|
|
| Don't Believe Everything You Read in the Funny Papers |
 |
|
Saturday, March 12 2005 @ 05:38 PM EST
|
I know a lot of you are aware of stories in the media stating that court-appointed doctors had found Ray Noorda incompetent and that this was the impetus for the Canopy-Yarro settlement. One of the attorneys for Canopy now tells Bob Mims that is not true at all: David B. Watkiss, the attorney for Canopy Group, denied published reports that court-appointed physicians had found Noorda to be incompetent. However, he did confirm that "it is a matter of public record that Mr. Noorda suffers from Alzheimer's disease. [But] no court-appointed doctors have found Mr. Noorda incompetent." Now you know why I suggest just not reading certain journalists, when they prove unreliable over and over again, and why I don't normally link to such phony scoops. I also didn't link to the stories because I couldn't believe the doctors would release that info to anyone but the court, and I didn't see it filed there. There are HIPAA regulations, which dictate what doctors and hospitals are allowed to release about someone's medical condition (the Health Insurance Portability and Accountability Act of 1996). I thought the regulations would prohibit the doctors from disclosing private medical information to anyone, including the media, without the patient's permission or subject to it being public info already by having been filed with a court and not under seal. That is why I felt uncomfortable with the articles, and I didn't write about them or link to them until I could verify the information one way or another. HIPAA doesn't cover journalists or everyone, but it does cover health care providers, and if you are curious about how it impacts on journalists, here's an article by the FirstAmendmentCenter.org, which seems to take a broad view. From my understanding, for example, I think it would normally be a HIPAA violation in most states for a hospital or doctor to provide medical information to a journalist unless the patient had consented.
And just because journalists are not covered specifically under that law, it doesn't mean they can never be liable if they publish private medical information. Here's an answer to such a question on a journalism organization's web site's (RTNDA.org, the Radio-Television News Directors Association & Foundation) FAQ on HIPAA: Q. Are journalists covered entities under HIPAA?
A. No! A journalist who lawfully obtains or discloses protected health information does not violate HIPAA. Remember, however, that just because HIPAA does not apply does not mean that journalists who obtain and disclose medical information may not be liable under (depending on the circumstances) other causes of action, such as invasion of privacy. That same FAQ explains that patients get to pick whether or not they wish any information about them released: Q. What is directory information and can it be released to the media under HIPAA?
A. Under HIPAA, hospitals may maintain a directory including a patient's name, location in the hospital, general condition and religious affiliation. If a hospital maintains such a directory, patients must be given the opportunity to object to or restrict the use or disclosure of this information. In no event may information concerning a patient's religious affiliation be released, except to the clergy. Other directory information may be released only if the media or the public asks for the patient by name and only after the patient has been given the opportunity and consented to the release of directory information.
Q. If a patient has opted not to restrict information, what kinds of condition information may be disclosed?
A. If HIPAA privacy standards are met, information, such as general condition information (information that does not communicate specific information about the individual) may be released. . . .
Q. What about patients who are unconscious or otherwise unable to give advance consent for release of their information?
A. In situations where the opportunity to object to or restrict the use or disclosure of information cannot be provided because of an individual's incapacity, a covered entity may use or disclose protected health information if the use and disclosure is: (1) consistent with a prior expressed preference of the individual, if any, that is known to the covered entity; and (2) in the individual's best interest as determined by the covered entity, in the exercise of professional judgment. Both conditions (1) and (2) must apply for a provider to release patient information under HIPAA if the patient is incapacitated.
Q. Is there a HIPAA exemption for public figures or public officials?
A. No. Laws, of course, are written for the unlawful, those who otherwise will do as they please. You don't really need a law, though, if you just stop and ask yourself a simple question: how would I feel if it happened to me? That made it a no-brainer for me not to link to those articles. I felt it was unkind, so I didn't want to do it, law or no law, not unless it became part of the public court record.
|
|
|
|
| Authored by: Anonymous on Saturday, March 12 2005 @ 06:43 PM EST |
Strange. When IBM comes calling, they aren't going to be able to hide behind
his illness, severe or not? Why would they do that? IBM spent millions and
maybe lost billions in a fraud suit with connections to Canopy and through them
to Microsoft probably. Canopy cut the cord to Yarro, but didn't close the
Canopy/Microsoft hole, or at least try to get a "get out of jail free
card" for being duped? Weird, just plain weird.
