Somehow, the story of a franchise-tagged defensive end losing a finger took a back seat on Wednesday night to the way the story emerged. In the aftermath of the news, first reported by ESPN’s Adam Schefter, that doctors were removing the index finger from the right hand of Giants defensive end Jason Pierre-Paul, terms like “Pierre-Paul” or “JPP” weren’t trending on Twitter.
“HIPAA” was trending on Twitter.
And for good reason. Schefter opted not only to report the fact that the finger was being amputated, but also to post on Twitter an image of the raw medical record -- a medical record that also included information regarding another patient’s procedure.
The four-letter network issued a seven-word statement defending the move on Wednesday night, and Schefter previously said nothing about the situation. He has now addressed the matter with Richard Deitsch of SI.com.
“I know news organizations are not governed by HIPAA laws, but in hindsight I could and should have done even more here due to the sensitivity of the situation,” Schefter told Deitsch. “We’ve got a great group of editors and production staff, and I could have leaned on them even more.”
The contrition is admirable, but the rest of the article doesn’t convey a sense that Schefter would have done things differently even with the benefit of ESPN’s editors and production staff.
“It didn’t look to me as if there was anything else in there that could be considered sensitive,” Schefter said. “NFL reporters report on all kinds of medical information on a daily basis. That’s part of the job. The only difference here was that there was a photo.”
Schefter also explained that the photo was delivered to him unsolicited, which tends to support the theory that the leak came from Pierre-Paul’s camp and not from a hospital employee in Miami, who presumably would have had no way to quickly reach Schefter. Even so, the fact that the record as tweeted by Schefter included information relating to another patient suggests that the initial disclosure wasn’t an authorized release from Pierre-Paul’s chart. And even if the information came from someone who works for Pierre-Paul, anything other than a signed release from Pierre-Paul (who at the time was in surgery) makes the hospital vulnerable to a HIPAA violation and an invasion of privacy claim.
These complications underscore the point we’ve made from the get go. ESPN gained nothing by publishing the medical record. No one was going to doubt Schefter. Instead, others in the media would have scrambled to confirm the report, with a stream of tweets like this: “As @AdamSchefter said, JPP is having his right index finger amputated.”
So why post the image of the medical record?
"[I]n 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 told Deitsch.
Actually, the “ultimate supporting proof” would have been video of the surgery itself, and some have joked that this will be the next step down the slippery slope of disclosing medical information. Which serves only to underscore the point that “ultimate supporting proof” really isn’t needed in these situations.
If anyone had doubted Schefter’s initial report, the “ultimate supporting proof” would have come via the string of confirmations on Twitter and elsewhere. Absent that, the “ultimate supporting proof” wouldn’t have been a medical record containing sensitive and private information about Pierre-Paul and another patient but the fact that Pierre-Paul eventually would have been seen in public with four fingers on his right hand.
It’s good that Schefter told his story, albeit to a friendly ear. But the questions, the answers, and the paragraph of post-interview analysis don’t address the core question of why it was necessary to supplement the information being reported with a photo of a medical record containing the information. They also don’t address the fact that medical information regarding another patient appeared on the photo.
Those are questions that eventually may be addressed in court, regardless of who the specific defendants (and plaintiffs) may be.