I cannot help but notice that both Haim´s attorney and you have been evasive about whether Haim enjoys whistleblower protections. My reading of the law makes it pretty clear that he doesn´t. So I am presuming that his attorneys are going to advance a novel legal theory that goes beyond the letter of the law.
Meanwhile, so many of his supporters think it´s more clear cut than that. Seems a bit deceptive to me. And in general, this article is not really forthcoming about all the facts of this case (as I have argued extensively in other comments). I share your views about trans health care, but your approach to this doesn´t sit right with me.
I am keenly interested in this question, not only with regard to frequency but the severity of the violation.
It’s not uncommon for health care workers to access charts without justification, and I suspect that relatively few of those are prosecuted.
In this case, DOJ alleges that Haim falsely claimed that he was currently caring for adult patients as a justification for renewing his credential and gaining access to the system. That raises his violation to a felony. How many of those are prosecuted? My sense is that it is harder to justify not charging the violation when it’s done under false pretenses. There is a willfulness to the violation that precludes claiming that the violation was inadvertent or done in ignorance of the law. I suspect it’s charged more often but I don’t know.
DOJ is also claiming malicious harm, which raises the maximum prison sentence from five years to ten. This strikes me, however, as the weakest element of the indictment. It would be good to know how frequently that is charged and under what circumstances.
Unless we have the answers to these questions, I don’t see how it can be claimed that it’s a selective or political prosecution. It’s something that Haim’s legal team may want to address, but my understanding is that it is generally a hard thing to prove.
Again, it is an excellent question, but we don’t have the answer.
There are protections for whistleblowers, which means you report your concerns to an appropriate government agency. There is no protection for accessing confidential medical records and leaking them to a journalist.
Since you claim to know the law, what is the culpability of Texas Children’s Hospital's (TCH) continued "Gender Affirming Care" (which is in and of itself an oxymoron), after they told WAPO that they had discontinued the practice. Also, what is your definition of "an appropriate government agency"?
I am not disputing what you say about CPS. I am just making the point that he does not qualify for whistleblower status.
I would repeat my point that at the time he leaked the confidential medical records the procedures were not illegal. Immoral, yes. Complete agreement on that point.
You can take the position that what he did merited risking prosecution. But you cannot claim that his actions did not violate medical ethics or that they were not illegal.
You are correct, I imagine, about the legality of what Dr. Haim did.
But in a broader context, what he did was done in good conscience to expose and right what he perceived as a wrong being done to children, and I'd think that the care-taking concern of a physician would/should supersede mere concerns about documents leaked without identifying information on them. Were the children harmed by Dr. Haim's actions? I doubt it. Would TCH be harmed? Yes, and that's the point of the leak, as it exposes practices which we're now beginning to understand aren't based so much on evidence-based medicine or even genuine care for children (how in hell in a 12-year-old able to distinguish gender dysphoria from growing-up dysphoria?) but on blind ideology and a desire for the expansion of technology into our lives and the profit off that.
I speak as one whose daughter is even now captured within that sick system, against my will, and no, I can't even access records about what they're doing to her because of those same HIPAA regulations. The state, through the medical system, now effectively owns my child with regard to these treatments: Hitler would love it ("children are the property of the state.")
And ... exactly what "medical ethics" are we talking about?
Medical confidentiality is a cornerstone of medical ethics. The moment that Dr. Haim accessed those records, he violated medical confidentiality and committed a HIPAA violation. Everyone has a right to that confidentiality, and Dr. Haim decided that the patients of the gender clinic had less rights than he did.
You may take the position that Dr. Haim was justified in his actions in pursuit of a higher good. I happen to disagree. But either way, that doesn´t change the fact he now faces legal consequences that are the direct result of those actions.
I'd argue that informed consent and bodily autonomy are cornerstones of medical ethics, and that medical confidentiality is meaningless when we're asked if we've had a certain vaccine, and if we can't prove that, then we might lose our jobs or be denied access to a venue. And if a parent can't access his child's medical records because of HIPAA-- wait a minute, that's a bit insane. I just want to know regarding my own daughter (13 years old) and I believe I have a right to that, and the state has no right to withhold that information.