[ Reply to This | # ]
|
| |
| Authored by: troll on Saturday, March 12 2005 @ 06:46 PM EST |
If you want to make links clickable:
<a href="http://www.example.com>link</a>
Yours truly ...[ Reply to This | # ]
|
| |
| Authored by: fettler on Saturday, March 12 2005 @ 06:57 PM EST |
| For the literally-minded [ Reply to This | # ]
|
| |
| Authored by: tyche on Saturday, March 12 2005 @ 06:57 PM EST |
"I think it would normally be a HIPAA violation in most states for a
hospital or doctor to provide medical information to a journalist unless the
patient had consented."
PJ, I think you will find that HIPAA is Federal. The states don't have a say in
it. It would be a violation.
Craig
Tyche
---
"The greatest enemy of knowledge is not ignorance, it is the illusion of
knowledge."
Stephen Hawking[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, March 12 2005 @ 07:08 PM EST |
| PJ, you are a great journalist. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, March 12 2005 @ 07:19 PM EST |
From http://en.wikipedia.org/wiki/HIPAA:
The HIPAA Privacy
Rule took effect on April 14, 2003.
In other words, Mr.
Noorda's health issues probably arose
well before HIPAA actually came into
effect and access to
his health information would have been covered under a
different set of laws at the time, if any.
Not that it makes using his
health records in court any
less sleazy...
c. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, March 12 2005 @ 07:19 PM EST |
However, he did confirm that "it is a matter of public record that Mr. Noorda
suffers from Alzheimer's disease. [But] no court-appointed doctors have found
Mr. Noorda incompetent."
How many people besides me picked up on
that "no court-appointed doctors" line, and wonder if perhaps some 'non
court-appointed doctors' may have come to a different conclusion. You'd think
if the lawyer wanted to quash the story completely, he'd have just said 'no
doctors' rather than the very open "no court-appointed doctors". Or perhaps he
knew he couldn't say that.[ Reply to This | # ]
|
| |
| Authored by: SilverWave on Saturday, March 12 2005 @ 07:32 PM EST |
RSS Feed for GrokLaw Latest News Picks?
I pick up Groklaw via RSS
in firefox, would it be possible to add "Latest News Picks" to the end of this
feed?
OR
Could we have a seperate feed?
What's you
view?
Oh and what do you think PJ? - it is your site :)
---
"They [each] put in one hour of work,
but because they share the end results
they get nine hours... for free"
Firstmonday 98 interview with Linus Torvalds [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Saturday, March 12 2005 @ 08:37 PM EST |
| Quoting PJ:
One of the attorney's for Canopy now tells Bob Mims that is not
true at all:
David B. Watkiss, the attorney for Canopy Group, denied
published reports that court-appointed physicians had found Noorda to be
incompetent. However, he did confirm that "it is a matter of public record that
Mr. Noorda suffers from Alzheimer's disease. [But] no court-appointed doctors
have found Mr. Noorda incompetent."
As far as I know, you can't make a
positive diagnosis of Alzheimers until the patient has died, and doctors take a
sample of the brain tissue and do an autopsy. There are various different
diseases that impair memory. Unfortunately, I know this since my mother is in
the middle of a memory robbing disease, and her sister died of one a few years
ago. [ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, March 13 2005 @ 01:04 AM EST |
1. We know several staff members at Canopy resigned, they gave affidavits saying
so.
2. Canopy *alleged* that Yarro had something to do with, and/or instigated, the
resignations in their counterclaims
3. We know that of these staff members, few if any (I don't recall any) had
found new jobs when they signed these affidavits. I even recall them saying in
affidavits that they hadn't found new jobs.
