One argument or point to the SB8 thing that I haven't seen come up
yet is "HOW does the plaintiff that files a lawsuit under that law
prove that an abortion even took place?"
Wouldn't HIPAA regulations come into play if John sues Acme
Abortions for providing an abortion for Jane? If Jane says "I
didn't get an abortion. I just went there for a consultation and
then just happened to have a miscarraige while I was there", then
can John force discovery on Acme Abortions to get a copy of the
records that shows what, exactly, Jane visited them for?
One argument or point to the SB8 thing that I haven't seen come up yet
is "HOW does the plaintiff that files a lawsuit under that law prove
that an abortion even took place?"
Wouldn't HIPAA regulations come into play if John sues Acme Abortions
for providing an abortion for Jane? If Jane says "I didn't get an
abortion. I just went there for a consultation and then just happened to
have a miscarraige while I was there", then can John force discovery on
Acme Abortions to get a copy of the records that shows what, exactly,
Jane visited them for?
So get a group of people (they don't even need to be Texas residents!)
to file lawsuits against every taxi company in Texas, against every
doctor in Texas, against every Texas legislator, alleging that they >"assisted" an unnamed woman in getting an abortion.
Mike Anderson <prabbit237@gmail.com.com> wrote:
One argument or point to the SB8 thing that I haven't seen come up
yet is "HOW does the plaintiff that files a lawsuit under that law
prove that an abortion even took place?"
Wouldn't HIPAA regulations come into play if John sues Acme
Abortions for providing an abortion for Jane? If Jane says "I
didn't get an abortion. I just went there for a consultation and
then just happened to have a miscarraige while I was there", then
can John force discovery on Acme Abortions to get a copy of the
records that shows what, exactly, Jane visited them for?
HIPAA doesn't blanketly prohibit distribution of all medical
information. A person can disclose their own medical information. And
if a person sues in a situation where they put their own health at
issue, consent to the release of relevant medical information is deemed given.
According to Barry Gold <bgold@labcats.org>:
So get a group of people (they don't even need to be Texas residents!)
to file lawsuits against every taxi company in Texas, against every
doctor in Texas, against every Texas legislator, alleging that they
"assisted" an unnamed woman in getting an abortion.
I believe some out of state plaintiffs are already doing that.
I had an idea for an opposite approach -- whenever someone wants an abortion, I presmptively sue everyone involved, win default judgements, and then make no effort to collect. Since I've already won, doesn't that prevent anyone else for suing for the same thing?
Mike Anderson <prabbit237@gmail.com.com> wrote:
One argument or point to the SB8 thing that I haven't seen come up
yet is "HOW does the plaintiff that files a lawsuit under that law
prove that an abortion even took place?"
Wouldn't HIPAA regulations come into play if John sues Acme
Abortions for providing an abortion for Jane? If Jane says "I
didn't get an abortion. I just went there for a consultation and
then just happened to have a miscarraige while I was there", then
can John force discovery on Acme Abortions to get a copy of the
records that shows what, exactly, Jane visited them for?
HIPAA doesn't blanketly prohibit distribution of all medical
information. A person can disclose their own medical information. And
if a person sues in a situation where they put their own health at
issue, consent to the release of relevant medical information is deemed given.
I have a more fundamental question. Normally you sue someone to
recover damages. What damages do I incur because I have
information that someone got an abortion? Isn't this the very
essence of a frivolous lawsuit? If I file a suit against the taxi
company or the limo driver or whoever on an issue where I have no
involvement and no possible damages, isn't it possible/likely I
will be sued right back for harassment?
What I am talking about is the person that read Jane Doe's
Facebook post saying, "I'm pregnant." Then sees that person
walking out of Abortions-R-Us out on Main St. The next day he
reads a Facebook post saying that she miscarried and lost the
baby.
Can he file a lawsuit against Abortions-R-Us and obtain her
medical records as part of the discovery? Without those records,
he'd have a hard time proving what she did while at the office (of
course if the Facebook post said "I had an abortion" then it'd be
a lot easier. Or if she told him verbally. Or if she handed him a
copy of the bill, etc. Here, we're assuming she's NOT giving that
info up willingly.)
