ESPN, JPP and HIPAA: Can Reporters Be Liable For Revealing PHI?
David Nardolillo’s column in the September issue of Albany County Bar Association Newsletter tackles the issue of reporters’ liability related to protected health information (“PHI”).
Does a news reporter violate the privacy protections of the Health Information Portability and Accountability Act (“HIPAA”) when he broadcasts protected health information (“PHI”) obtained as the result of an improper disclosure by a health care provider? That question was raised in July when ESPN reporter Adam Schefter published the hospital records of Jason Pierre-Paul, a star player for the New York Giants. Putting aside the question of whether, and to what extent, the hospital or its employees may be liable for this disclosure, news agencies and reporters should take a closer look at the legal ramifications of obtaining and publishing PHI. Even though the mainstream media is not subject to HIPAA, there may still be exposure to criminal prosecution in certain situations where news agencies handle improperly released PHI; the United States Department of Justice (“DOJ”) has prosecuted individuals for conspiring with others to violate HIPAA, even though those individuals were not covered entities under HIPAA.
Readers are likely familiar with the basics of the ESPN/Pierre-Paul situation. On July 5, 2015, news reports surfaced that Pierre-Paul, who was in the process of negotiating a large contract extension with the Giants, had injured his hand in a fireworks accident in Miami. Initial reports were sketchy and conflicting; the first reports were that Pierre-Paul had “severely injured” his hand, but ESPN’s Schefter reported that Pierre-Paul’s injuries were “not career threatening.” Not even the Giants knew the full extent of the injuries as team officials were prevented from seeing PierrePaul at Jackson Memorial Hospital in Miami, where he was being treated.
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