Robert James Posted February 25, 2016 Posted February 25, 2016 (edited) Thanks for your info! Your case against Cox sounded like slander as the radio guy stated something he likely knew was not true. In this case, the injury suffered by JPP (by his own "hand") was well known publicly before Schefter showed the picture and recprds. Any emotional distress JPP was suffering or suffered was already in progress---and was self inflicted (I couldn't resist) embarrassment. The guy blew his hand apart. Schefter later showed medical records of his blown up hand, and a report of the blown up hand. Anyone who sees JPP sees this injury--it is not hidden. Multiple pictures were psted in the following months by others--including JPP. My pleasure. It's fun to be able to weigh in on something I know more about than football. Trying here to answer both Mr. WEO and Hopeful. The other individual could bring his/her own suit. They also might be joined in the JPP suit because it sounds like a single act of publication causing harm to more than one person. I'm not sure JPP's seclusion would affect the legitimate public interest/concern issue. It certainly would be relevant to whether the facts disclosed were private. I could see a plaintiff's lawyer making an argument that graphic photos of an injury reveal something private, offensive and harmful beyond the mere reporting of the fact of the injury. There was a case in the state of Washington in the late 90's in which a family sued over the publication of a deceased child's autopsy photos. The fact of the death was certainly public, but the publication of the gruesome photos still caused emotional harm to the survivors. The cause of action there was infliction of emotional distress, which invasion of privacy plaintiff's often throw in to cover their bases. JPP might do that here as well. I think the impunity of the press angle could have a big effect on the how a judge/ jury would view the case. Judges are human, and if they feel a basic sense of injustice on one issue, it may lead them to give more leeway to the plaintiff on another. They, like you, might want the case to go to a jury. However, the outrageous nature of the act would certainly support the infliction of emotional distress theory, which requires the harmful conduct to be beyond what should be tolerated in a civilized society (that is actually very close to how the legal requirement is expressed). I think the subsequent publications could be argued as some sort of mitigation of damages -- the theory would be that the injury was inevitable. I would argue that the person who causes the first harm shouldn't get a pass because he inspired others to do the same. However, if JPP published the same gruesome photos, it might undercut the assertion that the act of publication was offensive and beyond the bounds of decency. Still, a third party doing it in the first instance, and the plaintiff doing it later --maybe to clarify the pubic record now that the cat is out of the bag -- are different things. Edited February 25, 2016 by Robert James
Mr. WEO Posted February 25, 2016 Posted February 25, 2016 My pleasure. It's fun to be able to weigh in on something I know more about than football. Trying here to answer both Mr. WEO and Hopeful. The other individual could bring his/her own suit. They also might be joined in the JPP suit because it sounds like a single act of publication causing harm to more than one person. I'm not sure JPP's seclusion would affect the legitimate public interest/concern issue. It certainly would be relevant to whether the facts disclosed were private. I could see a plaintiff's lawyer making an argument that graphic photos of an injury reveal something private, offensive and harmful beyond the mere reporting of the fact of the injury. There was a case in the state of Washington in the late 90's in which a family sued over the publication of a deceased child's autopsy photos. The fact of the death was certainly public, but the publication of the gruesome photos still caused emotional harm to the survivors. The cause of action there was infliction of emotional distress, which invasion of privacy plaintiff's often throw in to cover their bases. JPP might do that here as well. I think the impunity of the press angle could have a big effect on the how a judge/ jury would view the case. Judges are human, and if they feel a basic sense of injustice on one issue, it may lead them to give more leeway to the plaintiff on another. They, like you, might want the case to go to a jury. However, the outrageous nature of the act would certainly support the infliction of emotional distress theory, which requires the harmful conduct to be beyond what should be tolerated in a civilized society (that is actually very close to how the legal requirement is expressed). I think the subsequent publications could be argued as some sort of mitigation of damages -- the theory would be that the injury was inevitable. I would argue that the person who causes the first harm shouldn't get a pass because he inspired others to do the same. However, if JPP published the same gruesome photos, it might undercut the assertion that the act of publication was offensive and beyond the bounds of decency. Still, a third party doing it in the first instance, and the plaintiff doing it later --maybe to clarify the pubic record now that the cat is out of the bag -- are different things. The publication of a dead child's autopsy photos are clearly emotionally damaging. But here this is publishing an image of what anyone can see now at any time. The injury wasn't "intimate" (for lack of a better word) in nature or anatomical location. Leaving aside the natural tendency to lash out at "the media", as a juror, I would have trouble concluding that he suffered emotional damage at the publication of the actual injury that was already widely reported (although not necessarily accurately). I would also base my significant doubt as a juror on the timing of the lawsuit. If he was harmed immediately by the release of this info, why wait 8 months to file suit? Why claim now, since he is healed and back playing for the Giants with a very public injury, that back then you suffered emotionally from this act? A jury would probably nail the defendant, but I doubt it would be on the merits of the claimed damages--it would be because they feel it wasn't the right thing for Schefter to do.