4. We know Mustard had found replacements for several of the resigned staff (it
said so in his affidavit) and was interviewing for the remaining positions (it
also said that in his affidavit).
5. I would *presume* that Mustard would not be offering the resigned folks new
jobs, first because why should he, second because I'd presume that he wouldn't
want to, and third because he's already replaced most or all of the resigned
staff.
... Which leads to my questions:
a) DID THE EX-CANOPY STAFF ("THE AFFIANT CHORUS") GET ANYTHING?
b) IS YARRO HELPING THEM FIND NEW JOBS?
c) OR, DID THESE FOLKS (*ALLEGEDLY* PERSUADED TO LEAVE CANOPY AT YARRO'S
INSTIGATION) NOW FIND THEMSELVES LEFT HUNG OUT TO DRY ?
[ Reply to This | # ]
|
| |
| Authored by: seraph_jeffery on Sunday, March 13 2005 @ 04:38 AM EST |
Just so you know, HIPAA is a good thing, in general, but it has been a bother to
me because of my profession. I'm a clergyman, and hospitals USED to contact
congregations when a member is admitted. But, now the admitted patient must ask
the hospital's chaplain to call, or for a family member to call. And very few
people remember to do that. Hospitals categorically refuse to answer whether or
not such-and-such a person is even admitted to the hospital to anyone. Good for
privacy. A nuisance when you're expected to visit...
[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Sunday, March 13 2005 @ 07:55 AM EST |
This is just another *very* nasty piece of PR work that makes me sick. *If* the
Yarro lawyers are behind this will someone please refer them to the local bar
association. If its Yarro alone - well - I just hope he gets his right
comeupance.
The author here is trying to prove a negative. Tip for him/her: you can't do it.
The presumption is of legal competence until proven otherwise. There has been no
legal proof of incompetence here so competence must be assumed. This is similar
to the presumption of innocence in a criminal case.
There are documented reports of Noorda having trouble with his memory in 1993.
This was while he was at Novell - he left in 1995. The Canopy attournies do
mention Alz so I dont think there is a lot of doubt about the diagnosis by
either side.
The diagnosis of Alz can be confirmed premortum by brain biopsy. No one would do
this for Alz. One reason we would consider such an invasive proceedure is if
there was a question of Jacob-Creutsfeld disease which may now be 'sort of'
treatable. I use the words 'sort of' because the numers "treated" are
in singles digits and the results are *not* great. Come back in a year or so and
maybe it might work a bit better. We are on something of a learning curve at the
minute.
The diagnosis per say does not matter. If you are misisng an arm or leg that
does not make you less competent in court. The presence or absence of a
particular disease does not matter per se. Its only the effect on the legal
competence that matters in court.
Children of 'tender years' in spite of the absense of brain disease in general
are not legally competent. Persons under 18 cannot have contracts for goods or
services enforced against them - except for necessities (a very wooly area) -
because of the presumption of legal incompetence.
Schizophrenics are not known to have organic brain disease. This is still
debated++ but I think most(?) people now agree that it is really an organic
disorder.
Epilepics were once thought not to have an organic disorder either but now with
the various modalities of investigation available this opinion is no longer
held. You do see non organic 'pseudofits' in attention seekers.
*Everything* depends on the timing and the individual circumstances.
++++++++++++++
On multiinfact dementia which was mentioned elsewhere that is an important
diagnosis to make as progression may be halted with asprin or warferin. MRI is
pretty good for this.
+++++++++++++++++
On the disclosure: spare me please. If a doctor or a nurse in the hopspital had
said a word to the press without it being signed (probbaly in triplicate) by the
hospital lawyers *and* the Noorda lawyers they would be fired immediately. Thier
licence to practice would be pulled as soon as the local licencing body heard
about it.
The only exceptions to disclosure of this nature is what you can say in a court
case or to the licencing body investigating a case. Licencing bodies normally
hear the cases in closed session anyway.
