It’s become sort of a common refrain among many that social media is only good for spreading misinformation and disinformation. I’ve even seen some people claim that social media is to blame for misinformation spreading about COVID-19. This is not to say that such information doesn’t exist, and isn’t being spread, but it ignores how much useful information is being spread as well. Indeed, nearly all of the accurate and more factual information I received concerning COVID-19 came via experts on Twitter, and generally anywhere from a week to nearly a month ahead of “official” reports. While I haven’t seen it officially stated anywhere, I have seen people say that those on Twitter were more likely to quickly embrace social distancing and lockdown, as compared to those not on Twitter.
So it didn’t come as much of a surprise to me to hear, on a recent episode of the Andreessen Horowitz (A16Z) podcast, a bunch of oncologists all say that the best information they were receiving was via Twitter. The entire episode is quite interesting — talking with Dr. Bobby Green from Flatiron Health, Dr. Sumit Shah from Stanford’s Cancer Center along with A16Z’s Vineeta Agarwala (who recently joined A16Z and I believe is still a physician at Stanford’s Cancer Center as well) — about how oncologists are dealing with their cancer patients in the midst of the COVID-19 pandemic. I’d recommend listening to the whole thing, but for the purposes of this post, I wanted to highlight just two short parts. The first one comes starting around 10 minutes in (and I think I’ve figured out whose voice is whose, so I believe the transcript here is accurate, though I wouldn’t guarantee it) where they discuss the importance of Twitter, starting with Dr. Green talking about crowdsourcing ideas.
Agarwala: Who is the group that you’re able to engage in real time on such difficult decisions on individual patients?
Green: Well, Vineeta, as one of my seven Twitter followers, you may have seen that I [laughs]…
Agarwala: I saw that you crowdsourced that! Well done…
Green: Yeah, I crowdsourced an early-stage lung cancer question today. We have a multi-disciplinary lung tumor board, Vineeta, where these questions have come up. A lot of curbsiding other docs. That’s been my experience. I think what’s really interesting about the problems we’re facing is that there’s sort of the art and the science of medicine. This is one of those circumstances where the art of medicine and judgment and how to apply knowledge about data to great areas of uncertainty, really comes into play. And it’s been intellectually challenging to do so.
Agarwala: I’m glad you brought up Twitter. Is that a viable tool for you guys for crowdsourcing for even anecdotal data, advice, decision-making in this area?
Green: I’ve personally found the discussions on Twitter about this to be really helpful and really informative. So, to me, yes. You have to be a little more general than you would like to be for PHI [Protect Health Information] reasons, obviously, but I find it very useful.
Shah: I actually think that Twitter is the best source of medical information right now. The majority of the data I’m receiving, I”m actually receiving in real-time from my Twitter feed as opposed to waiting for publications to come out. So it’s actually been very, very helpful to have access to Twitter, and it’s been a tremendous communication tool for experts around the country and the world in general.
It looks like six oncologists from around the world quickly responded to him. It’s kind of amazing to see that in practice.
The second mention of Twitter in the podcast is briefer and comes towards the end. They’re discussing how they’re handling clinical trials for various cancer treatments and whether or not they can or should continue, and Dr. Shah notes:
We are doing an international cancer registry right now on patients with coronavirus. And this was an effort that was largely led through Twitter actually, by recruiting other physicians from other institutions, to capture all this data.
As I said, the whole podcast is quite worth listening to, covering just how oncologists are dealing with treating cancer patients in the midst of a pandemic — but I find it especially fascinating to see just how helpful Twitter has apparently been to them, even as we still keep hearing people insisting that Twitter and other social media is nothing but misinformation.
Last week we talked about just how insane it was that hospital administrators were threatening and/or firing doctors and nurses for speaking out publicly on social media about just how unprepared America’s healthcare system has been for the COVID-19 pandemic — and now we find out it gets even worse. Business Insider has seen a memo sent around by the country’s largest hospital provider, HCA Healthcare, noting that they changed their social media guidelines just as the pandemic got really cooking, to tell those healthcare professionals on the frontline that telling the truth in public might cost them their jobs:
HCA Healthcare, which has 185 hospitals in 20 states, sent an email to employees on March 24 that added new guidelines for social media and media inquiries during the pandemic. The email said HCA employees could get disciplined or even fired for posting information on social media about its policies about treating patients with COVID-19, the illness caused by this coronavirus. The health system also barred employees from speaking to journalists about the virus without explicit permission from HCA’s communications director.