Yes, I'd argue that Dr. Haim was pursuing a higher good, but I'd also argue that he did violate HIPAA statues and in fairness should receive some sanction. But to pretend that his punishment should be severe only serves the established corrupt order of things, when on the other hand our HIPAA rights had been violated in spades during Covid and there were, overall, no sanctions at all for that.
If you go to an appropriate government agency, you have whistleblower protection. Yes, there is still a risk. But you are not very likely to be prosecuted, and you have legal recourse for any retaliation.
If, on the other hand, you violate HIPAA by entering an electronic medical record and leaking confidential records to a journalist, you are creating a clear trail of evidence that definitely exposes you to prosecution. Haim and Rufo both knew this, or could have easily known this. Haim could have and should have sought legal advice before proceeding in this manner, and Rufo should have insisted that he do so before publishing illegally obtained medical records.
Instead Rufo is making a false and quite frankly ridiculous claim that the redaction of the names precludes a HIPAA violation. This is willful ignorance. All you have to do is read the statute.
The law does not provide whistleblower protection for what Haim did. In fact, neither Rufo nor Haim´s lawyers are claiming that Haim has legal whistleblower protection. Rufo is only saying that it´s a matter to be litigated, which I take to mean that Haim´s lawyers are devising a novel legal theory that goes beyond the letter of the law. I am no lawyer, but that sounds like a longshot. I would not want to bet my freedom on it.
Haim and Rufo were extremely reckless. Claiming that this is a political prosecution does not change these facts. Haim is the one that is likely to pay the price. Rufo is not.
The choices being made about who and what topics to prosecute vs ignore or refuse to charge is the political prosecution in my view. Obviously, the federal government going after him betrays the fact that he couldn't very well go to the government in good faith. I wasn't being facetious when asking, and I appreciate your response.
TCH said they were going to stop the procedures before they become illegal. As far as I know there are no legal consequences for having made a false public statement. As to the situation now, I have no knowledge.
According to the indictment, Haim received training that he should report his concerns to CPS. The other possibility would be a health care regulatory agency.
Daniel, I have some familiarity with CPS as we were foster parents for a number of years. I can assure you that while Child Protective Services may be legally the proper place for such complaints, they would fall on deaf ears. So what is a doctor supposed to do when the very legal agencies to which he should report illegal mutilation of children are doing nothing to stop it and are, in many states, actually facilitating it?
I can't blame Haim at all for not taking that road. He would face the same charges, but without the larger megaphone that Mr. Rufo has provided for him.
Oxford describes a whistleblower as “a person who informs on a person or organization engaged in an illicit activity.” There is no mention of “government agency”. Clearly the Hospital knew these practices were continuing in violation of state law, and that services were being billed illegally. As the author says nearby, this will be litigated. Was Snowden a whistleblower? Was Daniel Ellsberg? If the definition of whistleblower becomes too precise, it will effectively kill one of our most effective means of uncovering criminal wrongdoing.
At the time that Haim accessed the confidential medical records, the practices had not yet been made illegal. So even this dictionary definition does not apply.
Even then, dictionary definitions are beside the point I am making. The law does not depend on common, dictionary definitions, but on statutes. The question is whether Dr. Haim had a legal whistleblower status that mitigates his violation of HIPAA.
HIPAA allows for redacted medical records to be revealed either to a healthcare agency, or to a lawyer that is advising the would-be whistleblower. They do not allow for them to be leaked to a journalist. So this provision does not apply to Haim’s conduct.
And there is nothing in HIPPA that permits an unauthorized individual to access the records of a patient that is not under his care. His intention about what to do with that information is irrelevant. He has committed a HIPPA violation the moment he accesses the record.
Moreover, Haim was not revealing illegal practices; he was revealing that the hospital had made a false statement that the hospital had made claiming that they had discontinued the controversial (but not yet illegal) practices.
If you want to stretch the broad, common definition of whistleblower to cover exposing a false statement by a hospital, well fine. But stretching that definition doesn’t mitigate Haim’s legal exposure, or alter the fact that it is unethical to violate medical confidentiality.