3rdand12 Posted February 25, 2016 Posted February 25, 2016 where do you find this stuff? Holy Smoke! My pleasure. It's fun to be able to weigh in on something I know more about than football. Trying here to answer both Mr. WEO and Hopeful. The other individual could bring his/her own suit. They also might be joined in the JPP suit because it sounds like a single act of publication causing harm to more than one person. I'm not sure JPP's seclusion would affect the legitimate public interest/concern issue. It certainly would be relevant to whether the facts disclosed were private. I could see a plaintiff's lawyer making an argument that graphic photos of an injury reveal something private, offensive and harmful beyond the mere reporting of the fact of the injury. There was a case in the state of Washington in the late 90's in which a family sued over the publication of a deceased child's autopsy photos. The fact of the death was certainly public, but the publication of the gruesome photos still caused emotional harm to the survivors. The cause of action there was infliction of emotional distress, which invasion of privacy plaintiff's often throw in to cover their bases. JPP might do that here as well. I think the impunity of the press angle could have a big effect on the how a judge/ jury would view the case. Judges are human, and if they feel a basic sense of injustice on one issue, it may lead them to give more leeway to the plaintiff on another. They, like you, might want the case to go to a jury. However, the outrageous nature of the act would certainly support the infliction of emotional distress theory, which requires the harmful conduct to be beyond what should be tolerated in a civilized society (that is actually very close to how the legal requirement is expressed). I think the subsequent publications could be argued as some sort of mitigation of damages -- the theory would be that the injury was inevitable. I would argue that the person who causes the first harm shouldn't get a pass because he inspired others to do the same. However, if JPP published the same gruesome photos, it might undercut the assertion that the act of publication was offensive and beyond the bounds of decency. Still, a third party doing it in the first instance, and the plaintiff doing it later --maybe to clarify the pubic record now that the cat is out of the bag -- are different things. Thanks for your qualified input. Always a pleasure to expand my knowledge. I enjoy these details from you and some others here !!
Maury Ballstein Posted February 25, 2016 Posted February 25, 2016 I hope he blows this thing up! CBF Low blow. So dirty. Ha
Saint Doug Posted February 25, 2016 Posted February 25, 2016 Who Must Follow These Laws We call the entities that must follow the HIPAA regulations "covered entities." Covered entities include: Health Plans, including health insurance companies, HMOs, company health plans, and certain government programs that pay for health care, such as Medicare and Medicaid. Most Health Care Providersthose that conduct certain business electronically, such as electronically billing your health insuranceincluding most doctors, clinics, hospitals, psychologists, chiropractors, nursing homes, pharmacies, and dentists. Health Care Clearinghousesentities that process nonstandard health information they receive from another entity into a standard (i.e., standard electronic format or data content), or vice versa http://www.hhs.gov/hipaa/for-individuals/guidance-materials-for-consumers/index.htmlBased on this chart it appears that ESPN would not be a covered entity https://www.cms.gov/Regulations-and-Guidance/HIPAA-Administrative-Simplification/HIPAAGenInfo/Downloads/CoveredEntitycharts.pdf This is all correct. Schefter is only guilty of being a dick and ESPN acted with poor judgement letting him report this information. Nothing criminal was done here though. The publication of a dead child's autopsy photos are clearly emotionally damaging. But here this is publishing an image of what anyone can see now at any time. The injury wasn't "intimate" (for lack of a better word) in nature or anatomical location. Leaving aside the natural tendency to lash out at "the media", as a juror, I would have trouble concluding that he suffered emotional damage at the publication of the actual injury that was already widely reported (although not necessarily accurately). I would also base my significant doubt as a juror on the timing of the lawsuit. If he was harmed immediately by the release of this info, why wait 8 months to file suit? Why claim now, since he is healed and back playing for the Giants with a very public injury, that back then you suffered emotionally from this act? A jury would probably nail the defendant, but I doubt it would be on the merits of the claimed damages--it would be because they feel it wasn't the right thing for Schefter to do. Well said.