One nurse, Jhonna Porter, told Business Insider that HCA Healthcare had already suspended her for violating these new guidelines and did so retroactively, for her activity before March 24. Porter, a charge nurse at West Hills Hospital in California, said HCA Healthcare suspended her without pay on March 25, a day after sending the email updating its social-media policy.
The situation with Porter seems particularly ridiculous. She was talking in a private Facebook group with her colleagues, and that’s why she got suspended:
Porter said HCA Healthcare issued her suspension over a phone call and told her it was for talking to her colleagues in a private Facebook group about a floor the hospital had turned into one for treating patients with COVID-19. Porter said the health system said her social-media activity was a violation of the federal Health Insurance Portability and Accountability Act, commonly known as HIPAA, which mandates that healthcare workers keep patient information private.
Porter said her post did not name the health system or mention sensitive patient information. Rather, she said, she was being punished for being a whistleblower who called out equipment shortages and other hospital issues.
It is true that HIPAA rules are (often overly) strict, and that does limit what healthcare providers can share, but this seems like trying to pin a false HIPAA violation on what is actually embarrassing whistleblowing in the midst of a pandemic.
It’s ridiculous how many times it needs to be said, but, in the midst of a pandemic, accurate and transparent information sharing is the key to actually getting a handle on this and minimizing the damage. That our hospitals are doing the opposite is not just scary, it’s literally putting lives in danger. Meanwhile, I’ll just toss this paragraph here:
HCA Healthcare is publicly traded, with backing from the private-equity firms Bain and KKR, which took the system private in a $33 billion deal in 2006, at the time the largest leveraged buyout in history. Its market capitalization on Monday was nearly $30 billion.
What is it with people who should know better immediately resorting to censorship and gag orders in the face of important information sharing? With more and more reports directly from doctors and nurses about shortages of necessary protective supplies in the midst of a pandemic, there are also disturbing reports of hospital administrators trying to silence them, and threatening retaliation:
A hospitalist in Indiana took to social media to plead for donations of N95 masks, hoping to help local hospitals prepare for the pandemic to reach them. Shortly afterward, administrators from his hospital contacted the online forum’s moderator and the posts were removed, he told MDedge News. Administrators also warned him not post about personal protective equipment (PPE) because it made the hospital appear incompetent, and continued to monitor his social media posts. “I was told, ‘We can handle this, we don?t need the public?s help,'” the physician said. “I was hurt and upset. I was trying to help protect my peers.”
Clinicians across the country are being told not to speak to the media, and not to post on social media about their experiences. “There?s definitely a big fear among physicians, particularly employed physicians, in terms of what the consequences may be for telling their stories,? said one physician advocate.
Indeed, in at least one case an ER doctor was fired for pleading on social media for more safety equipment. That’s right, in the middle of a massive pandemic, in which we need as many health professionals working as possible, PeaceHealth St. Joseph Medical Center in Washington was fired for telling the truth and trying to get assistance:
Ming Lin, who has worked at the hospital for 17 years and became a local cause celebre for his pleas for more safety equipment and more urgent measures to protect staff, was informed of his termination as he was preparing for a shift at the hospital Friday afternoon, he said.
?I got a message that said, ?Your shift has been covered,?? Lin told The Seattle Times. He phoned his supervisor and was told, ?You?ve been terminated.? Lin said he was told he would be contacted by human resources staff from his employer, TeamHealth, a national firm that contracts with PeaceHealth?s emergency department.
That seems absolutely insane — and apparently lots of doctors agree. Public Citizen has organized a letter from dozens of organizations asking the American Hospital Association to condemn such gag orders and attempts to silence medical professionals telling the public the actual truth of what’s happening on the ground in the midst of a horrific pandemic.
We were appalled to read recent media reports about hospital administrators across the U.S. muzzling doctors, nurses, and other health care professionals with threats of disciplinary action for speaking out about coronavirus patient caseloads and dwindling hospital supplies needed to care for such patients.