On 11/25/2021 4:38 PM, Stuart O. Bronstein wrote:
Mike Anderson <prabbit237@gmail.com.com> wrote:
One argument or point to the SB8 thing that I haven't seen come up
yet is "HOW does the plaintiff that files a lawsuit under that law
prove that an abortion even took place?"
Wouldn't HIPAA regulations come into play if John sues Acme
Abortions for providing an abortion for Jane? If Jane says "I
didn't get an abortion. I just went there for a consultation and
then just happened to have a miscarraige while I was there", then
can John force discovery on Acme Abortions to get a copy of the
records that shows what, exactly, Jane visited them for?
HIPAA doesn't blanketly prohibit distribution of all medical
information. A person can disclose their own medical information. And
if a person sues in a situation where they put their own health at
issue, consent to the release of relevant medical information is deemed
given.
Yes, I realize that someone who sues someone else gives up some rights in >that regard. Here, I'm talking about someone who isn't even a party to the >lawsuit at all (or, at most, is a witness.) Remember, you don't sue the
woman who got the abortion. You sue the doctor, the nurse, the person
working the front counter, the taxi driver, the phone company who provided >the cell service used to make the call for the appt, etc.
And I understand that a person can voluntarily disclose their health-care >info.
What I am talking about is the person that read Jane Doe's Facebook post >saying, "I'm pregnant." Then sees that person walking out of Abortions-R-Us >out on Main St. The next day he reads a Facebook post saying that she >miscarried and lost the baby.
Can he file a lawsuit against Abortions-R-Us and obtain her medical records >as part of the discovery? Without those records, he'd have a hard time >proving what she did while at the office (of course if the Facebook post
said "I had an abortion" then it'd be a lot easier. Or if she told him >verbally. Or if she handed him a copy of the bill, etc. Here, we're
assuming she's NOT giving that info up willingly.)
Mike Anderson <prabbit237@gmail.com.com> wrote:
What I am talking about is the person that read Jane Doe's
Facebook post saying, "I'm pregnant." Then sees that person
walking out of Abortions-R-Us out on Main St. The next day he
reads a Facebook post saying that she miscarried and lost the
baby.
Can he file a lawsuit against Abortions-R-Us and obtain her
medical records as part of the discovery? Without those records,
he'd have a hard time proving what she did while at the office (of
course if the Facebook post said "I had an abortion" then it'd be
a lot easier. Or if she told him verbally. Or if she handed him a
copy of the bill, etc. Here, we're assuming she's NOT giving that
info up willingly.)
I'm not an expert on HIPAA. But I would think that the federal law
would preempt any state law that allows access to medical information
without the actual or at least deemed consent of the patient.
On 11/25/2021 11:00 AM, Mike Anderson wrote:
One argument or point to the SB8 thing that I haven't seen come up yet
is "HOW does the plaintiff that files a lawsuit under that law prove
that an abortion even took place?"
Wouldn't HIPAA regulations come into play if John sues Acme Abortions
for providing an abortion for Jane? If Jane says "I didn't get an
abortion. I just went there for a consultation and then just happened
to have a miscarraige while I was there", then can John force
discovery on Acme Abortions to get a copy of the records that shows
what, exactly, Jane visited them for?
I'd like to thank Mike Anderson for this posting, because it gave me an
idea for how to put an end to SB8 and similar laws that other states
might consider enacting.
And I think I have figured out how to get this law repealed, even if the Supreme Court eventually finds it unconstitutional.
You see, AB8 doesn't just say "abortion provider". It says, "anybody who assists" someone in getting an abortion. Say, a taxi driver who takes
the woman to an abortion clinic.
So get a group of people (they don't even need to be Texas residents!)
to file lawsuits against every taxi company in Texas, against every
doctor in Texas, against every Texas legislator, alleging that they "assisted" an unnamed woman in getting an abortion.