Rufo claims that the question of whistleblower status will be litigated. Perhaps it will, according to a novel legal argument that it has not yet been revealed. If and when it is, the court will have an opportunity, and so will I, to consider the argument.
If I find it persuasive, I may change my mind. Until then, I stand by what I have written.
Yes, and in a broader context freedom of speech-- to speak up and expose perceived wrongdoings-- has traditionally been seen as as effective measure to root out "bad ministers" and government corruption. So we might ask if all this lawfare isn't maneuvering to cover up corporate corruption (of course it is!) in the alliance with what now appears to be the corporate handmaiden: our government that's supposed to protect and preserve our autonomy and freedom of speech, not to mention abuses of our children.
I realize you are correct about protections, but I assume you would agree that had he reported his findings to a government agency, it would be years before anyone would notice, read, respond, investigate, etc. In the story of the dumpster-fire Generic drug company Ranbaxy, it took FDA at least 2 years before they even acknowledged the multitude of emails sent by the whistleblower and then multiple more years to complete their investigation. The system is so badly messed up, I can understand why he did what he did. These are human beings that were being harmed.
I agree that reporting to a government agency would probably have been pointless. My only point was that he cannot legally claim whistleblower protection for leaking to a journalist.
I don´t have any trouble understanding why he did what he did, or why so many consider him a hero. But I still think his actions were unethical and ill-advised. And regardless, as a result of his own actions, he now faces serioius legal consequences.
More than anything, I want to make clear the facts of the matter.
If I had been advising him, I would have suggested that he take his concerns to sympathetic state legislators, in particular the prime movers behind the law that passed after Rufo´s article appeared. They would have had the power to investigate, without compromising patient confidentiality.
Thanks.
Why did I think there was some protection for “ whistleblowers?”
Aren’t they a protected class, or only when they further the agenda?
It's a complex legal question. Will be litigated.
I cannot help but notice that both Haim´s attorney and you have been evasive about whether Haim enjoys whistleblower protections. My reading of the law makes it pretty clear that he doesn´t. So I am presuming that his attorneys are going to advance a novel legal theory that goes beyond the letter of the law.
Meanwhile, so many of his supporters think it´s more clear cut than that. Seems a bit deceptive to me. And in general, this article is not really forthcoming about all the facts of this case (as I have argued extensively in other comments). I share your views about trans health care, but your approach to this doesn´t sit right with me.
I am keenly interested in this question, not only with regard to frequency but the severity of the violation.
It’s not uncommon for health care workers to access charts without justification, and I suspect that relatively few of those are prosecuted.
In this case, DOJ alleges that Haim falsely claimed that he was currently caring for adult patients as a justification for renewing his credential and gaining access to the system. That raises his violation to a felony. How many of those are prosecuted? My sense is that it is harder to justify not charging the violation when it’s done under false pretenses. There is a willfulness to the violation that precludes claiming that the violation was inadvertent or done in ignorance of the law. I suspect it’s charged more often but I don’t know.
DOJ is also claiming malicious harm, which raises the maximum prison sentence from five years to ten. This strikes me, however, as the weakest element of the indictment. It would be good to know how frequently that is charged and under what circumstances.
Unless we have the answers to these questions, I don’t see how it can be claimed that it’s a selective or political prosecution. It’s something that Haim’s legal team may want to address, but my understanding is that it is generally a hard thing to prove.
Again, it is an excellent question, but we don’t have the answer.
How many times has the DoJ prosecuted under HIPAA?
This is typical political prosecution.
There are protections for whistleblowers, which means you report your concerns to an appropriate government agency. There is no protection for accessing confidential medical records and leaking them to a journalist.
Since you claim to know the law, what is the culpability of Texas Children’s Hospital's (TCH) continued "Gender Affirming Care" (which is in and of itself an oxymoron), after they told WAPO that they had discontinued the practice. Also, what is your definition of "an appropriate government agency"?
I am not disputing what you say about CPS. I am just making the point that he does not qualify for whistleblower status.
I would repeat my point that at the time he leaked the confidential medical records the procedures were not illegal. Immoral, yes. Complete agreement on that point.