It is critical that the public and local, state, and federal government officials fully comprehend the scope of shortages of personal protective equipment, mechanical ventilators, intensive care unit beds, and other medical supplies so that appropriate steps can be taken to mitigate shortages of these essential medical resources, appropriately and fairly allocate limited resources, and thus protect the safety and welfare of health care workers and patients alike.
Attempts to cover up these shortages by muzzling health care workers who are on the front lines of fighting the COVID-19 pandemic are reprehensible and reckless and endanger public health. Although such actions may be commonplace in countries with authoritarian regimes, they are not acceptable in the U.S.
What’s incredible to me is that this even needs to be stated in the first place. It’s depressing how often people resort to censorship and stifling of speech in scenarios where it should be obvious to all that sweeping problems under the rug can mean literal death for health professionals on the front lines.
Dr. Nandigam decided to test drive the new law by doing one of those things that always works out well: suing a patient over a negative review. Kelly Beavers was his target. She had visited his office with her father, who was being seen for early signs of dementia. Beavers recorded the appointment on her phone, as she always does, to make sure she had all the information she needed to care for her father.
Nandigam did not like being recorded. He told her to stop recording and demanded she hand over her phone. He also told her to delete the recording, which she did. Beavers — understandably angered by Nandigam’s treatment of her — complained about his actions on Yelp.
This “Dr’s” behavior today was totally unprofessional and unethical to put it mildly. I will be reporting him to the State of TN Medical Review Board and be filing a formal complaint. How this guy is in business is beyond me. Since when did they start allowing Doctors, to throw a complete temper tantrum in front of Patients and slam things when they get upset? He does not belong in the medical field at all.
For this, Nandigam sued. Kelly Beavers, who had done nothing more than express her opinion about the doctor, ended up starting a GoFundMe to raise the $25,000 needed to defend against Nandigam’s baseless libel accusations. Fortunately for Beavers, attorney Daniel Horwitz stepped up to defend her.
Horwitz has been fighting an uphill battle against baseless libel lawsuits in the libel lawsuit-friendly state. He represented culinary school director Randy Rayburn, who was sued by the person he replaced for things a journalist said in an article about Rayburn’s culinary program. Yeah, that’s how screwed up things were in Tennessee before its new anti-SLAPP law went into effect.
The new law makes things much more painless for defendants facing bullshit lawsuits. And it makes things easier for Horwitz, who obtained a voluntary dismissal [PDF] from Dr. Nandigam shortly after filing this motion to dismiss [PDF] under the state’s anti-SLAPP law.
Vague claims of defamation generally kill lawsuits dead. They also signal the plaintiff is hoping to bludgeon someone into a settlement, rather than actually seeking to have a wrong righted. That’s what happened here and that’s why Nandigam made the smart move to dismiss the lawsuit, rather than allow the bleeding to continue. With the anti-SLAPP law in place, it’s his blood on the line, rather than the defendant’s.
[T]he Plaintiff has failed to plead the substance of any of the allegedly defamatory statements at issue or to attach the statements as exhibits to its Complaint. These omissions serve to deprive both the Court and the Defendants themselves—who are being sued for not only their own statements, but also for one another’s allegedly defamatory statements—of any opportunity to determine what, specifically, the Plaintiff alleges is defamatory. Given this context, the Plaintiff’s failure to plead the substance of its defamation claims as required compels dismissal as a matter of law.
Pounding the point home further, the motion addresses the statements made in Beavers’ complaint, much in the way Dr. Nandigam’s complaint did not.
[N]one of these statements is capable of a defamatory meaning as a matter of law for several reasons. In particular, these statements: (1) are based on fully disclosed, non-defamatory facts; (2) are statements of subjective opinion; and (3) are incapable of being proven false.
Tennessee’s anti-SLAPP law means that Nandigam ability to bully Beavers via lawsuit is limited, and thus he has decided to drop the lawsuit. It’s been dismissed without prejudice which means Nandigam could try to refile, but given the lack of actionable allegations in his first complaint, it seems unlikely taking another pass at it later will somehow conjure actual defamation out of thin air. Anti-SLAPP laws protect people from being bullied for their speech. We need more of them.
All commercial businesses located here will now be required to install and maintain security cameras or face a fine or jail following passage of a new citywide ordinance by the Mayor and Board of Aldermen Tuesday night.
