I’ve been hoping some lawyer(s) would discuss the lawsuit filed by Jason Pierre-Paul (“JPP”) against ESPN and Adam Schefter because frankly, although I wasn’t happy that Schefter posted a medical record – and Schefter later acknowledged there’s an issue of sensitivity here – I can’t see how any lawsuit against the journalist could prevail because…. freedom of press. Now sports lawyer Tony Iliakostas has offered his analysis and prognosis for the case. It provides a useful recap of the claims, Florida law, and Iliakostas’s predictions.
For those not familiar with the case, the short version is that Schefter somehow obtained JPP’s medical record showing surgery on JPP’s fingers after an accident JPP had. Schefter tweeted the actual image of the medical record showing surgery was performed. Not surprisingly, Jackson Memorial Hospital investigated to determine what employee(s) may have leaked the record to Schefter and subsequently fired two employees. JPP sued the hospital for breach of his privacy. The hospital settled. But this lawsuit against ESPN and Schefter is a separate lawsuit filed over the incident under Florida law.
Iliakostas writes that in suing ESPN and Schefter over the tweet, JPP alleges
that Adam Schefter violated Florida Statute § 456.057, which states in a nutshell that medical records maintained by hospital, clinical laboratories, and other health care practtioners shall be kept confidential. Specifically under subsection 7(a) of the Florida Statute, records shall only be provided to the patient, his/her legal representatives, and other health care providers. Medical records under this statute shall not be disclosed to anyone else without the patient’s written consent. The complaint specifically asserts that Schefter is in violation of § 456.057(11) which states that a third party in receipt of medical records is “prohibited from further disclosing any information in the medical record” without the patient’s express written consent. Likewise, the complaint holds Jackson Memorial Hospital accountable for disclosing the records in the first place without his consent.
So that’s different: Florida law imposes a duty to maintain confidentiality on a third party recipient of a medical record. If you are not a health care professional and received a medical record from a patient in Florida, would you know you had that duty to maintain confidentiality? I wouldn’t. But let’s continue…
Jason Pierre-Paul also accuses Schefter of invading his privacy. Invasion of privacy is a common law tort offense that comes in various forms. Here, it comes in the form of public disclosure. Pierre-Paul alleges that this medical information about his amputated fingers was private and that publishing them on a very large scale was offensive to him. To prove any public disclosure-invasion of privacy claim, the plaintiff has the burden of proving that 1) private information pertaining to him was disseminated to a large audience and 2) the information that was shared is not of public concern.
The lawsuit also holds ESPN responsible for Schefter’s actions under the respondeat superior doctrine, which is a very fancy legal term which states that employers are held accountable for the actions of their employees that are performed in the course of their employment.
We’ve seen that last argument before in other lawsuits where employees of a clinic or hospital breached a patient’s privacy. The results have been mixed on that. In one case, Walmart was held liable for what its pharmacist did in breaching a patient’s privacy. In another case, a clinic was found not liable for what its employee did in snooping in a patient’s records and sharing that information with others.
Iliakostas does not think JPP will prevail on any of the claims. Keep in mind that the hospital is not a defendant in this suit, having settled already. He writes, in part, that JPP’s accident and surgery were matters of public concern, although he makes no attempt to distinguish between matters of public concern and matters that are just of public interest or curiosity. But here’s the part of his analysis I want to zoom in on:
No matter how you slice or dice this case, there is one defense that unequivocally protects Adam Schefter: under the First Amendment’s right to freedom of press, he had a right to share the medical records. Jason Pierre-Paul’s fireworks injury was certainly newsworthy because not only was he a staple in the New York Giants defense, but there was a very real possibility that his time in the NFL came to an end. Thankfully, he still will be in a Giants uniform playing.
Needless to say, Schefter was simply doing what any great journalist does best, which is to share the news. Whether it was right for him to tweet the medical records is more a matter of journalistic ethics. ProFootballTalk opined on this matter, questioning whether Adam Schefter really needed to share Jason Pierre-Paul’s medical records to the whole world. But as a matter of law, Schefter and ESPN seem to be in the clear and I would expect this case to be dismissed.
Will part of Florida’s statute be declared an unconstitutional infringement of freedom of press? This is an important case to follow for a number of reasons. Can JPP prove harm or injury from the tweeted medical records? And even if he could, doesn’t Schefter’s protections as a journalist trump that in this case?
Stay tuned…