Public Relations Suicide by Essent Healthcare

Here they go again.  Another company is attempting to commit public relations suicide by blowing up the negative commentary of a small, low-traffic blogger into a national story.

An unlikely Internet frontier is Paris, Texas, population 26,490,
where a defamation lawsuit filed by the local hospital against a
critical anonymous blogger is testing the bounds of Internet privacy,
First Amendment freedom of speech and whistle-blower rights.

A state district judge has told lawyers for the hospital and the
blogger that he plans within a week to order a Dallas Internet service
provider to release the blogger's name. The blogger's lawyer, James
Rodgers of Paris, said Tuesday he will appeal to preserve the man's
anonymity and right to speak without fear of retaliation.

Rodgers said the core question in the legal battle is whether a
plaintiff in a lawsuit can "strip" a blogger of anonymity merely by
filing a lawsuit. Without some higher standard to prove a lawsuit has
merit, he said, defamation lawsuits could have a chilling effect on
Internet free speech.

"Anybody could file a lawsuit and say, 'I feel like I've been defamed. Give me the name,' " Rodgers said.

The blog about problems at Essent Healthcare is here, called The-Paris-Site.

Interestingly, the hospital, owned by a company called Essent Healthcare, appears to be using the medical privacy act HIPPA as a bludgeon to try to stifle criticism.  To make a case against the hospital, general criticisms about poor care and medical mistakes are best backed up with real stories.  But the hospital is in effect saying that real stories can't be used, since doing so violates HIPPA.  I don't know if this is or is not a correct application of HIPPA, but it is a danger of HIPPA that I and others warned about years ago.  The hospital goes on hilariously about how they are not really worried about the damage to their reputation, but for the poor patients whose medical details ended up in the blogger's hands.  Memo to health care workers in the future:  If you think the hospital screwed up my care, you have my blanket permission to release the details of said screw-up.

Before starting my own company, I have worked in a number of senior jobs at publicly traded companies and a few soon-to-be-f*cked Internet ventures.  In several of these cases, I and my fellow managers came in for pretty rough and profane criticism.  In many cases the posts were hilarious, positing well-oiled multi-year conspiracies from a management team that was just trying to survive the day.  Most of us were pretty rational about these sites - the more you try to respond to them, the more attention you give them.  The best response is to ignore them except maybe on Friday night when you can drink some beers and laugh out loud reading the commentary.  But there were always a few folks whose ego just got inflamed by the comments, even though they were seen by maybe 12 people worldwide.  They wanted to put a stop to the commenters.

I am sure that this is what is happening here.  Because any good PR person who has been in the business for more than 5 minutes would tell you that the worst thing you could do for a critic with a small audience is to a) turn them into a martyr and b) increase their audience about a million-fold.  These guys at Essent are just nuts, and in the heat of ego preservation are in the process of making a massive mistake.

I am reminded of TJIC's response when a lawyer threatened to file a BS copyright suit against him:

With regards to your statement that you've been "looking forward for a
class action lawsuit on a case like this", I, too, would enjoy such a
lawsuit. The publicity that we would derive from defeating your firm in
court over a baseless allegation of copyright infringement, brought
about by a law firm and a lawyer that does not understand the First
Sale doctrine, and which are entirely ignorant of the Supreme Court
case law on the topic, would be of incalculable value to us, and would
be a very cost efficient way to further publicize our service.

Hat Tip to Overlawyered for the link.

Update: The blogger appears to have been around since 2005.  The article said that as of June, or after about 2 years of operation, he had 170,000-ish page views.  He now appears to be at about 230,000 just three months later and only a few weeks after the story went public.  Q.E.D.

Update #2:  I forgot to include my opinion on the case.  There has got to be some higher legal bar to be cleared to strip the anonymity of a blogger than just asking for it to happen during discovery on a lawsuit.  If the legislature is not going to establish this bar, then a higher court is going to have to do so. 

  • Anna

    Private citizens (non-hospital employees) can not be in violation of HIPAA by definition. If a patient tells me about her hospital experience and I blog about it, then it's not a HIPAA violation.

    However, if a hospital employee shares the information with me and I blog about it, I'm still not in violation of HIPAA, but the employee is. If the hospital has any reason to suspect that the blogger himself is an employee or an employee is sharing information with the blogger, then I can see why they're using HIPAA as a bludgeon here.

