Tweet Showing Giants Star's Surgical Record Raises HIPAA And Ethical Concerns


NEW YORK (WFAN) — Sports Illustrated legal analyst Michael McCann says Jason Pierre-Paul has a number of options after an image of his hospital record was tweeted by an ESPN reporter.

A debate over Pierre-Paul’s right to privacy erupted Wednesday night when Adam Schefter posted photographic evidence on Twitter that the New York Giants defensive end had his right index finger amputated, a result of a July 4 fireworks mishap in Florida.

“My first thought was somebody broke HIPAA,” McCann told WFAN’s Kim Jones and Marc Malusis on Thursday. “Unless Pierre-Paul consented to disclosing that photo — and even the medical information, but especially the photo — ESPN shouldn’t have it.”

HIPAA, or the Health Insurance Portability and Accountability Act, was the top trending topic on Twitter soon after Schefter broke the story. ESPN said in a terse statement to CNN Money that HIPAA “does not apply to news organizations.” According to McCann, the individual who leaked the image to the network — if not authorized by Pierre-Paul — would be at fault under the federal law designed to protect a patient’s confidentiality.

“I think the government will investigate what took place at the hospital where he’s been staying to see who had access to those records, who could have disclosed them,” McCann said. “There could be a request to ESPN and Adam Schefter to provide information as to how he obtained these records. He doesn’t have to cooperate; he could be subpoenaed. It could become a dicey situation … it could raise some interesting issues about the rights of a reporter versus the rights of the person that the reporter is investigating.”

McCann said the 26-year-old Pierre-Paul could consider a lawsuit against ESPN, though it would be an uphill battle.

“I would talk to him about invasion of privacy as a potential tort that he could use,” McCann said. “It’s hard to win those kind of cases where the media entity is essentially doing its job, even if we don’t like how they’re doing it.”

Legal action against Jackson Memorial Hospital in Miami could be another option.

“Against the hospital you could consider malpractice. The hospital itself could be negligent in the manner in which it took care of him, and treatment is beyond just surgery,” McCann said. “It’s also how the person is treated before and after surgery. And unauthorized disclosure of a medical record certainly would be grounds for a potential lawsuit.”

And then there are ethical concerns. Did Schefter, a well-respected NFL insider, need to include the photo for the public to believe his report?

“I was surprised,” McCann said. “It may be lawful to do it — and it is. HIPAA doesn’t apply to media entities. They’re not the custodians of the medical records. They have a newsworthy goal of getting this information. But just because you can do it doesn’t mean you should.”

“Let’s face it. If you get this picture, if you get the photo, you have a great incentive to get (pageviews), right?” he added. “You’re going to generate a lot of traffic on the Internet. And even if you don’t think it’s the best thing to do ethically, you know that your competitors are doing it. It really puts media companies and reporters in a tough position where, if they act in a way that we would consider ethical or decent, they may not be as prominent. They may not be as successful. They may not have as good job security. It’s sort of a perverse set of incentives.”

Former Giant Carl Banks told WFAN’s Joe Benigno and Evan Roberts what Schefter did illustrates a bigger problem plaguing the media.

“This journalism profession, they’ve been intimidated by the TMZs of the world and they have compromised their integrity,” Banks said. “You’re firing guys because they have an opinion and they speak out against your partners when right is right and wrong is wrong, but then you allow a guy to tweet out a picture of someone’s medical (records) … that’s beyond reporting.

“A guy who is as smart as (Schefter) is and as respected a journalist as he is, I think it was the low point of his career,” Banks added. “I have no problem with him reporting it, but putting that stuff out there is (another) thing. It’s stupid. That’s not journalism … You have got to have some integrity when you are doing this stuff.”