“A matter that has been of increasing concern to the board lately is keeping the citizens of Madison safe, as well as the people who come here to visit our stores, through the use of security cameras,” City Attorney John Hedglin said. “It’s very important to have a record of what happens in as many places as possible.”
Renee Burns, manager of Hop and Habanas, voiced concerns about the cost of surveillance equipment in an interview with WAPT News.
“Surveillance cameras are very expensive, to get everything set up and it could have people close their stores because they can’t afford it,” Burns said.
And if they can’t afford them, the new statute will make sure they can’t afford to stay in business.
Existing businesses will have one year after the ordinance goes into effect to comply. Those that fail to comply may be subject to a $500 fine and/or up to 90 days in jail. Each day of noncompliance is a different violation.
While there have been similar statutes enacted in other cities, these have generally been targeted at businesses already subject to extra regulation, like pawn shops, gun stores, and pharmacies. There has been some mission creep in recent years, leading to other businesses being ordered to install surveillance systems, like cellphone resellers and scrap metal dealers.
On top of that, many of these ordinances also allow for on-demand law enforcement access, allowing the government to extend its surveillance reach without having to pay for the equipment. The specifics of Madison’s new statute haven’t been made available yet, so it’s unclear whether the collection of footage from businesses will be voluntary and tied only to investigations requested by business owners, or whether law enforcement will just be able to show up and demand to see recordings.
Then there are other privacy concerns to address. The city’s attorney has stated that the ordinance covers businesses like doctor’s offices and law offices — places where patient/client confidentiality has long been assumed. Forcing businesses like these to record interactions with their customers would perhaps prevent more-privacy conscious individuals from seeking help. And this new collection of footage could be abused/misused to identify people who thought their requests for legal/medical assistance wouldn’t be turned over to law enforcement.
Burned by negative reviews, some health providers are casting their patients’ privacy aside and sharing intimate details online as they try to rebut criticism.
In the course of these arguments — which have spilled out publicly on ratings sites like Yelp — doctors, dentists, chiropractors and massage therapists, among others, have divulged details of patients’ diagnoses, treatments and idiosyncrasies.
One Washington state dentist turned the tables on a patient who blamed him for the loss of a molar: “Due to your clenching and grinding habit, this is not the first molar tooth you have lost due to a fractured root,” he wrote. “This tooth is no different.”
In California, a chiropractor pushed back against a mother’s claims that he misdiagnosed her daughter with scoliosis. “You brought your daughter in for the exam in early March 2014,” he wrote. “The exam identified one or more of the signs I mentioned above for scoliosis. I absolutely recommended an x-ray to determine if this condition existed; this x-ray was at no additional cost to you.”
And a California dentist scolded a patient who accused him of misdiagnosing her. “I looked very closely at your radiographs and it was obvious that you have cavities and gum disease that your other dentist has overlooked. … You can live in a world of denial and simply believe what you want to hear from your other dentist or make an educated and informed decision.”
Health professionals are adapting to a harsh reality in which consumers rate them on sites like Yelp, Vitals and RateMDs much as they do restaurants, hotels and spas. The vast majority of reviews are positive. But in trying to respond to negative ones, some providers appear to be violating the Health Insurance Portability and Accountability Act, the federal patient privacy law known as HIPAA. The law forbids them from disclosing any patient health information without permission.
Yelp has given ProPublica unprecedented access to its trove of public reviews — more than 1.7 million in all — allowing us to search them by keyword. Using a tool developed by the Department of Computer Science and Engineering at the NYU Polytechnic School of Engineering, we identified more than 3,500 one-star reviews (the lowest) in which patients mention privacy or HIPAA. In dozens of instances, responses to complaints about medical care turned into disputes over patient privacy.
The patients affected say they’ve been doubly injured — first by poor service or care and then by the disclosure of information they considered private.
The shock of exposure can be effective, prompting patients to back off.
“I posted a negative review” on Yelp, a client of a California dentist wrote in 2013. “After that, she posted a response with details that included my personal dental information. ? I removed my review to protect my medical privacy.”
The consumer complained to the Office for Civil Rights within the U.S. Department of Health and Human Services, which enforces HIPAA. The office warned the dentist about posting personal information in response to Yelp reviews. It is currently investigating a New York dentist for divulging personal information about a patient who complained about her care, according to a letter reviewed by ProPublica.
