s medical chart, which showed he had his right index finger amputated at Jackson Memorial Hospital in Miami, Florida.
According to Florida statute 456.057(7)(a), which states in pertinent part:
“Except as otherwise provided in this section and in section 440.13(4)(c) [regarding certain workers’ compensation administrative matters], such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient, the patient’s legal representative, or other health care practitioners and providers involved in the patient’s care or treatment, except upon written authorization from the patient.”
As such, a patient’s medical records cannot be given to or discussed with anyone not involved in their care — something the suit alleges Schefter violated. More specifically, Schefter posted a photo of Pierre-Paul’s chart on July 8, 2015 on Twitter, where he has more than 4.5 million followers.
In a 2015 interview with Sports Illustrated, Schefter said he “could have and should have done even more to protect (Pierre-Paul’s) medical records,” according to the lawsuit. “In trying to be thorough and accurate, we delivered that news as soon as possible with the supporting proof …,” he told SI. “To me, that’s doing my job.”
The lawsuit further states, “[t]his action arises out of ESPN reporter Schefter’s blatant disregard for the private and confidential nature of Plaintiff’s medical records …. all so Schefter could show the world that he had ‘supporting proof’ of a surgical procedure.” The suit also states that while Pierre-Paul’s amputation “may have been of legitimate public concern, the chart itself was not.”
Jackson Memorial Hospital in Miami, Florida, the facility where the procedure was performed, took swift action, immediately launching an investigation. Hospitals are governed by a federal medical privacy law known as the Health Insurance Portability and Accountability Act (HIPAA), which requires that hospitals keep patient information confidential, unless they have the patient’s consent. Earlier this year the hospital fired two employees for “inappropriately” gaining access to Pierre-Paul’s files.
The HIPAA does not provide a private cause of action that Pierre-Paul could use for his lawsuit. Rather, HIPAA allows a complaint to the federal Health and Human Services Department’s Office of Civil Rights, for regulatory action regarding “covered entities” under HIPAA. Thus Pierre-Paul’s litigation relies on Florida’s state law for medical privacy.
Pierre-Paul rejoined the NFL Giants last season for the final eight games of the 2015 season, and started them all. He managed only one sack and struggled to finish plays with his injured hand heavily wrapped.
After the season, Pierre-Paul had additional surgery on the hand, hoping to improve its flexibility. The Giants have also re-signed Pierre-Paul, who had become a free agent after the season, to a one-year deal earlier this month.
There are obvious lessons to be learned for media outlets and their staff from this incident and its subsequent litigation, including the need for staff education on state medical privacy laws, the federal HIPAA, and common law rights of privacy. The common law right of privacy was recently relied on by ESPN reporter Erin Andrews to successfully win a widely publicized $55 million jury verdict this Spring. Such workforce education on medical privacy issues before a privacy breach occurs could help avoid or mitigate future potential litigation.
Brown is a partner in the national health law firm of Waller Lansden Dortch & Davis, LLP. He has more than 25 years of experience in the health law field with noted expertise around privacy laws, such as HIPAA. He can be reached at fletcher.brown@wallerlaw.com.