    I do agree, though, that the bar should be set higher than just mere suspicion of a violation. Besides, I think HIPAA involves identifiable details, not general details. For example, a doctor can show me a patient's CT scan and discuss it extensively, including the patient's age and gender, but not his name, birthday, address, etc. Doctors do this sort of thing during medical conferences all the time, and it's definitely not a HIPAA violation.

    The guy should get a good lawyer who is conversant with HIPAA rules. I think this is easily arguable in court, although I haven't read the guy's blog yet to see how much information he's actually shared.

  • Sometimes one must be a pedant. There is no HIPPA law. The law is HIPAA, the Health Insurance Portablity and Accountablity Act of 1996(PL 104-191 1996). The disclosure of medical data that is personally identifiable may be a violation. Medical data that is not personally identifiable is not. There are permissible disclosures under the law, one of which involves government agencies at any level of government and these include law enforcement agencies but are not exclusively law enforcement agencies. I used to be a hospital compliance officer and was intimately involved with writing the policy and procedures manual when this law first became effective.

  • markm

    In a quick sampling through the blog's archives, I saw lots of naming names of Essent personnel, but no details of medical cases at all. I would be surprised to find anyone with any training in a medical job revealing patient names or other information that could identify the patient, but as far as I can tell in 5 minutes, the blogger doesn't discuss particular cases at all. And as Charles says, it's quite legal to discuss cases without identifying the patient. (If the town is small enough, there will be times when the gossips will think they know who you are talking about from the medical details, but it looks like this blog steers wide of any such issues.)

    I didn't go into the comments - but if their problem is with commenters, the blog owner should not be the defendant, and it's (1) unlikely that the blog owner can identify commenters who didn't choose to reveal identifying information in their posts, and (2) entirely possible to subpoena whatever information the owner might have without revealing his identity to the plaintiffs.

  • Adirian

    The problem with attempting to hit bloggers is that they are decentralized - you can't break anything up because there's too much there. Even if the courts side with Essent, bloggers on the whole can simply move away from hiding behind ISPs, and produce a secondary shield for their anonymity. One could, for example, use a peer-to-peer network, with constantly shifting encryption keys, no history tracking, and a random number of hops, as an intermediary to prevent identification.

  • As mentioned above, they're casting a larger net with the 1-10, and trying to find employees. Any comments that were anonymously contributed were just that, anonymous. I get an email, from the blog, when a comment arrives, and there is no real opportunity to track back.

    Even if the ISP provides my name, the only way anything could be secured would be through MSN (Microsoft) and Blogger (Google). I can't see either one of those rolling over, and we know they keep a rather large legal staff....

    As to PHI, the person so to speak, I've tried to stay more with the guidelines that the UC Med Center uses for medical research patients--fairly strict, and far within the limits established by HIPAA.

    Most, if not all of the comments meet my criteria, as most commenters are healthcare employees and are aware of the Act's provisions as it applies to PHI. There are far more breaches at the hospital than commented to the site.

  • Rebecca Caffee

    February 12, 2008

    In June of 2007, I was formally accused of making anonymous comments to the-paris-site.blogspot. I began reading posts to this blog in may of 2007, but never a commenter. (Even when I was threatened on your site, I did not comment). I did not comment, violate HIPAA, or agree to the exploitation of my child. In the past, Judge Scott McDowell had witnessed my pure integrity and intolerance for corruption. To say that I was a threat is an understatement.

    On 04/26/07, I was working @ the Paris, Texas hospital. I was the charge nurse of a north campus nursing unit. I provided initial emergency treatment to a patient, I was 3rd responder. The events that followed, warranted official investigations. I was asked to take part in unsettling corruption, I refused. My refusal resulted in criminal accusations. I requested incident be reported, I was then accused of causing/contributing to incident, possibly by hanging or strangulation. One north campus staff member repeated this 'theory' to South campus employees, EMS, admin. staff, Dr. Paul Lee, co-workers in hallways @ north campus. Dr. Paul Lee and this employee accused me of a very inappropriate conversation w/this family. All of these accusations were false. I requested that Hospital Admin. self-report to state regulatory agencies, re: standard/ethical violations. Admin. staff refused to self-report. The investigation: Administration stated that the pt's. room was assessed, determined no hanging/strangulation. Trauma was never the issue. I continued to request Admin. self-report to state regulatory agencies, warranted official investigations. I communicated requests via e-mail/fax: Admin. nursing staff, Richard Salerno (CEO), and Charles Fletcher (Corporate Compliance Officer). Verbal requests: Dr. Paul Lee, Nursing admin. staff, Risk management. Their response, no report would be made. I was allowed to work (5) 12-hour shifts, following 04/26/07. However, employment was terminated (2) days after I e-mailed/faxed JCAHO and DSHS reports to Charles Fletcher, Nursing Admin. staff, and Richard Salerno.