The office couldn’t say how many complaints it has received in this area because it doesn’t track complaints this way. ProPublica has previously reported about the agency’s historic inability to analyze its complaints and identify repeat HIPAA violators.
Deven McGraw, the office’s deputy director of health information privacy, said health professionals responding to online reviews can speak generally about the way they treat patients but must have permission to discuss individual cases. Just because patients have rated their health provider publicly doesn’t give their health provider permission to rate them in return.
“If the complaint is about poor patient care, they can come back and say, ‘I provide all of my patients with good patient care’ and ‘I’ve been reviewed in other contexts and have good reviews,’ ” McGraw said. But they can’t “take those accusations on individually by the patient.”
McGraw pointed to a 2013 case out of California in which a hospital was fined $275,000 for disclosing information about a patient to the media without permission, allegedly in retaliation for the patient complaining to the media about the hospital.
Yelp’s senior director of litigation, Aaron Schur, said most reviews of doctors and dentists aren’t about the actual health care delivered but rather their office wait, the front office staff, billing procedures or bedside manner. Many health providers are careful and appropriate in responding to online reviews, encouraging patients to contact them offline or apologizing for any perceived slights. Some don’t respond at all.
“There’s certainly ways to respond to reviews that don’t implicate HIPAA,” Schur said.
In 2012, University of Utah Health Care in Salt Lake City was the first hospital system in the country to post patient reviews and comments online. The system, which had to overcome doctors’ resistance to being rated, found positive comments far outnumbered negative ones.
“If you whitewash comments, if you only put those that are highly positive, the public is very savvy and will consider that to be only advertising,” said Thomas Miller, chief medical officer for the University of Utah Hospitals and Clinics.
Unlike Yelp, the University of Utah does not allow comments about a doctor’s medical competency, and it does not allow physicians to respond to comments.
In discussing their battles over online reviews, patients said they’d turned to ratings sites for closure and in the hope that their experiences would help others seeking care. Their providers’ responses, however, left them with a lingering sense of lost trust.
Angela Grijalva brought her then 12-year-old daughter to Maximize Chiropractic in Sacramento, Calif., a couple years ago for an exam. In a one-star review on Yelp, Grijalva alleged that chiropractor Tim Nicholl led her daughter to “believe she had scoliosis and urgently needed x-rays, which could be performed at her next appointment. ? My daughter cried all night and had a tough time concentrating at school.”
But it turned out her daughter did not have scoliosis, Grijalva wrote. She encouraged parents to stay away from the office.
Nicholl replied on Yelp, acknowledging that Grijalva’s daughter was a patient (a disclosure that is not allowed under HIPAA) and discussing the procedures he performed on her and her condition, though he said he could not disclose specifics of the diagnosis “due to privacy and patient confidentiality.”
“The next day you brought your daughter back in for a verbal review of the x-rays and I informed you that the x-rays had identified some issues, but the good news was that your daughter did not have scoliosis, great news!” he recounted. “I proceeded to adjust your daughter and the adjustment went very well, as did the entire appointment; you made no mention of a ‘misdiagnosis’ or any other concern.”
In an interview, Grijalva said Nicholl’s response “violated my daughter and her privacy.”
“I wouldn’t want another parent, another child to go through what my daughter went through: the panic, the stress, the fear,” she added.
Nicholl declined a request for comment. “It just doesn’t seem like this is worth my time,” he said. His practice has mixed reviews on Yelp, but more positive than negative.
A few years ago, Marisa Speed posted a review of North Valley Plastic Surgery in Phoenix after her then?3-year-old son received stitches there for a gash on his chin. “Half-way through the procedure, the doctor seemed flustered with my crying child. …,” she wrote. “At this point the doctor was more upset and he ended up throwing the instruments to the floor. I understand that dealing with kids requires extra effort, but if you don’t like to do it, don’t even welcome them.”
An employee named Chase replied on the business’s behalf: “This patient presented in an agitated and uncontrollable state. Despite our best efforts, this patient was screaming, crying, inconsolable, and a danger to both himself and to our staff. As any parent that has raised a young boy knows, they have the strength to cause harm.”
