Wednesday Writs: Krispy Kreme Donuts and HIPAA Edition
Photo by Willis Lam, CC BY-SA 2.0 <https://creativecommons.org/licenses/by-sa/2.0>, via Wikimedia Commons
Note from Em: I apologize for the lack of long form case write ups in recent weeks; my paying job has taken a turn for the insane and I have been working 14 hour days. When I’m not working, I am mentally exhausted. If and when things settle down on the work front, I will get back to business as usual. Thanks!
L1: For today’s Wednesday Writs we begin with a special bulletin:
Krispy Kreme Donuts is now a “HIPPA” covered entity and as such, participation in their “free donut with proof of vaccination” promotion is a “HIPPA” violation and a violation of the Nuremburg Codes.
TIL donut shops are a “HIPPA” covered entity. Everyone knows it’s against the law to let a donut shop know you’re vaccinated.
— Bad Legal Takes (@BadLegalTakes) March 22, 2021
Seriously though, ONE LAST TIME EVERYONE: IT IS HIPAA. Health Insurance Portability and Accountability Act. It does not cover any and all possible discussion of anything related to one’s health care history. It does not apply to reporters. It does not apply to your gossipy neighbor. It applies to health care providers, their employees, and their business associates such as third-party billing companies, and insurers – people who have access to your medical records as part of their jobs. HIPAA does not apply to Krispy Kreme Donuts for offering you a donut for voluntarily disclosing your vaccination status.
As for the Nuremberg Codes, well, I guess you have been warned.
L2: Survivors of childhood sexual abuse covered up by the Catholic Church in Pennsylvania took another blow in their efforts to extend the statute of limitations allowing them to sue their abusers and those who covered for them. Doing so will require an amendment to the Commonwealth’s constitution. Failure to advertise the proposed change in all Pennsylvania counties required them to start the amendment process over last year (and led to the resignation of Department of State chief Kathy Boockvar). Democrats tried to use and emergency amendment process to accelerate the change this session, but the majority GOP contingent of the senate put a stop to it, stating the matter was not emergent.
L3: The Supreme Court heard arguments about a California law allowing union organizers to enter private property of growers to meet with farm workers. The judges were skeptical of the 46-year-old law, but also of its opponent’s argument that such intrusion constituted a “taking” of property.
L4: The Court will hear an appeal over the federal appeals court’s decision to overturn the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev. Last year, the First Circuit upheld Tsarnaev’s convictions but overturned sentencing based on what it deemed a failure by the trial court to adequately question jurors about their exposure to pretrial publicity and for excluding evidence about Tsarnaev’s accomplice, his brother, Tamerlan.
L5: ICYMI: Sidney Powell filed a motion to dismiss the defamation lawsuit against her by Dominion over her self-admittedly ridiculous claims about the company’s role in alleged election fraud. Notably, Sidney herself objects to her motion to dismiss.
L6: No one should have to live in New Jersey, not even its public school teachers.
L7: In the category of “I can’t believe this had to be codified”, the Tennessee Senate has passed a law making it a crime to fail to report a missing child under 12 within 24 hours. The law is the “Evelyn Boswell” law, named after a murdered toddler (content warning).
L8: Facebook’s appeal asking the Supreme Court to dismiss a $15 billion lawsuit alleging it violated the wiretap act was rejected without comment.
L9: Here is someone’s opinion of the 9 best legal shows ever. Is your favorite on this list? Is there one here that you think belongs in the dust bin of history rather than on a “best of” list? Fight it out in the comments.
L8: That should be an interesting case to watch. Not sure if it’s worth $15B, but that is a number that gets ones attention.Report
Its a number designed to do real damage to FB’s bottom line.Report
Follow-up: Illinois Senator who sponsored the elimination of cash-bail, outraged that a driver who recently chased him brandishing a weapon was released on cash bail. If his legislation had been in effect, the driver should still be in jail.Report
L9: I was always puzzled that the Law & Order: SVU unit wasn’t sued into oblivion. One of the common plot points was for them to misinterpret some part of the evidence, then arrest and charge an innocent person with some heinous crime. Some of them wealthy innocent persons, whose personal or professional life was probably ruined by those charges.Report
I always thought the producers’ ability to convince an entire generation that Ice T is a cop just mind boggling.Report
Actually I think its Ice T’s ability that should blow you away.Report
True. What a casting decision!Report
Prosecutorial immunity is a heck of a drug.Report
old and busted: this is a RICO violation!
new hotness: this is a HIPAA violation!Report
L1: For the definitive discussion of this, read On Patients, by Augustine of HIPPA.Report
L1: I was just following orders when I ate that doughnut (repeatedly).Report
L9: The best legal show of all time is Rumpole of the Bailey. Anybody who disagrees can fight me, Since the creator and script writer was a lawyer, it depicted how trials really work within the confines of television. So things like who the judge matters or sometimes a lawyer, including Rumpole, can have something comes up that really just derails the entire trail strategy and finally sometime a defendant can be really likeable and have an excuse but the law is the law and the defendant gets convicted.*
*There was another British cop show about a cop turned chef, who still apparently does police work, where the criminal of the week was a sympathetic boy that came from a horrible home situation. The crime was a robbery that resulted in another young man, the store clerk, getting some real terrible injuries. The main character pointed out to one of the other character, yeah the criminal of the week is sympathetic but he also did something really horrific to somebody totally innocent at the end.
