Slap: Last-ditch attempt by hospital to stop story feels like intimidation

Prevented by federal rules from speaking to the press about a patient, a hospital chain failed in its subsequent attempt to sue the newspaper and the patient.

A judge ruled last week that Steward Health Care in Massachusetts could not reveal all of a mentally ill patient’s records to The Boston Globe, nor could it force the Globe to reveal its reporting details to the company.

The Globe had been asking the company to comment for a series of stories about the treatment of a mentally ill man – Michael Bourne – who had received care at three different Steward hospitals, among other places. Steward said that it could not talk about Bourne because of the privacy guidelines in the federal Health Insurance Portability and Accountability Act.

Sometimes patients will waive their rights in a written statement, allowing health care providers to speak to the media. In this case, Bourne said specifically that he did not want the hospital chain to use his records as part of a “character assassination” campaign.

Bourne’s fears appear justified, as Steward had a constable sent to his house to serve him with a lawsuit demanding that his records be released. Here’s how Globe editor Brian McGrory described it in a statement:

What we object to is Steward’s thinly veiled intimidation tactic against a former patient. The fact that the company dispatched a constable, at dusk, to the house of a man with a history of mental illness is somewhere between appalling and unconscionable.

Anyone who has covered hospitals knows that they have painted themselves into a corner with HIPAA. When the law went into effect, you could hear the cheering in hospital executive suites. No longer would they have to deal with demands from reporters wanting to find out why an infection broke out in their operating rooms, or why a child with a seemingly uncomplicated issue died on their watch, or why a physician was allowed to harm patients unfettered. They could just claim “patient privacy” and shut the questions down.

The flip side is legitimate. A hospital should be able to talk about all the facts related to any patient care case. (I’ll talk more about that in a later post.)

For now, though, let’s just recap how the hospital chain handled itself in this case. Here are three miscalculations that I think most reasonable folks in journalism and health care would agree don’t represent the best course of action.

1. Suing a well-respected media outlet on the eve of a major story. This isn’t just a “don’t pick a fight with someone who buys ink by the barrel” problem. It’s not just a “Streisand effect” problem. It’s just not smart. It seems especially silly given the Globe’s commitment to investigative reporting and to writing about mental health issues. The paper is not going to duck and cover. And it seems even sillier when you read the actual three-part series, which scarcely mentions Steward and even notes that the patient’s bad experiences at some of these hospitals happened prior to Steward buying them.

2. Suing a patient. Ever. This sends a signal to the rest of your patients that you are not there to care for them. You are there to transact with them. That doesn’t create the environment of trust, mutual respect, and dialogue that are essential for shared health care decision-making and good health outcomes. There are a lot of hospitals in Massachusetts area, and even though Steward owns 11 of them, there are dozens more to choose from.

3. Sending a police officer to a patient’s house – especially a patient with a history of mental illness – and then claiming that you were doing him a favor. Perhaps the strangest turn of events in this very strange case is that the hospital chain is claiming that it was doing Bourne a favor.

Robert Scalese at the Globe has been writing about the lawsuit and expressed some bewilderment, which I share. He notes that Herbert L. Holtz, Steward’s lawyer, said:

Therefore, Steward served the former patient in fairness to provide him both notice of the matter, which the Globe initiated through its reporting, and to give him the chance, if he wanted it, to appear in court and be heard.

Then Scalese adds:

And so we have to ask: Was this about the patient, about journalistic integrity, or about a company’s last-ditch effort to stop a speeding train?

Whatever it was about, it didn’t work. The train arrived at the station. And readers now are able to learn from another compelling, multi-layered and no-easy-answers story about how we still don’t have enough tools for effectively helping people with mental illness.

Image via The Boston Globe/Suzanne Kreiter.