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Bid to force Boston Globe to reveal Rx records falls flat

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A Boston judge on Thursday rejected an unusual effort by a hospital operator to force The Boston Globe to disclose medical records a patient shared with the newspaper for an upcoming story about his dealings with the hospital and other Massachusetts mental health providers.

But that judge also will allow Boston-area hospital chain Steward Health Care System, to confirm or deny certain claims about the patient's experience with the provider.

The chain also may give its opinion about "the adequacy of the medical care provided" the man, who suffers from bi-polar disorder, according to a copy of a summary decision provided by the Globe to CNBC after a court hearing.

However, Judge Jeffrey Locke refused to allow Steward Health Care to release more information about the patient's medical records to rebut any allegations in the story set to run Sunday.

Steward had asked the judge in a complaint filed Wednesday to allow it to disclose that mentally ill patient's "protected health information" without his consent to answer purported allegations in the Globe's planned story that he received "inadequate care" at Steward's facilities.

Those records as a matter of federal health information privacy law normally cannot be publicly disclosed by a health-care provider, but they can be disclosed by the patient.

Locke, in denying Steward's request for the right to a "wholesale disclosure of medication information," wrote that, "A patient who criticizes a perceived undue delay in an emergency room does not open the door to the hospital's release of all confidential medical information."

Steward Health Care claims that patient has turned over only "selected portions of his medical records" to the Globe, while refusing to give the hospital chain a waiver so it can release any additional information.

The company also asked for an order from a judge requiring the Globe "to identify and/or produce to the Court and to Steward those portions of [the patient's] medical record that [the patient] has either permitted the Globe to review or authorized it to publish."

But after hearing arguments in the case on Thursday, Judge Locke flatly rebuffed that idea.

"There is no basis for the court to order a newspaper reporter to turn over, to the court or a third party that is part of the putative story, documents, records or reports that it acquired during the newsgathering function, in order to permit an inspection," Locke wrote.

Ellen Clegg, a spokeswoman for the Globe, told CNBC, "We are gratified that the court has confirmed our right to report and publish this story."

Herb Holtz, the lawyer for Steward, said Thursday's ruling was a victory for the hospital chain.

"The judge's decision granted Steward what it had wanted all along -- to obtain the right, which we did, to speak to the medical issues being posed to us by the Globe about a former patient," Holtz said. "The Globe was never the real defendant here. The only thing we were asking for was the ability to speak."

Steward Health's lawsuit claims the Globe "aims to unfairly malign and assassinate the reputation" of the company, which identifies itself as "the highest quality provider of mental health services in Massachusetts, according to a document obtained by CNBC.

"The Globe's primary source is a former patient of Steward's, described, in the Globe's own words, as '....delusional,'" Steward Health Care System said in its suit, which also alleges that the claims that are expected to be made in Sunday's story "are untrue."

Those "false" allegations, according to Steward's complaint, include claims that one of its hospitals discharged the patient "prematurely, when he was not well enough to come home," and that he was discharged "with no money, phone, ID or means of transportation after denying his family members request that he remain admitted until they were available to pick him up."

Other purportedly false allegations outlined by the Globe, according to Steward, include claims that another hospital it owns discharged the man "prematurely," a third hospital failed to admit him upon arrival, and that he was required to wait in the emergency room at that third hospital "for almost two days before being given a bed in [the] psychiatric unit," the company's complaint said.

"Denied the opportunity to respond to these scurrilous allegations and to provide the Globe with all the relevant facts, Steward is faced with the certain and immediate specter of an irreparably damaging, one-sided attack on its delivery of health care to its patients," the complaint filed by Steward says.

"Further, such an untrue and incomplete story can only result in a severely chilling effect on the willingness of this vulnerable population — those with mental illness — to utilize the needed services of Boston's leading provider of behavioral health care," the suit claims.

The Globe filed papers challenging Steward's demands, and detailed the legal case in a story published on Thursday.

Steward Health Care operates 10 hospitals and a rehab facility. Earlier this month, another Globe story detailed how the company has been spending millions of dollars to open new psychiatric units in its hospitals.

According to the Globe story detailing the new lawsuit, the man who is the subject of the yet-unpublished story had dealings with a number of psychiatric facilities, including two of Steward's, the newspaper reported.

The company's suit came after the Globe reporter writing about the patient requested comment about his alleged mistreatment at a facility owned by Steward.

On Wednesday night, Steward served legal papers on the patient in connection with its suit.

"Certainly, the Globe can and will defend itself in court against these specious claims and extraordinary demands," Globe editor Brian McGrory said in the story about the legal wrangle before a hearing Wednesday that lead to the rulings in the paper's favor.

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

"We are very comfortable with our exhaustively researched story about one family's frustrating journey through the mental health system in Massachusetts."

A Steward spokeswoman did not immediately return requests for comment by CNBC.

The lawyer for the company, Holtz, told the Globe that Steward had legal papers served on the patient to give him a chance to be heard in court if he chose, and that the chain is not seeking any damages from him.

Read the full story here.

Read the complaint here.

Read the Globe's response here.

Read the summary decision

.

By CNBC's Dan Mangan

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