Speed and her husband complained to the Office for Civil Rights. “You may wish to remove any specific information about current or former patients from your Web-blog,” the Office for Civil Rights wrote in an October 2013 letter to the surgery center.
In an email, a representative of the surgery center declined to comment. “Everyone that was directly involved in the incident no longer works here. The nurse on this case left a year ago, the surgeon in the case retired last month, and the administrator left a few years ago,” he wrote.
Reviews of North Valley Plastic Surgery are mixed on Yelp.
Health providers have tried a host of ways to try to combat negative reviews. Some have sued their patients, attracting a torrent of attention but scoring few, if any, legal successes. Others have begged patients to remove their complaints.
Jeffrey Segal, a one-time critic of review sites, now says doctors need to embrace them. Beginning in 2007, Segal’s company, Medical Justice, crafted contracts that health providers could give to patients asking them to sign over the copyright to any reviews, which allowed providers to demand that negative ones be removed. But after a lawsuit, Medical Justice stopped recommending the contracts in 2011.
Segal said he has come to believe reviews are valuable and that providers should encourage patients who are satisfied to post positive reviews and should respond — carefully — to negative ones.
“For doctors who get bent out of shape to get rid of negative reviews, it’s a denominator problem,” he said. “If they only have three reviews and two are negative, the denominator is the problem. … If you can figure out a way to cultivate reviews from hundreds of patients rather than a few patients, the problem is solved.”
One of the biggest problems in trying to fix our insane and out of control healthcare system is the fact that the entire system has totally screwed up economics. The incentive structures are a disaster. The deeper you look at healthcare economics, the more horrific it is. Now, there are some very legitimate reasons how it ended up this way, because there’s a strong argument that a purely “free market” healthcare system leads to very poor healthcare for many people who cannot afford it, and that basic healthcare is something that should be provided much more widely both because of basic human compassion and common sense, but also because there are carryover effects to an unhealthy population that effect us all broadly.
But, when you set up a system that has the incentives totally screwed up, what you end up with is what we have: a system where everything is insanely expensive for no other reason than it can be, and where the quality of healthcare is simply not that good, because there’s no incentive to make it that way. Instead, there’s incentives to simply add up bills as high as possible, with doctors ordering every test imaginable, and focusing on doing more, not doing what’s best.
The folks over at Planet Money have an interesting podcast about some pilot programs that have come about because of Obamacare, that seek to realign the basic incentives of doctors to treat patients in the best way, rather than piling as many charges on them as possible. No matter what you think about everything else in Obamacare, it seems like these little-discussed pilot programs are an unquestionable step in the right direction.
In the Planet Money podcast, they talk about one simple way that the pilot program is having an almost immediate effect: by paying doctors a lump sum for overall treatment of a condition, and actually dinging them for errors, rather than rewarding them by allowing them to add more fees for fixing those problems, significantly fewer problems occur. The program also goes further in including the shocking idea of giving doctors feedback on how they’re doing, using actual data, rather than letting them do whatever they want without consequences.
In theory, you’d hope that doctors are always seeking to do what’s best for the patients, rather than what earns the most money, but it seems clear in practice that when doctors are given a little incentive to do their job better, rather than just do more, they actually do, in fact, do their job better, meaning that not only are people healthier, but the cost of the healthcare goes down. More of that, please.
This post is going to be very short on commentary because the hideous abuse of justice has basically rendered me near speechless.
David Eckert, a resident of Deming, NM, was pulled over by police officers after failing to come to a complete stop at a stop sign. For whatever reason, the officers decided Eckert was hiding something, or perhaps they were unsatisfied that a routine stop hadn’t blown up into something bigger.
They asked him to step out of the car and then searched his vehicle (without his consent). Another officer brought in a drug dog which reacted (a relatively worthless indication of anything — drug dogs can easily be “alerted” by their controlling officers) to the driver’s seat. (Eckert’s lawyer calls into question this dog’s training, presenting documents that claim to show it hadn’t received the proper field training and recertification. See exhibits listed under docket item 27.) Then the officer “observed” that Eckert was standing “erect with his legs together” and his “buttocks clenched.” This was all the justification the Deming police needed to subject Eckert to the following horrific chain of events at a hospital in neighboring Silver City.