    In June of 2007, I was subjected to a meeting. I was accused of sending an anonymous letter to the patient’s family and making comments to your blog site. Hospital attorneys stated that I had used a home printer/laptop to generate the letter. I offered to submit all personal home equipment for court inspection. Hospital attorneys declined.

    Judge McDowell was quoted in The Houston Chronicle. This quote referred to a commenter who provided information to a family member, before the hospital had the same opportunity.

    In late October 2007, our daughter was approached by a woman named Tamera Bean. Bean stated that she was associated with Gentiva Health Services and Niece to Justice of Peace, Ernie Sparks. Ernie Sparks was the on-call Justice of Peace on 04/26/07. Bean told our daughter that I had killed (2) patients, in the past. Bean stated that she would pay to have our daughter emancipated, but wanted my laptop. Our daughter ran away from home, following the letter from Bean, re: promise to pay for emancipation. Our daughter was driven by Hunter Dickson, to the home of Kristen (Hunter Dickson's mother) and Jason Elmore. She was harbored in their home and Steven Field's home for (5) days/nights. Jason Elmore is a jailor w/Lamar County Sheriff's Dept. Steven Fields is the nephew of Jason Elmore. Steven Fields is a 27 year-old single male, truck driver by trade, dishonorably discharged from the military. Kyle Dickson (Hunter Dickson's father) stated that he had known that our child was harbored by Steven Fields.

    11/02/07

    2330
    Kristen Elmore, Tamera Bean, and Deborah Crane prevented me from taking our daughter home from band hall @ Chisum High School. Kristen Elmore took Meagan from school, while I called Paris Police Dept. Before Sargeant Woods arrived, Tamera Bean threatened to kill me. We pressed charges against these women, Inticement of a minor. Shane Boatwright, Paris P.D., called and stated case had been sent to D.A.'s office. Alan Hubbard @ D.A.'S office stated Gary Young refused to prosecute this case. I requested the records, Paris P.D. did not comply. Last week, I received a copy of a letter from the Attorney General's office to City Attorney Legate. This was a response to Legate's question, "must we disclose the records?"

    Tamera Bean had written a 2nd letter to our daughter, stated she would pay for her parental emancipation, told her to call Bill Flannery. I sent a copy of this letter to Gary Young on 11/05/07.

    11/07/07

    We reported our child missing. Deputy Madeline Chance stated that this minor was found in the home of Deborah Crane. She stated our daughter was to remain @ Crane's house overnight, per instructions of Kevin Jenkins and Rick Teer. This was disturbing information. Chance gave instructions to contact Judge Chuck Superville in the a.m. She stated that I should request a warrant for Deborah Crane's arrest, re: harboring. She stated that she wanted to arrest Crane on the following day. Chance stated that she had filed a Runaway report. Chance told my husband to have our daughter's driver's license revoked, we declined. We had not allowed our child access to her vehicle, since 10/28/07. I went to Superville's office the next day, and to The District Attorney's office. Crane was never arrested for harboring.

    11/08/07

    Residence Theft report. Theft of guns, computers,identity items, etc. LCSD refused to initiate identity theft report, re: indicated per DPS.
    LCSD Deputy, Clayton Ballard, took statements . Minutes later, LCSD Investigator, Kevin Jenkins arrived. Ballard stated that Jenkins was there to take Fingerprints. Jenkins abruptly had to leave, prints were never taken.

    LCSD refused to initiate identity theft report, re: DPS policy regarding Sheriff's Dept. responsibility.

    Documents taken:

    Income tax returns 2004, 2005, 2006
    JCAHO report/response.
    Birth certificates
    daughters social security card and driver's license
    Depositions/court documents
    Documents of school records
    Documents, re: Kevin Jenkins
    letters from tamera bean and Hunter Dickson.