The fairness of closed sessions is being debated by all concerned but that is
the way it is at the minute.
++++++++++++++++++++++
Re cleargy (see post above): It has been my practice for many years when dealing
with ill people to ask them if they want to speak to the local minister or
equivilent thereof. I have dealt with Buddists, Hindus, Catholics, various
Prodestant denominations, athiests, Muslims, Jews and a multitude of others. No
one has ever taken offense. Patients, relations and the clergy have been
grateful for asking.
Dont ever rely on hospital systems to contact the right people. As my mother
taught me "There is a time for the doctor and a time for the priest."
Some places take this a little further. One hospital I worked in had a Catholic
priest on the cardiac arrest team. Nice chap. Very good at alternating between
being a drip stand and carrying out his duties at the last rites (Extreme
Unction). Of course he only carried out his religous duties for Catholics.
Otherwise he was a very handy drip stand/general dogbody. As I said - a very
sensible man to work with.
--
MadScientist[ Reply to This | # ]
|
| |
| Authored by: TheMohel on Sunday, March 13 2005 @ 01:53 PM EST |
HIPAA doesn't cover journalists or everyone, but it does cover
health care providers, and if you are curious about how it impacts on
journalists, here's an article by the FirstAmendmentCenter.org, which seems to
take a broad view. From my understanding, for example, I think it would normally
be a HIPAA violation in most states for a hospital or doctor to provide medical
information to a journalist unless the patient had
consented.
You are in general correct. The upper link you give
to the HIPAA regulations leads to a fascinating rats-nest of regulations
promulgated under the screamingly ironic name of "administrative
simplification." Because I'm a practicing physician and because I'm deeply
enmeshed in healthcare IT, I've had the fun duty of reading most of that
rats-nest, and I can assure you that most of it has nothing to do with
journalists (or with doctors, for that matter).
From my understanding, and I
will defer to anyone with legal experience here or who was present during the
fun, "HIPAA", the Health Insurance Portability and Accountability Act, acquired
this broad privacy protection as something of a side note. Part of HIPAA was a
section on administrative simplification, which was an attempt to streamline the
process of bringing medical billing into the 20th century.
Medicine is, in
general, quite backward in its use of information technology. Only in the last
few years have electronic medical record systems been in wide use, and most
small and medium-size practices continue to document primarily using handwritten
paper or typed dictations. Billing systems have been around for a while, but a
nationwide unified billing infrastructure has been long in the coming and still
doesn't exist in most places. In an attempt to fix this, a number of provisions
were added to the HIPAA act, including assignment of provider IDs, assignment of
patient IDs, and numbingly complex discussions of how to bill electronically. As
part of this, privacy concerns were discussed.
The legislators seem to have
been quite concerned about the amount of patient-specific information that would
suddenly be available on computers. This was particularly true for outside
billing or auditing agencies that were handling all of this information (and
indeed, a large part of the regulation is in explaining what constitutes a
"covered entity" under the Act, to prevent the authority of the regulation from
being diluted by inter-company transfer of the data). At no time am I aware of
"covered entities" ever including journalists.
Prior to the regulation
becoming public it had a long and complicated revision history. As originally
written, it would have required written patient authorization for almost every
form of disclosure of information. There was a great deal of anxiety among
health care providers, because it seemed that the regulation would literally
require the patient to consent for disclosure to every new covered entity. Which
is great, until you realize the number of consents that would require for a
simple hospital stay (or how ugly it would get when a patient, because of their
condition, was unable to consent directly to disclosures that were critical to
their recovery). Before the regulations became effective, however, this
provision was rewritten to require a single blanket consent, as part of consent
for treatment. Privacy advocates with limited understanding of medicine were
outraged; most doctors who were watching heaved a large sigh of relief.
The
more onerous part of the regulation for physicians is to interpret what
information is covered and what should be done to protect the information. The
regulation is quite sparse in its actual requirement for protection, specifying
only that reasonable technical and procedural measures be taken to prevent
unauthorized disclosure of covered information.