1. Eckert’s abdominal area was x-rayed; no narcotics were found. 2. Doctors then performed an exam of Eckert’s anus with their fingers; no narcotics were found. 3. Doctors performed a second exam of Eckert’s anus with their fingers; no narcotics were found. 4. Doctors penetrated Eckert’s anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found. 5. Doctors penetrated Eckert’s anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found. 6. Doctors penetrated Eckert’s anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found. 7. Doctors then x-rayed Eckert again; no narcotics were found. 8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert’s anus, rectum, colon, and large intestines. No narcotics were found.
At no time did Eckert give his consent to these searches. The police did obtain a warrant to rectally search Eckert but that warrant itself was problematic. For one, it was severely lacking in probable cause. For another, it was valid only for Luna County but the searches were executed in Grant County. Third, the warrant was only valid for four hours, up until 10 pm that night. Eckert was held for 14hours and, according to medical records, prep for the colonoscopy didn’t even commence until 1 am the following day.
Why the venue shift? Because the doctor at the Deming hospital told officers the proposed search was “unethical.” Drs. Robert Wilcox and Okay Odocha of the Gila Regional Medical Center apparently had no qualms about forcibly “searching” Eckert eight times.
There’s more in Eckert’s complaint, including the fact that the second x-ray was of his chest, an area completely unrelated to the region where he was supposedly “concealing drugs.” In addition to what can be proven from medical records and police reports obtained by Eckert’s attorney, there are additional allegations that the officers Chavez and Hernandez mocked him and made derogatory comments about his “compromised position.” They also allegedly moved the privacy screen repeatedly to expose him to others in the hospital hallway. This verbal abuse apparently continued during Eckert’s ride back to the Deming police station. Understandably, Eckert now claims to be “terrified to leave the house” and does so “infrequently.”
There are many lawsuits filed where most details are alleged. This isn’t one of them. Most of what’s “alleged” by Eckert is documented by the routine paperwork that accompanies medical procedures and search warrants. And, to add insult to injury, KOB4’s news team states that the Gila Regional Medical Center is billing Eckert for the invasive, non-consensual medical procedures and has threatened to take him to collections for non-payment.
The only question that remains is why no one involved on the “law” side ever thought that anything past the first step on the list above might be excessive. These officers, along with two shamefully compliant doctors, went as far as they could to humiliate and violate someone simply because they could — in a collective effort that looks far more like making Eckert pay for the “crime” of making the cops look stupid than any sort of legitimate law enforcement effort.
You may recall that, yesterday, we wrote about the class action lawsuit filed against dentist Stacy Makhnevich. Makhnevich used ethically and legally dubious forms from the organization Medical Justice, to demand the future copyrights on any reviews a patient might write about her. Then, she used the DMCA process to try to take down negative reviews on Yelp and DoctorBase. When that didn’t work, she threatened the patient, Robert Lee, with a lawsuit, and started sending him invoices for infringement, at $100/day. None of this addressed Lee’s original complaint — that Makhnevich failed to submit the documents he needed to get reimbursed from his insurance company for an expensive procedure.
Of course, as with any typical Streisand Effect situation, all this ended up doing is leading to a hell of a lot more attention to the situation and the negative comments. But, these days, things can go even further than just driving more attention to content someone wanted disappeared. It can lead to even further backlash — especially on sites involving reviews — as we’ve seen with authors who get dinged for questionable actions. If you go take a look at Yelp’s page for Stacy Makhnevich the one star reviews are flowing in… many of them calling her out for what she did. Oh, and Robert Lee’s review, which kicked this whole mess off… is Yelp’s “featured” review at the top of the page. Her current total review rating is at a star and a half. It used to be much, much better.
Some of the reviews are entertaining. I liked this one, which notes “I heard you have to bring your lawyer with you to the dentist’s office.”
For future reference, if you’re that concerned with your online reviews, perhaps just do the best you can and respond to customer complaints promptly. Trying to whitewash complaints seems likely to backfire in big, bad way.