    Continued harboring of our minor child, 7 times in (2) months. My husband and I reported to Lamar Co. Sheriff’s Dept., each time she was picked up and harbored. She was harbored by the following: Kristen Elmore, Jason Elmore, Kyle Dickson, Deborah Crane, Steven Fields, Sherry Dickson, Tamera Bean, Shirley Miller, Hunter Dickson, Jessica Miller, and Kevin Jenkins (investigator LCSD). The majority of these individuals had criminal records or CPS files. Our child was a Texas Scholar prior to the involvement of these individuals. It became necessary to remove her from Chisum High School and place her in A drop-out recovery program. This was done, as the high school principal stated that it was not possible to fully protect against the harboring, while @ school. My husband was told by Gary Young, and I was told by B.J McCOY, that we could not obtain restraining orders against those harboring. Although our daughter was now being schooled in a secure environment, Kyle Dickson communicated with her @ school. He told her that he had something that would help her. He instructed her, "call Paris P.D., tell them your parents said if they could not have you, no one would." She never made the call. When our daughter did not communicate with those harboring, telephones were brought to her, during the night.

    In late November 2007, our child was harbored by Kyle Dickson, Kristin Elmore, Jason Elmore, Steven Fields, and Hunter Dickson. Numerous calls were made to Paris Police Dept., LCSD, and crisis line. When Paris Police Officers communicated with Kristen Elmore or Kyle Dickson, both stated that Kevin Jenkins should be contacted. Following contact with Kevin Jenkins, Paris Police Officers stated we should contact Judge Chuck Superville for an explanation. One source stated that Kevin Jenkins said it was "an emancipation thing." On 11/26/07, Judge Superville had no explanation for Jenkins, Nor did McCoy. It required an 'intervention' to arrange for access to our minor daughter. The intervention is taped, provided to McCoy and The Attorney General's Office. The emotional outbursts of Jenkins, were rather disturbing, and confusing. Again, no charges or restraining orders. Prior to the intervention, Kyle Dickson transported our minor daughter to the Office of Bill Flannery, re: emancipation. It was Kyle Dickson who paid for the emancipation filing. Emancipation was filed on 11/28/07. Scott Cass and Kevin Jenkins transported our child to the "intervention meeting." During this meeting, we were pressured to permit the emancipation. Absolutely not.

    On 11/28/07, I requested that Kevin Jenkins have no contact with our daughter, Scott Cass loudly disagreed. I told Scott Cass that items of theft have been seen in the homes of Kristen and Jason Elmore and Kyle Dickson. I stated that our stolen identity items had been seen in the home of Kyle Dickson. I demanded that both homes be searched. The homes were not searched. Hunter Dickson brought stolen items to school, attempted to send home w/our daughter. Tommy Chalaire, Chisum High School Principal, and I inventoried the items. The bag was locked-up in security office. LCSD notified that items of evidence in theft case, needed to be picked-up. Two days later, Kevin Jenkins called, stated that the guns and computers had been found. He stated that both were found on Crane property, had been buried. He was insistent that the items be picked up @ once. Scott Cass called, he stated that the guns had been buried, the laptop computers were in the home of Deborah Crane. He stated that a member of the Crane household, led them to the buried guns. Upon inspection, the guns/cases/bags did not look as though they had been buried. The appearance was more congruent with acid. I requested that the laptops be fingerprinted. Scott Cass became irrate, yelling loudly in protest. Eventually, he agreed to fingerprint. I was told that I could pick-up the computers in (2) days. When I attempted to pick-up the computers, more protest. (2) months later, LCSD has never released the computers, and calls are not returned. Oddly enough, there was no arrest @ the Crane residence.

    While the guns were evaluated, I handed B.J. McCoy (3) letters from individuals who harbored our daughter:

    1. Kevin Jenkins plan for "sealing the emancipation." The written plan (and
    tape) involved accusations of a criminal nature. Ricky Caffee confronted
    Jenkins, in the presence of Jenkins peers' and Sheriff McCoy. Jenkins
    said he was not answering th question.