The big problem with a lot of legal TV shows is that they compress how long trials can take, how boring many of them are because few real lawyers like drama in the Court room for their nerves at least, and most importantly that lawsuits are cooperative venture. Usually they show a client going to a lawyer and the lawyers doing all the work. I think that this leads to real people getting annoyed with how much they need to participate in their own case.Report
I loved Rumpole, though I’m not interested in fighting over the ranking. It’s up there and that’s good enough for me.
One of the oddities was that She Who Must Be Obeyed always seemed to think — for no reason anyone could figure out — that women were always after Horace. My wife, who also loved Rumpole, used to pretend to be jealous when I had a young, female second-chair and would give her a vicious nickname. (One, the “BBFY” — Blonde B***ch from Yonkers — eventually left the law and moved to North Carolina to raise goats and make cheese. It was good.) Some of my colleagues got a kick out of it and competed over nicknames.Report
The secret of criminal work you don’t see on TV is that the defense bar and the prosecution are friendlier than most lawyers are to their opponents. You have to be to do it well, because most of the job is stage managing things until only the things that need at trial have a trial.Report
I had two conversations like this before 11:00 a.m. yesterday
Me: Why are you being a difficult asshole?
Other lawyer: No you are the one being a difficult assholeReport
Same in at least some immigration courts and DHS/USCIS, although in other immigration courts there is a bigger tradition of hostility. You need to see the same people a lot, so being agitated all the time at the other side doesn’t work out that well.Report
L7: Wow, a misdemeanor. They’re really throwing the book.Report
L7: In the category of “I can’t believe this had to be codified”, the Tennessee Senate has passed a law making it a crime to fail to report a missing child under 12 within 24 hours.
What is the intended purpose of this law? There are two reasons why a parent would not report their child missing: they had something to do with the disappearance or they are bad parents, which is usually the result of something like substance abuse or mental health problems.
Who is the hypothetical parent whose child has been missing for 20 hours and thinks to him or herself, “I wasn’t going to call the police, but since this is a misdemeanor, I better?” It is hard for me to imagine how we are ever going to stop expanding the role of the criminal justice system in addressing our social problems.Report
Without defending the law, in the former scenario, it may allow police to lean on parents suspected of involvement in the disappearance.Report
Exactly, it’s about getting leverage over suspects and not about helping missing kids.Report
I think a more apt way to put it would be there’s a difference between what it’s intended to be and what it will turn out to be. These laws are written and passed based on a sentiment, or more cynically, to appeal to a sentiment among voters, not out of any real understanding of how law enforcement works.Report
L4: We probably do need to have a discussion about The Death Penalty at some point (I mean, like, “We As A Country”) but until we can tamp down on the whole “shot without so much as a trial first” thing done by the cops, I can’t help but think that the Death Penalty remains a distraction.
And the murder numbers for 2020 apparently hit 1980’s levels. If we start having those numbers year after year?
Yeah, the whole “Law And Order” issue will, once again, start edging toward the #1 spot in voter polling.
I imagine that “abolish police” will be an even worse argument after two or three years of 1980’s numbers than it was after one of them.Report
I actually think a conversation about it nationally is a bad idea when it’s slowly grinding to a halt state by state. I’d be shocked if we see any at the federal level for the next 4 years. The best way to rekindle support/slow that process is to create an opening about what horrible things a particular murderer did and questions about why he gets to live out his days while his victims don’t.Report
How do you see the death penalty as enhancing law and order?Report
I don’t, particularly. If you want to know what I, personally, think, I think that the death penalty is probably bad because I don’t think that the government has the competence to make sure that they got the right guy, charged him appropriately, and didn’t violate his rights on the way.
If you were asking on a moral level, hey. I am sympathetic to the argument that “some people just need killing.”
But, on a purely pragmatic level, it’s not that I think that the death penalty will be a particularly winning argument in the years to come as much as I think that opposing the death penalty will be a loser of an argument.
And when I compare the number of people who die from the death penalty after a trial and umpty-ump appeals to the number of people who die at the agency of police officers, I see that getting rid of the death penalty won’t really give a whole lot of bang for the buck.
And if crime gets worse and worse and worse and returns us to 1980’s levels, we’re going to see a lot of, ahem, “undecideds” break for the guy who is *NOT* arguing that we need the death penalty abolished.Report