You make up random "facts" to support your lawsuit and put them in the papers. (Those are not under oath and not subject to perjury laws). I
guess you better show up so you can move for a default judgment if they don't. If they do, you say, "no evidence" or "plaintiff rests" when
called to present your case.
You're out $50 for each filing, plus the cost of showing up. Surely this
is worthwhile? Maybe a few Texas law firms could assist in this, just
churn out the filings and set up a gofundme to cover the filing fees and
cost of having sympathetic people "serve" the papers.
Within a couple of days, every taxi company, every doctor, maybe lots of other people and businesses will be clamoring for the law to be
repealed. It will be way too many people (well-off people with money to
spend on political campaigns) for the lege to ignore.
Not to mention the legislators being too busy dealing with lawsuits to
enact any more stupid laws (or even necessary./useful ones).
On 11/25/2021 1:38 PM, Stuart O. Bronstein wrote:
Mike Anderson <prabbit237@gmail.com.com> wrote:
One argument or point to the SB8 thing that I haven't seen come up
yet is "HOW does the plaintiff that files a lawsuit under that law
prove that an abortion even took place?"
Wouldn't HIPAA regulations come into play if John sues Acme
Abortions for providing an abortion for Jane? If Jane says "I
didn't get an abortion. I just went there for a consultation and
then just happened to have a miscarraige while I was there", then
can John force discovery on Acme Abortions to get a copy of the
records that shows what, exactly, Jane visited them for?
HIPAA doesn't blanketly prohibit distribution of all medical
information. A person can disclose their own medical information. And
if a person sues in a situation where they put their own health at
issue, consent to the release of relevant medical information is deemed
given.
Stuart Bronstein may have forgotten what Texas SB8 is about.
SB8 is the Texas Heartbeat Act, which makes it illegal to provide or
assist someone to obtain an abortion if the fetus is old enough to have
an audible heartbeat (usually around 6 weeks).
See https://en.wikipedia.org/wiki/Texas_Heartbeat_Act
And Mike Anderson makes an interesting point. Suppose person Y sues
abortion clinic X under the heartbeat act,alleging that clinic X
provided an abortion to woman W. Person Y has to provide evidence that
such an abortion was done.
Where is the evidence supposed to come from? They could call the woman
to the stand, but she would probably invoke her 5th Amendment right to
avoid testifying. They could try to subpoena the clinic's records, but
AFAIK Texas still has doctor-patient confidentiality, and HIPAA would
apply even if TX were to revoke that for abortion providers.
But there's still a problem. Let's say that Y does sue X alleging an
abortion on an unnamed woman. Under the standard rules of procedure,
they have to allege some specific action (or failure to act when
required), and the person who files the suit is supposed to have some evidence that the alleged act occurred.
Person X almost certainly has no evidence. So under normal circumstances "Rule 11 sanctions" would apply: the clinic would be able to recover the
cost of defending themselves from a frivolous lawsuit.
But SB8 specifically prevents the defendant in an SB8 lawsuit from
recovering costs, and that would presumably apply to rule 11 sanctions
as well as other situaitons.
This means that random people could put an abortion clinic out of
business simply by filing random lawsuits. You wouldn't even need to
have a lawyer: just learn how to file the forms. So you lose, but it
only costs you maybe $50 to file the suit. Heck you don't even need to
show up on the day the lawsuit is heard.
There is also the risk that the woman might have "buyer's remorse" and
be willing to testify againt the clinic.
"Mike Anderson" wrote in message news:snqvnm$78f$1@dont-email.me...
On 11/25/2021 4:38 PM, Stuart O. Bronstein wrote:
Mike Anderson <prabbit237@gmail.com.com> wrote:
One argument or point to the SB8 thing that I haven't seen come up
yet is "HOW does the plaintiff that files a lawsuit under that law
prove that an abortion even took place?"
Wouldn't HIPAA regulations come into play if John sues Acme
Abortions for providing an abortion for Jane? If Jane says "I
didn't get an abortion. I just went there for a consultation and
then just happened to have a miscarraige while I was there", then
can John force discovery on Acme Abortions to get a copy of the
records that shows what, exactly, Jane visited them for?
