Holtz & Reed Wins Declaratory Relief for Steward Health Care – Court Releases Steward from HIPAA Privacy Restrictions to Rebut Patient Allegations in Prospective Boston Globe News Story

Posted on: Wednesday, September 3rd, 2014

On August 21, 2014, Herbert Holtz and Patrick Foley of Holtz & Reed won an unprecedented victory in Suffolk Superior Court on behalf of Steward Health Care System LLC.  The Court’s ruling, which the judge noted had no precedent, creates important new law releasing a health care provider from its HIPAA restrictions to rebut potentially defaming disclosures by and among third parties – here, in a case where HIPAA was being misused as a sword instead of a shield.

The controversy began when The Boston Globe asked Steward for comment on allegations of inadequate care levied against Steward’s hospitals by a mentally ill man.  Bound by HIPAA’s privacy restrictions, Steward was prohibited from comment and unable to respond to the allegations.  The Globe, nevertheless, informed Steward that it intended to publish the one-sided exposé on the front page of its August 24th “Sunday Edition.”

Acting quickly, H&R filed a declaratory action seeking to free Steward from HIPAA’s restraints for the purpose of answering the claims reported to the Globe. Mindful of HIPAA’s “minimum necessary” requirement, H&R also asked that the Globe be ordered to disclose the information it had already been provided, as this would inform the permissible scope of its response.

In the pleadings filed four days before the prospective story’s publication, H&R argued, on behalf of Steward, that the declaratory relief sought was available under HIPAA by virtue of 45 C.F.R. § 164.512(e), which provides that “[a] covered entity may disclose protected health information in the course of any judicial or administrative proceeding … [i]n response to an order of a court.”  At a hearing held in Suffolk Superior Court the next day, Judge Jeffrey Locke questioned whether HIPAA’s drafters had contemplated an Order authorizing the release of patient information by a healthcare provider in order to protect the provider’s reputation?  The Court further observed that the exception created by 45 C.F.R. § 164.512(e) is typically implicated “in connection with some official litigation.”

Arguing for Steward, Herbert Holtz responded that “when the Congress was speaking to the phrase, ‘Any judicial proceeding,’ it did not say … an active action. It did not say or define or limit the kind of action or existing proceeding.”  The Court then noted that, in this instance, Steward had created the judicial proceeding where one did not otherwise exist.  “There is one now, your Honor,” Holtz answered, “seeking a dec-action for which we have rights under the statute to speak to information that has already been disclosed.”

After hearing opposing argument from the Globe, the Court conducted a colloquy in a closed courtroom with the patient in question, whom Steward had named as a “Necessary Party” in the pleadings, using a John Doe, so that he could be served with notice and given the opportunity to be heard.  Though both the Globe and John Doe expressed a collective desire to preserve the prospective story’s then-existing narrative, the Court determined that Steward had an equitable right to be heard.

Specifically, the Court ruled:

On the particular facts and circumstances presented here, where the patient has publicly disseminated aspects of medical care or treatment by a provider, the provider is relieved of the privacy restrictions found in 45 C.F.R. §§ 164.502 et seq., to the extent the provider may confirm or deny the particular allegation made by the patient, and may state its opinion as to the adequacy of the medical care provided …

Therefore, my narrowly tailored declaration and order is as follows:  under Count I of the Complaint, if the newspaper reporter inquires about a particular event, diagnosis, or situation that they know of as a result of the patient’s disclosure, the plaintiff is authorized to confirm or deny the event, diagnosis or situation, and may comment broadly about whether the information obtained is complete or incomplete, accurate or inaccurate, and may comment about the adequacy of the care provided.

Following the Court’s ruling, Herbert Holtz issued the following statement:

HLH_b&wSteward Healthcare wanted to ensure the Globe publish an accurate story demonstrating the high level of care it delivers to its patients.  When it became clear that the Globe intended to run a story with the full knowledge that it was one-sided and incomplete, Steward asked us to find a way to let them comment on the important issue of the delivery of healthcare services to those with mental health issues.  HIPAA is intended to be a shield for patients – not a sword to be used against a healthcare provider.  Since the patient who was the subject of the Globe article not only permitted, but, in fact, encouraged the Globe to splash his medical information on the front pages of its papers, it would fly in the face of logic that in writing HIPAA, Congress intended to permit a patient hide behind its protections.  We were very pleased that the judge agreed with us.  The story, as written, containing allegations of physical abuse by Steward caregivers, took on a very different look once the Globe was forced to include the full record.  For that record revealed that far from being a victim, the patient had engaged in physical abuse against his caregivers, as well as threatening bodily harm and even death in some instances. 

We consider this to be an important win for all healthcare institutions faced with those who would misuse HIPAA for their own means.  We got the exact relief we sought when going to court.  Our client was released from its HIPAA obligations of confidentiality and was allowed to respond to claims about a former patient’s treatment posed by the Globe and about to be published.  As important, the Globe was warned by the Court that if it proceeded to publish the story as written, it proceeded at its peril and at the risk of a defamation suit.  As was self-evident from the story ultimately published, the Globe heeded the Court’s warning and our client’s interests were preserved.

 

Holtz & Reed has extensive experience representing and defending health care institutions.  For more information on our practice, please contact our office at (617) 720-0501.

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