YoloinOhio Posted February 26, 2016 Author Posted February 26, 2016 @profootballtalk Pierre-Paul lawsuit against Schefter and ESPN cites specific Florida statute regarding medical records http://profootballtalk.nbcsports.com/2016/02/25/pierre-paul-lawsuit-cites-specific-florida-statute-on-medical-records/
Beef Jerky Posted February 26, 2016 Posted February 26, 2016 http://nypost.com/2016/02/24/jpp-sues-espn-adam-schefter-for-posting-his-medical-records/ JPP needs money.
Hapless Bills Fan Posted February 26, 2016 Posted February 26, 2016 (edited) My pleasure. It's fun to be able to weigh in on something I know more about than football. Trying here to answer both Mr. WEO and Hopeful. The other individual could bring his/her own suit. They also might be joined in the JPP suit because it sounds like a single act of publication causing harm to more than one person. I'm not sure JPP's seclusion would affect the legitimate public interest/concern issue. It certainly would be relevant to whether the facts disclosed were private. I could see a plaintiff's lawyer making an argument that graphic photos of an injury reveal something private, offensive and harmful beyond the mere reporting of the fact of the injury. There was a case in the state of Washington in the late 90's in which a family sued over the publication of a deceased child's autopsy photos. The fact of the death was certainly public, but the publication of the gruesome photos still caused emotional harm to the survivors. The cause of action there was infliction of emotional distress, which invasion of privacy plaintiff's often throw in to cover their bases. JPP might do that here as well. I think the impunity of the press angle could have a big effect on the how a judge/ jury would view the case. Judges are human, and if they feel a basic sense of injustice on one issue, it may lead them to give more leeway to the plaintiff on another. They, like you, might want the case to go to a jury. However, the outrageous nature of the act would certainly support the infliction of emotional distress theory, which requires the harmful conduct to be beyond what should be tolerated in a civilized society (that is actually very close to how the legal requirement is expressed). I think the subsequent publications could be argued as some sort of mitigation of damages -- the theory would be that the injury was inevitable. I would argue that the person who causes the first harm shouldn't get a pass because he inspired others to do the same. However, if JPP published the same gruesome photos, it might undercut the assertion that the act of publication was offensive and beyond the bounds of decency. Still, a third party doing it in the first instance, and the plaintiff doing it later --maybe to clarify the pubic record now that the cat is out of the bag -- are different things. Thanks again, Robert! Much obliged. I don't believe JPP published any gruesome photos. He published photos of himself working out post-recovery, in which his hand with the amputated finger is clearly visible. It is also possible to observe that JPP is missing a finger in any photo now taken of him which includes his hand. My point about seclusion was to WEO's point that essentially, what's the big deal, Schefter didn't publish anything that didn't become public knowledge of anyone looking at JPP today? Not at all speaking from a legal standpoint, just from my personal POV - human beings need time to process and come to terms with serious life events. It's JPP's body. It's JPP's medical treatment. When he is through processing and goes into the gym and out in public, sure, it's public knowledge. But it's up to JPP to chose his time to go public, not to have it forced on him by having his private medical information published on Twitter and ESPN. @profootballtalk Pierre-Paul lawsuit against Schefter and ESPN cites specific Florida statute regarding medical records http://profootballtalk.nbcsports.com/2016/02/25/pierre-paul-lawsuit-cites-specific-florida-statute-on-medical-records/ Oh, very nice. So that's why they filed in FL (in addition to that being where JPP was treated): "Section 456.057(11) states that a third party who receives a patient’s medical record “is prohibited from further disclosing any information in the medical record without the expressed written consent of the patient or the patient’s legal representative.” Although the balance of Section 456.057(11) seems to suggest that the prohibition applies where the disclosure to a third party was made legally, a third party who obtained the medical record improperly arguably should not receive any sort of implied immunity to re-publish the document. No need to debate about public figures and public interest. Even if JPP legally shared the documents with Schefter (which he did not), he's breaking the law by disclosing without written consent. He also alleges invasion of privacy, as speculated here. Given that info, I think he's got Schefter and ESPN lined up in his sights and ranged in. BAM! Sic 'em, Caesar! The publication of a dead child's autopsy photos are clearly emotionally damaging. But here this is publishing an image of what anyone can see now at any time. The injury wasn't "intimate" (for lack of a better word) in nature or anatomical location. Leaving aside the natural tendency to lash out at "the media", as a juror, I would have trouble concluding that he suffered emotional damage at the publication of the actual injury that was already widely reported (although not necessarily accurately). I would also base my significant doubt as a juror on the timing of the lawsuit. If he was harmed immediately by the release of this info, why wait 8 months to file suit? Why claim now, since he is healed and back playing for the Giants with a very public injury, that back then you suffered emotionally from this act? A jury would probably nail the defendant, but I doubt it would be on the merits of the claimed damages--it would be because they feel it wasn't the right thing for Schefter to do. Don't worry, with those views, the plaintiff's attorney would exclude you whilst empaneling the jury Edited February 26, 2016 by Hopeful
Billsmovinup Posted February 26, 2016 Posted February 26, 2016 But technically, and I am not a lawyer, I believe as far as HIPAA is concerned, it's on the hospital worker for disclosing the protected health information, not ESPN for broadcasting it. I would assume his attorneys know the law. If there is no legal liability on ESPN/Schefters part they would be morons for filing this suit.