HIPAA doesn't blanketly prohibit distribution of all medical
information. A person can disclose their own medical information. And >>> if a person sues in a situation where they put their own health at
issue, consent to the release of relevant medical information is deemed
given.
Yes, I realize that someone who sues someone else gives up some rights
in that regard. Here, I'm talking about someone who isn't even a party
to the lawsuit at all (or, at most, is a witness.) Remember, you don't
sue the woman who got the abortion. You sue the doctor, the nurse, the
person working the front counter, the taxi driver, the phone company
who provided the cell service used to make the call for the appt, etc.
And I understand that a person can voluntarily disclose their
health-care info.
What I am talking about is the person that read Jane Doe's Facebook
post saying, "I'm pregnant." Then sees that person walking out of
Abortions-R-Us out on Main St. The next day he reads a Facebook post
saying that she miscarried and lost the baby.
Can he file a lawsuit against Abortions-R-Us and obtain her medical
records as part of the discovery? Without those records, he'd have a
hard time proving what she did while at the office (of course if the
Facebook post said "I had an abortion" then it'd be a lot easier. Or
if she told him verbally. Or if she handed him a copy of the bill,
etc. Here, we're assuming she's NOT giving that info up willingly.)
I have a more fundamental question. Normally you sue someone to recover damages. What damages do I incur because I have information that
someone got an abortion? Isn't this the very essence of a frivolous lawsuit? If I file a suit against the taxi company or the limo driver
or whoever on an issue where I have no involvement and no possible
damages, isn't it possible/likely I will be sued right back for harassment?
On 11/26/2021 11:17 AM, Stuart O. Bronstein wrote:
Mike Anderson <prabbit237@gmail.com.com> wrote:HIPPA has a number of exclusions. The government doesn't write laws
What I am talking about is the person that read Jane Doe's
Facebook post saying, "I'm pregnant." Then sees that person
walking out of Abortions-R-Us out on Main St. The next day he
reads a Facebook post saying that she miscarried and lost the
baby.
Can he file a lawsuit against Abortions-R-Us and obtain her
medical records as part of the discovery? Without those records,
he'd have a hard time proving what she did while at the office (of
course if the Facebook post said "I had an abortion" then it'd be
a lot easier. Or if she told him verbally. Or if she handed him a
copy of the bill, etc. Here, we're assuming she's NOT giving that
info up willingly.)
I'm not an expert on HIPAA. But I would think that the federal law
would preempt any state law that allows access to medical information
without the actual or at least deemed consent of the patient.
without loopholes
"Judicial and Administrative Proceedings. Covered entities may disclose protected health information in a judicial or administrative proceeding
if the request for the information is through an order from a court or administrative tribunal. Such information may also be disclosed in
response to a subpoena or other lawful process if certain assurances regarding notice to the individual or a protective order are provided.33
Law Enforcement Purposes. Covered entities may disclose protected health information to law enforcement officials for law enforcement purposes
under the following six circumstances, and subject to specified
conditions: (1) as required by law (including court orders,
court-ordered warrants, subpoenas) and administrative requests; (2) to identify or locate a suspect, fugitive, material witness, or missing
person; (3) in response to a law enforcement official’s request for information about a victim or suspected victim of a crime; (4) to alert
law enforcement of a person’s death, if the covered entity suspects that criminal activity caused the death; (5) when a covered entity believes
that protected health information is evidence of a crime that occurred
on its premises; and (6) by a covered health care provider in a medical emergency not occurring on its premises, when necessary to inform law enforcement about the commission and nature of a crime, the location of
the crime or crime victims, and the perpetrator of the crime.34"
A good example is your infected by COVID status
"Serious Threat to Health or Safety. Covered entities may disclose
protected health information that they believe is necessary to prevent
or lessen a serious and imminent threat to a person or the public, when
such disclosure is made to someone they believe can prevent or lessen
the threat (including the target of the threat). Covered entities may
also disclose to law enforcement if the information is needed to
identify or apprehend an escapee or violent criminal.40"
https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html
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