Anonymous Medical Blogger Sued for Defamation and Violating HIPAA

An anonymous medical blogger in Texas is being sued by a hospital for defamation and for releasing patient information:

An unlikely Internet frontier is Paris, Texas, population 26,490, where a defamation lawsuit filed by the local hospital against a critical anonymous blogger is testing the bounds of Internet privacy, First Amendment freedom of speech and whistle-blower rights.

A state district judge has told lawyers for the hospital and the blogger that he plans within a week to order a Dallas Internet service provider to release the blogger's name. The blogger's lawyer, James Rodgers of Paris, said Tuesday he will appeal to preserve the man's anonymity and right to speak without fear of retaliation.

Rodgers said the core question in the legal battle is whether a plaintiff in a lawsuit can "strip" a blogger of anonymity merely by filing a lawsuit. Without some higher standard to prove a lawsuit has merit, he said, defamation lawsuits could have a chilling effect on Internet free speech.

"Anybody could file a lawsuit and say, 'I feel like I've been defamed. Give me the name,' " Rodgers said.

...

The blogger identifies himself under pseudonyms of fac_p and Frank Pasquale. Most blog commenters -- some of whom appear to be hospital employees -- are anonymous.

In June, Essent filed a defamation lawsuit in state district court against "John Does 1-10" for postings and comments made on the Paris blog, which the suit says has had 169,272 page views "from sites throughout the United States and the rest of the world" since it began. The lawsuit also claims patient privacy was violated under the federal Health Insurance Portability and Accountability Act, HIPPA.

"We understand and respect the blogger and general public's right to voice their opinions about PRMC and welcome constructive criticism," the company said in a statement issued this week.

"However, the method used by the defendants is wholly unacceptable. It is a cowardly infringement on the confidentiality rights of PRMC patients and an unwarranted attack on the reputation of the hospital."

The company claims in one instance, the blog posted enough information on a patient death to identify the patient before the family was notified.

Essent asked District Judge Scott McDowell to order a Dallas Internet Service Provider to release the blogger's name. Federal law bars an ISP from releasing the name of a customer without a court order. McDowell on Monday notified lawyers for Essent and for the blogger that he will be issuing such an order within the next week.

"The only thing this might do is silence an open criticism of Essent's method of doing business," fac_p said on the blog in reaction to the judge's notice.

Fac_p said on his blog that what Essent really wants is the names of hospital employees who have posted comments on his site or given him information. Rodgers said these employees could be considered whistle-blowers.

Read the whole thing.

The blog in question is here.

So here's my thing. I don't know whether this blog released patient information and/or committed defamation. I don't know whether the hospital in question has committed the misdeeds that this guy alleges.

What I do know is that whether you are blogging anonymously or not, you need to be very careful when talking about patients. You need to be very careful because once some piece of personal information is on the web it never goes away, and blogging anonymously is no protection when it comes to divulging patient information.

Because I am as concerned about this as anyone else, I have a couple policies with patient information and talking about my employer:

• 1) I think it is wiser not to blog anonymously. Many people probably disagree with me about that, but I think that blogging anonymously gives you a false sense of security that you can say things that you otherwise wouldn't say. And it is this false sense of security that gets people into trouble because you think that you can totally trash your boss and get away with it.
• 2) I think it is a good policy to only say things on the Internet that you would say to someone in person. Even if I was being critical of my employer to a total stranger, I would try and be tactful because you never know when a comment would come back to haunt you.
• 3) I avoid talking about individual patients. It is just a dangerous area. It is significantly easier to offer medical commentary about a case that is already in the news or about a scientific paper than going through getting patient consent. Maybe this is a self-protective strategy that prevents me from talking about interesting cases, but when it comes to patient privacy I think it is better to err on the side of caution.

Now some of you may think I am being naive here. After all, this guy is arguing that he is a whistle blower, and frankly there is no way to tactfully be a whistle blower because you are saying things that another party really, really does not want to get out.

Think about it this way though. One, if you go through more established channels for whistle blowing -- such as reporting the hospital to the print media or the authorities, it is much easier to claim protection under whistle-blower and anti-retaliation statutes. If instead you blog anonymously or comment anonymously on chat boards and the like, you are operating on the fringes of legal protection. Maybe the judge rules in your favor or maybe he doesn't; you can't predict the outcome. Two, there is a stigma attached to blogging anonymously or commenting anonymously. I feel like people are very suspicious of people who won't attach their name to their beliefs, and you are much more likely to be listened to if you are forthright.

My conclusion about this case is that while I would certainly like the blogger to be protected, I think that you could reasonably predict that this is exactly what would happen.

So here are my questions for commenters:

Does anyone read this blog? Do the blogger's criticisms of the hospital have merit? Do the hospital's charges against the blogger?

Do you feel like there is a stigma attached to anonymous bloggers? Do you think it is better to blog anonymously so that you can be more controversial?

Legal people, what do you think the outcome of this case will be? Will the judge find that the blogger has legal protection?

Hat-tip: Slashdot