We’ve talked about Medical Justice a few times. This is the highly questionable outfit that gives doctors and dentists forms that these medical professionals then require patients to sign in order to get treated. The forms require the patients to pre-emptively hand over the copyright on any future reviews they might write about that medical professional. The idea is that if the doctor or dentist doesn’t like the review, they can then just use the DMCA to take it down, claiming that the review infringes on their copyright. Yes, this is incredibly sleazy. This clearly has nothing to do with copyright, but rather it’s a use of copyright law to try to censor criticism. There are both ethical and legal problems with this… and the legal problems are about to be discussed in court.
Our individual client, Robert Lee, had a bad experience, not with Makhnevich?s dental work, but with her billing and her failure to submit the documents he needed to get reimbursed by insurance. After his repeated efforts to get her office to do what they were supposed to do, he posted complaints on Yelp and on DoctorBase. Makhnevich threatened to sue him over the posts, and sent DMCA takedowns, but no doubt to her surprise, not only did the patient not remove his comments, but both Yelp and DoctorBase defied the threat of infringement liability, telling Makhnevich that they regarded her agreement with the patient as illegal. Undeterred, Makhnevich sent Lee invoices purporting to bill him $100 per day for the continued copyright infringement. Makhnevich also hired a lawyer who sent additional threats of litigation, but rather than continue to wait to be sued, Lee has now filed suit for a judgment declaring the agreement void, an injunction preventing Makhnevich from imposing the agreement on other patients, and a notice to all Makhnevich patients informing them that they are no longer restrained by the agreement.
A few interesting things come out in the lawsuit. First, the fact that both Yelp and DoctorBase defied the DMCA takedowns. Both companies deserve kudos for that. Standing up to bogus DMCA takedowns is pretty rare these days, because the risk of getting roped into a costly lawsuit is just too high. In this case, the fact that there had been so much news about Medical Justice and it’s questionable concept, and both Yelp and DoctorBase were aware of this earlier, certainly helped. Still, standing up to such threats deserves praise.
Second, the lawsuit notes that not only is this copyright abuse, but the DMCA takedown notices appear to violate HIPAA — the federal Health Insurance Portability and Accountability Act — which is supposed to guarantee privacy for patient info.
In September, 2011, on the letterhead of Aster Dental, a member of Dr.
Makhnevich?s staff sent takedown letters under the Digital Millennium Copyright Act (?DMCA?),
17 U.S.C. § 512(c)(3), to Yelp and to DoctorBase, asserting that Dr. Makhnevich owned the
copyright in Lee?s Commentary pursuant to the Agreement. Defendants warned Yelp and
DoctorBase that, if they did not remove the posts immediately, they would lose the immunity that
the DMCA otherwise provides Internet Service Providers against monetary liability for copyright
infringement. In violation of HIPAA, these takedown notices disclosed plaintiff?s height, weight
and birth date, as well as his picture and his home address
The lawsuit also makes the claim that these comments, even if the copyright on them has been assigned, would still be protected as fair use. But, more importantly, it argues that these agreements in the first place constitute “copyright misuse” noting that the agreements:
constitute unclean hands and, with respect to such purported acquisition and
assertion, constitute copyright misuse in light of the means by which defendants
purportedly acquire the copyrights and because the purpose of such acquisition and
assertion of copyright is to suppress truthful commentary concerning defendants and
matters of public concern.
No matter what, this should be an interesting lawsuit to follow. As Levy explains, beyond the legal arguments, there is an important public policy aspect to this lawsuit:
The purpose of copyright law is to encourage creative expression by providing a temporary monopoly (sadly, less and less temporary) that enables those whose expression is marketable to reap financial rewards for their work. At the same time, copyright law avoids giving any monopoly on facts or ideas. Agreements like the one at stake in the Makhnevich case turn copyright law on its head by taking advantage of the fact that, as a practical matter, ideas and facts are articulated through copyrightable expression; hence anything that a patient writes about a doctor or dentist is likely to have sufficient originality to be copyrighted. The Medical Injustice agreements allow professionals who use them to suppress the underlying opinions and facts, not to reap financial rewards from the expression and not to encourage further creativity. This is a misuse of copyright law and in our view it needs to be stopped.
However, from a future policy perspective, it appears that this lawsuit has already been a win. Within a day of the lawsuit being filed, Medical Justice has announced that it’s retiring the agreement… and that it probably should have earlier. It also claims that it’s telling doctors to stop using them. We’ll see if that actually happens… and if anyone else jumps into the fray instead.