    2. Hunter Dickson fantasizing about killing Ricky Caffee w/his (Ricky's)
    own gun.

    3. Kyle Dickson's involvement in the emancipation process.

    12/10/07

    LCSD and District Attorneys office would not return our calls. Harboring continued. I went to LCSD, I waited to speak with B.J. McCoy. After (2) hours, I received a call. Texas Ranger, Brad Oliver, had communicated via e-mail w/Chris Brooks. I was instructed that the District Attorney Investigator would now meet w/me. He stated there was probable corruption @ LCSD, not @ D.A.'s office. He had no explanation regarding Gary Young, D.A.'s refusal to prosecute individuals for harboring/indicement of a minor. I offered to provide documentation and tapes. He stated that he did not need the items, that he may need to make a referral to The Texas Rangers. He stated that he would contact me by the end of that business day. I have yet to hear from Mr. Brooks.

    *Brooks stated that there was only one theft report and one run away report. Neither had been assigned to an officer. There were many deputies who took reports, no records of such.

    FAILURE TO REPORT:

    *Madeline Chance
    *Vance Boehler and ? (11/19/07 @ 0630)
    *Parks
    *Parker
    *Jenkins
    Cass Stated that minor had not been harbored @ the home of
    Shirley Miller. In fact, he and Jenkins transported our
    daughter from Shirley Miller's home to LCSD.

    *Herrera and deputy (no badge)- I interrupted a call from Kyle Dickson and my daughter. 20 min. later, (2) LCSD arrived in separate cars. I was cooking, my daughter taking a bath. One of the officers told me that one car was for our daughter, one for her father?? I explained that my husband had not been home in 8 hours, "how about a car for me?" Herrera apologized. The less polite deputy said that a man had called, and said I had kicked our daughter out of the house. I asked Ricky's mother to take our daughter home for the night. I did not like the imlied comments of "no badge." "no badge" stated that he had to talk to Cass, about not returning with our daughter. Later, someone told me that both cars had flashers going, as entered our small community.

    Woodson-
    The only missing person/runaway report, signed @ LCSD. Woodson went to the home of Steven Fields, as we requested. We followed. Woodson stated that Hunter Dickson, Kristen Elmore, and Steven Fields lied to him regarding our daughter being on the premises. Stated that he had to threaten to arrest them, before they cooperated. I asked why he did not arrest them. He stated,"I am not going to arrest him here. I will wait and arrest him when he is driving down the road."

    01/05/08
    Our house was broken into, entered via brick to window. The following involved: Hunter Dickson, Michael Peru, Brenton Franklin, Steven Smith, Chris Boehler, and Timothy Lemmon. Smith and Lemmen “were” on probation. Hunter Dickson was arrested. They placed some of the identity items back in our home. Mud was tracked all through our house. Much mud was in the rooms where guns and tapes were stored. LCSD refused to fingerprint. Hunter Dickson was arrested by Jimmy Don Clark. Steven Smith and Timothy Lemmen were no longer bound by the terms of probation. The key to our daughter's car was taken from our house. The key was later returned with items from the home of Kyle Dickson.

    01/18/08

    Ricky went to Gary young’s office. Young had no explanation for failure to prosecute. Stated that he did not know that a member of the Crane household had not been arrested.

    01/30/08

    Our daughter's stolen ss card and current driver’s license were sent to our home. Sent with no return address, word written on front of envelope. Our daughter recognized the writing. The items had last been seen in the home of Kyle Dickson. This was reported to the LCSD.

    02/05/08

    There were still remaining stolen items that remained in the possession of Kyle and Hunter Dickson. A LCSD Investigator brought items to the home of John and Ruth James. I explained to him that the key to our daughter's car had been stolen on 01/05/08. This was on our dresser the night of the break-in. Most of the items were last seen @ the home of Kyle Dickson, he stated all items came from the home of Kristen Elmore. He stated that he was aware of the identity issues. He stated, "This is no different than a checker @ Brookshire's looking @ my driver's license, she has access." He stated that he was not aware of the Sheriff's Departments responsibility regarding stolen identity. I stated that the policy could be found on the DPS website. He stated that It was not a crime to 'have ' stolen identity items, there must be evidence that the items were used. The items were listed on theft report, re: Whitsell. Kristen Elmore sent text messages to our daughter's phone, stated that the items were @ the home of Kyle Dickson. The investigator said that Sheriff McCoy's father was gravely ill, all were very stressed.

    Over the past (2) days, Kristen Elmore and Kyle Dickson have resumed attempts to contact our daughter. Where is the justice??

    - Rebecca Caffee
    (903)449-0807

    -Ricky Caffee
    (903)449-0011

  • An unlikely Internet frontier is Paris.