You can take the position that what he did merited risking prosecution. But you cannot claim that his actions did not violate medical ethics or that they were not illegal.
Let’s just be clear on all the facts.
You are correct, I imagine, about the legality of what Dr. Haim did.
But in a broader context, what he did was done in good conscience to expose and right what he perceived as a wrong being done to children, and I'd think that the care-taking concern of a physician would/should supersede mere concerns about documents leaked without identifying information on them. Were the children harmed by Dr. Haim's actions? I doubt it. Would TCH be harmed? Yes, and that's the point of the leak, as it exposes practices which we're now beginning to understand aren't based so much on evidence-based medicine or even genuine care for children (how in hell in a 12-year-old able to distinguish gender dysphoria from growing-up dysphoria?) but on blind ideology and a desire for the expansion of technology into our lives and the profit off that.
I speak as one whose daughter is even now captured within that sick system, against my will, and no, I can't even access records about what they're doing to her because of those same HIPAA regulations. The state, through the medical system, now effectively owns my child with regard to these treatments: Hitler would love it ("children are the property of the state.")
And ... exactly what "medical ethics" are we talking about?
Medical confidentiality is a cornerstone of medical ethics. The moment that Dr. Haim accessed those records, he violated medical confidentiality and committed a HIPAA violation. Everyone has a right to that confidentiality, and Dr. Haim decided that the patients of the gender clinic had less rights than he did.
You may take the position that Dr. Haim was justified in his actions in pursuit of a higher good. I happen to disagree. But either way, that doesn´t change the fact he now faces legal consequences that are the direct result of those actions.
I'd argue that informed consent and bodily autonomy are cornerstones of medical ethics, and that medical confidentiality is meaningless when we're asked if we've had a certain vaccine, and if we can't prove that, then we might lose our jobs or be denied access to a venue. And if a parent can't access his child's medical records because of HIPAA-- wait a minute, that's a bit insane. I just want to know regarding my own daughter (13 years old) and I believe I have a right to that, and the state has no right to withhold that information.
Yes, I'd argue that Dr. Haim was pursuing a higher good, but I'd also argue that he did violate HIPAA statues and in fairness should receive some sanction. But to pretend that his punishment should be severe only serves the established corrupt order of things, when on the other hand our HIPAA rights had been violated in spades during Covid and there were, overall, no sanctions at all for that.
I agree with all of that.
And not being able to access your daughter´s records really is insane. What a tragedy, among so many. Just appalling.
I have a question for you. What if going to the appropriate government official to report gets you ignored, fired, or told to shut up?
If you go to an appropriate government agency, you have whistleblower protection. Yes, there is still a risk. But you are not very likely to be prosecuted, and you have legal recourse for any retaliation.
If, on the other hand, you violate HIPAA by entering an electronic medical record and leaking confidential records to a journalist, you are creating a clear trail of evidence that definitely exposes you to prosecution. Haim and Rufo both knew this, or could have easily known this. Haim could have and should have sought legal advice before proceeding in this manner, and Rufo should have insisted that he do so before publishing illegally obtained medical records.
Instead Rufo is making a false and quite frankly ridiculous claim that the redaction of the names precludes a HIPAA violation. This is willful ignorance. All you have to do is read the statute.
The law does not provide whistleblower protection for what Haim did. In fact, neither Rufo nor Haim´s lawyers are claiming that Haim has legal whistleblower protection. Rufo is only saying that it´s a matter to be litigated, which I take to mean that Haim´s lawyers are devising a novel legal theory that goes beyond the letter of the law. I am no lawyer, but that sounds like a longshot. I would not want to bet my freedom on it.
Haim and Rufo were extremely reckless. Claiming that this is a political prosecution does not change these facts. Haim is the one that is likely to pay the price. Rufo is not.
The choices being made about who and what topics to prosecute vs ignore or refuse to charge is the political prosecution in my view. Obviously, the federal government going after him betrays the fact that he couldn't very well go to the government in good faith. I wasn't being facetious when asking, and I appreciate your response.
I didn’t think you were being facetious.
I would be keenly interested in evidence for selective or political prosecution. I have seen only speculation that this is the case, but no evidence.