Hapless Bills Fan Posted February 26, 2016 Posted February 26, 2016 (edited) This is all correct. Schefter is only guilty of being a dick and ESPN acted with poor judgement letting him report this information. Nothing criminal was done here though. This is a civil, not a criminal suit. So "nothing criminal" is not the question. It's also not a suit alleging violation of HIPAA I would assume his attorneys know the law. If there is no legal liability on ESPN/Schefters part they would be morons for filing this suit. Scroll up and read more of the thread. There's a specific Florida law prohibiting health care info disclosed to a 3rd party from being further disclosed without written consent There is also "invasion of privacy". Look for the posts by Robert James, who has expertise here - this might be debatable, but the Florida law looks cut-and-dried Edited February 26, 2016 by Hopeful
Mr. WEO Posted February 26, 2016 Posted February 26, 2016 Thanks again, Robert! Much obliged. I don't believe JPP published any gruesome photos. He published photos of himself working out post-recovery, in which his hand with the amputated finger is clearly visible. It is also possible to observe that JPP is missing a finger in any photo now taken of him which includes his hand. My point about seclusion was to WEO's point that essentially, what's the big deal, Schefter didn't publish anything that didn't become public knowledge of anyone looking at JPP today? Not at all speaking from a legal standpoint, just from my personal POV - human beings need time to process and come to terms with serious life events. It's JPP's body. It's JPP's medical treatment. When he is through processing and goes into the gym and out in public, sure, it's public knowledge. But it's up to JPP to chose his time to go public, not to have it forced on him by having his private medical information published on Twitter and ESPN. Oh, very nice. So that's why they filed in FL (in addition to that being where JPP was treated): "Section 456.057(11) states that a third party who receives a patient’s medical record “is prohibited from further disclosing any information in the medical record without the expressed written consent of the patient or the patient’s legal representative.” Although the balance of Section 456.057(11) seems to suggest that the prohibition applies where the disclosure to a third party was made legally, a third party who obtained the medical record improperly arguably should not receive any sort of implied immunity to re-publish the document. No need to debate about public figures and public interest. Even if JPP legally shared the documents with Schefter (which he did not), he's breaking the law by disclosing without written consent. He also alleges invasion of privacy, as speculated here. Given that info, I think he's got Schefter and ESPN lined up in his sights and ranged in. BAM! Sic 'em, Caesar! Don't worry, with those views, the plaintiff's attorney would exclude you whilst empaneling the jury It was public knowledge that JPP blew his hand up and would likely need amputation almost immediately after this accident happened. It was public knowledge at that point. Only the specifics of the injury were in question. I don't think this has anything to do with JPP's need for "processing"--it seems clear that he was hiding the extent of the injury from the Giants as he figured they would pull his 14.8 million franchise offer him if they saw his hand. The proof of this is his refusal to let Giants doctors to examine him for months after the accident. In fact, he waited until after Sept 5th, when rosters are finalized before he met with the Giants. And when they did see it--the Giants declared him unfit to play. JPP knew the Giants were not going to pay him for games he missed because of an injury of stupidity. So, this "emotional distress" claim can be seriously punctured by a defense attorney on cross, I would think. JPP's hiding if the injury was a financial one. Not sure if it matters though. Also, Schefter posted a picture of the OR schedule with JPPs name and procedure on it (there is no other patient's name in the picture), not a picture of the hand itself. Also, if Schefter received the records in New York, and posted them in NY, did he break a Florida statute?
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