The finger and the football star

AP Photo/Julio Cortez

Jason Pierre-Paul talks to reporters for the first time since injuring his hand in 2015.

Medical privacy and the right to publish took opposite ends of the legal field when New York Giants defensive end Jason Pierre-Paul squared off against ESPN and reporter Adam Schefter after Schefter tweeted photos of a medical report about injuries to the football player’s hand.

Pierre-Paul sued ESPN and Schefter in February after Schefter tweeted images of a portion of Pierre-Paul’s medical records showing that doctors amputated Pierre-Paul’s right index finger four days after a July 4th fireworks injury last year. In the suit, Pierre-Paul asserts privacy claims under a Florida medical privacy law and the common law.

ESPN and Schefter fired back in April, filing a motion asking a federal district court in Florida to dismiss the lawsuit and award reasonable attorney’s fees and costs under the state’s strategic lawsuit against public participation (anti-SLAPP) law.

The photos, according to Schefter, backed up his reporting and ended speculation about the severity of Pierre-Paul’s injury. “ESPN obtained medical charts that show Giants DE Jason Pierre-Paul had right index finger amputated today,” Schefter told his 3.86 million Twitter followers.

Schefter told SI.com that he tweeted the photos out of a desire to be as accurate as possible. “[I]n a day and age in which pictures and videos tell stories and confirm facts … this was the ultimate supporting proof,” he said. In retrospect, however, Schefter also said that “there should have been even more discussion than there was due to the sensitivity of the story.” Schefter has insisted in interviews that he did not seek the documents, but rather that they were provided to him.

Subsequently, two hospital employees were fired for inappropriately accessing the files, and a lawsuit brought by Pierre-Paul against the hospital was settled, ESPN reported.

Pierre-Paul’s complaint asserts ESPN and Schefter violated a section of Florida’s medical privacy law that prohibits a “third party to whom [medical] information is disclosed” from “further disclosing any information in the medical record without the expressed written consent of the patient or the patient’s legal representative.”

ESPN and Schefter, in their motion to dismiss, argue that statute applies only to third parties specifically listed in the law, who have the “right to obtain medical records from a health care provider.” Examples “include attorneys and litigants in medical-related lawsuits…[and] public health authorities such as poison control centers….”

ESPN and Schefter’s motion further notes that the statute does not apply to the general public. If the law were interpreted otherwise, “any person who happens to learn some medical information by chatting with a Florida physician at a cocktail party would become a lawbreaker if they repeated the conversation to anyone else,” the motion states.

Pierre-Paul’s broad interpretation of the Florida medical privacy law “would violate the First Amendment by prohibiting the publication of truthful information relating to a matter of public concern,” ESPN and Schefter’s motion argues, citing U.S. Supreme Court cases including Florida Star v. BJF and Bartnicki v. Vopper.

Enrique Armijo, a professor of First Amendment law at the Elon University School of Law, said that a First Amendment problem would be created if the Florida medical privacy law was used to punish a journalist who lawfully received a medical record.

“That is Bartnicki v. Vopper. That is other cases that basically say that if a journalist acquires a record not unlawfully then the First Amendment protects the journalist from being punished for obtaining and disseminating that information,” Armijo said.

Lucas A. Powe Jr., a professor of sports and constitutional law at the University of Texas School of Law, added: “The [U.S. Supreme] Court has never gone all the way and said that the publication of truthful information is always protected. But, on the other hand, there isn’t a case of the Court sanctioning the publication of truthful information.”

In a May 5 opposition to ESPN and Schefter’s motion to dismiss, Pierre-Paul’s attorneys sought to distinguish the facts of his case from Florida Star, Bartnicki and similar cases.

Because the hospital disclosed Pierre-Paul’s medical records to Schefter in violation of Florida and federal (HIPAA) medical privacy laws, and because Schefter knew of the hospital’s illegal disclosure, Schefter “unlawfully obtained” the information and can be subject to liability for the tweet, the attorneys argued. Pierre-Paul is represented by attorneys from Meister Seelig & Fein LLP and Hinshaw & Culbertson LLP.

In a court document filed May 16, attorneys for ESPN and Schefter disputed the argument that Schefter unlawfully obtained the medical records. Decades “of First Amendment case law has consistently held that a journalist does not unlawfully obtain information by allegedly accepting it with knowledge that a source’s disclosure was illegal,” they wrote. For a journalist to have obtained information unlawfully, the journalist must have broken the law in the process of obtaining the information. ESPN and Schefter are represented by attorneys from Thomas & LoCicero PL and Levine Sullivan Koch & Schulz LLP.

In addition to the medical privacy claim, Pierre-Paul also alleges that ESPN and Schefter invaded his privacy by publicly disclosing private facts, because “publication of the chart was highly offensive to a reasonable person of ordinary sensibilities.”

Pierre-Paul’s complaint makes an important distinction between the publication of information from the medical record and publication of the record itself: “The chart, as distinguished from the amputation of plaintiff’s right index finger, was not a matter of legitimate public concern.”

This distinction, Armijo explained, is one “that more plaintiffs are going to latch onto in privacy cases.”

Armijo drew parallels between Pierre-Paul’s suit and Hulk Hogan’s case against Gawker Media, in which a jury recently awarded Hogan $140 million in damages for invasion of privacy after Gawker published a portion of a sex tape involving Hogan.

According to Armijo, “Hogan made the successful argument at the trial level … that even if there was a public interest in his private sex life, and he essentially conceded that because he had gone on Howard Stern and talked about it … there is no public interest in the actual video that Gawker had distributed on its website.

“Jason Pierre-Paul is making basically the same argument,” Armijo said. “It is the idea that even if there is a public interest in the injury, something that he has to concede because of the enormous public interest in the National Football League … there is no interest in his actual medical report.”

In the motion to dismiss, ESPN and Schefter assert that Pierre-Paul’s claim for the publication of private facts must fail because Schefter’s tweet related to a newsworthy matter of public concern. Under Florida law, when a party publishes information relating to a matter of public concern, liability cannot be imposed for the publication of private facts.

According to the motion, Pierre-Paul’s proposition that the information in his medical records is “a matter of public concern” but “an actual picture of the same information embodied in a document is not” is unsupported. The photos in the tweet “amount to no more than photographs of words on a piece of paper and a computer screen stating that plaintiff’s finger had been amputated.”

The opposition to the motion to dismiss countered that the photos included in the tweet revealed more than the amputation. According to Pierre-Paul, the tweet also included information disclosing that he had a skin graft and relating to an “elbow retraction” for a different patient.

According to Powe, plaintiffs have a steep battle when bringing a right of privacy claim. “The right of privacy is much beloved, but not by courts,” he said. “I think that especially true of somebody who is a public figure like Pierre-Paul is.”

Armijo, however, questioned whether the First Amendment will always provide blanket protection to journalists who report on matters of public concern.

“I think that the First Amendment is only going to stand up so tall [in invasion of privacy cases involving celebrities] when the material being shown is related to, but perhaps superfluous to, the issue that is actually the matter of public concern,” he said.