TCH said they were going to stop the procedures before they become illegal. As far as I know there are no legal consequences for having made a false public statement. As to the situation now, I have no knowledge.
According to the indictment, Haim received training that he should report his concerns to CPS. The other possibility would be a health care regulatory agency.
Daniel, I have some familiarity with CPS as we were foster parents for a number of years. I can assure you that while Child Protective Services may be legally the proper place for such complaints, they would fall on deaf ears. So what is a doctor supposed to do when the very legal agencies to which he should report illegal mutilation of children are doing nothing to stop it and are, in many states, actually facilitating it?
I can't blame Haim at all for not taking that road. He would face the same charges, but without the larger megaphone that Mr. Rufo has provided for him.
Oxford describes a whistleblower as “a person who informs on a person or organization engaged in an illicit activity.” There is no mention of “government agency”. Clearly the Hospital knew these practices were continuing in violation of state law, and that services were being billed illegally. As the author says nearby, this will be litigated. Was Snowden a whistleblower? Was Daniel Ellsberg? If the definition of whistleblower becomes too precise, it will effectively kill one of our most effective means of uncovering criminal wrongdoing.
At the time that Haim accessed the confidential medical records, the practices had not yet been made illegal. So even this dictionary definition does not apply.
Even then, dictionary definitions are beside the point I am making. The law does not depend on common, dictionary definitions, but on statutes. The question is whether Dr. Haim had a legal whistleblower status that mitigates his violation of HIPAA.
HIPAA allows for redacted medical records to be revealed either to a healthcare agency, or to a lawyer that is advising the would-be whistleblower. They do not allow for them to be leaked to a journalist. So this provision does not apply to Haim’s conduct.
And there is nothing in HIPPA that permits an unauthorized individual to access the records of a patient that is not under his care. His intention about what to do with that information is irrelevant. He has committed a HIPPA violation the moment he accesses the record.
Moreover, Haim was not revealing illegal practices; he was revealing that the hospital had made a false statement that the hospital had made claiming that they had discontinued the controversial (but not yet illegal) practices.
If you want to stretch the broad, common definition of whistleblower to cover exposing a false statement by a hospital, well fine. But stretching that definition doesn’t mitigate Haim’s legal exposure, or alter the fact that it is unethical to violate medical confidentiality.
Rufo claims that the question of whistleblower status will be litigated. Perhaps it will, according to a novel legal argument that it has not yet been revealed. If and when it is, the court will have an opportunity, and so will I, to consider the argument.
If I find it persuasive, I may change my mind. Until then, I stand by what I have written.
Yes, and in a broader context freedom of speech-- to speak up and expose perceived wrongdoings-- has traditionally been seen as as effective measure to root out "bad ministers" and government corruption. So we might ask if all this lawfare isn't maneuvering to cover up corporate corruption (of course it is!) in the alliance with what now appears to be the corporate handmaiden: our government that's supposed to protect and preserve our autonomy and freedom of speech, not to mention abuses of our children.
I realize you are correct about protections, but I assume you would agree that had he reported his findings to a government agency, it would be years before anyone would notice, read, respond, investigate, etc. In the story of the dumpster-fire Generic drug company Ranbaxy, it took FDA at least 2 years before they even acknowledged the multitude of emails sent by the whistleblower and then multiple more years to complete their investigation. The system is so badly messed up, I can understand why he did what he did. These are human beings that were being harmed.
I agree that reporting to a government agency would probably have been pointless. My only point was that he cannot legally claim whistleblower protection for leaking to a journalist.
I don´t have any trouble understanding why he did what he did, or why so many consider him a hero. But I still think his actions were unethical and ill-advised. And regardless, as a result of his own actions, he now faces serioius legal consequences.
More than anything, I want to make clear the facts of the matter.
If I had been advising him, I would have suggested that he take his concerns to sympathetic state legislators, in particular the prime movers behind the law that passed after Rufo´s article appeared. They would have had the power to investigate, without compromising patient confidentiality.
I hope and pray that he consulted an attorney before he went public.
It doesn´t seem like he did. No responsible attorney would have advised him to break the law. Though his wife is an attorney.