Unfortunately, the
definitions of "reasonable" and "covered" are very much up in the air. The
regulations are new and nobody wants to be a test case, so I don't believe that
there's much case law yet (I'd love to know differently; I don't pretend to be a
lawyer). The penalties in the Act are quite severe, and as a result, hospitals
and physicians are tending to treat all information that might be covered
as if it is covered. And they are employing a number of measures, with
varying success, to deal with it. I've personally seen heated arguments over
visible white-boards with patient names on them (and whether these are now
"legal"). I've seen names removed from the backs of paper chart binders to
prevent casual revelation of patient names, and then put back when it was
pointed out that you had to look through a dozen chart binders to find the one
you needed (revealing the name and possibly much more to a provider who may not
be involved in the care of that patient). I've seen phone calls to patient rooms
be rejected by one clerk who felt that she would be revealing the presence of
that patient, and who quite seriously thought that HIPAA meant that patients
would have to be incommunicado.
JCAHO (the Joint Commission on the
Accreditation of Healthcare Organizations) and the auditing arms of CMS (the
Center for Medicare and Medicaid Services) have also weighed in on the privacy
issues, again in general supporting restriction of release of any patient
information of any kind to outside organizations.
There are few absolutes at
the moment. Suffice it to say, however, that a release to the media of a
diagnosis of Alzheimer's Disease without the consent of the patient (or an
authorized representative, in the case that the patient was no longer competent
to consent) would be a slam-dunk obvious HIPAA violation. [ Reply to This | # ]
|
| |
| Authored by: sjvn on Sunday, March 13 2005 @ 05:30 PM EST |
>I think it would normally be a HIPAA violation in most states for a hospital
or doctor to provide medical information to a journalist unless the patient had
consented.<
Correct, except it's all states.
It's a HIPAA violation for _the_ health care provider to give such information
to a journalist, or anyone else who's not been authorized to receive it. But,
journalists aren't covered by HIPAA so we can't violate it. Therefore, a
journalist with such information can use it... keeping in mind that they may be
heading for trouble with invasion of privacy issues.
FWIW, public figures, like Ray Noorda, also are covered by HIPAA.
Some information--patient's name, location in the hospital, general condition
and religious affiliation--may be available.
Finally, family members, and Good Samaritans, can provide information without
running afoul of HIPAA. So, for example, if a member of the Noorda family said
"Ray was found incompetent by a court appointed doctor." You could
run that with the proper attribution. Or, someone had helped a victim of a car
accident you could use their account of the victim's injuries without running
afoul of HIPAA. It gets a little weird though with police and ambulance
services because that's where public records and HIPAA intercept.
Aren't most of you glad you're not journalists about now? ;-)
For more on journalists and HIPAA see:
http://www.rtnda.org/foi/hipaafaq.shtml
Steven[ Reply to This | # ]
|
| |
| Authored by: Anonymous on Monday, March 14 2005 @ 11:31 AM EST |
If you have to ask who, you didn't read this article.
Thanks PJ, nice to know there is at least one![ Reply to This | # ]
|
| |
| Authored by: Anonymous on Monday, March 14 2005 @ 03:29 PM EST |
"it is a matter of public record that Mr. Noorda suffers from Alzheimer's
disease"
I seem to remember that in a fraud case in the UK to do with Guiness that a
Charman or Director called Saunders avoided being charged. A couple of years
later he announced a remarkable recovery! A bit cheeky!
[ Reply to This | # ]
|
| |
| Authored by: Joss the Red on Monday, March 14 2005 @ 06:04 PM EST |
I work for a health insurance company. I can tell you
that the government has no sense of humor at all about
HIPAA violations.
If doctors, medical providers, or anyone else covered by
HIPAA rules leaked information about a patient that
contained any way to identify the patient the government
would come down like a mountain sized sack of lead bricks.
I can't imagine any legitimate doctor blabbing about a
specific patient.
---
I don't even play a lawyer on TV.[ Reply to This | # ]
|
|
|
|
|
