August 10, 2009
Nursing Student's Blog Post Doesn't Support Expulsion--Yoder v. University of Louisville
By Eric Goldman
Nina Yoder was a University of Louisville nursing student. She posted a blog post to MySpace entitled "How I Witnessed the Miracle of Life” that describes her first-hand observations from a school assignment to go watch a patient-mother giving birth. The blog post now appears to be set to private, but you can see a PDF of it, and the opinion quotes the full text for your reading pleasure. This blog post and the resulting imbroglio sparked a lot of discussion. For more background, see this page with some of the source correspondence (and over 100 comments) and this thread from a nursing students' blog with about 250 comments.
Even if Yoder’s blog post was intended to be tongue-in-cheek, I can see why the blog post was so controversial. As just one example, the blog post repeatedly refers to newborn babies as "creeps." The court does not have kind words to describe the blog post, calling it "vulgar," "distasteful," "offensive," "crass and uncouth," and an "abject failure" as an attempt at humor. My personal take is that the blog post was, at best, ill-advised. I really can't imagine when I would want to work with a nurse who calls my baby a "creep," even if in jest, and (as discussed below) the amount of detail Yoder disclosed about her patient shows a reckless disregard for the confidentiality we expect from medical professionals.
When University of Louisville nursing school administrators discovered the post, they expelled Yoder from the nursing program on the grounds that she violated two contracts: the student honor code and a confidentiality agreement. Given how damaging Yoder's post was to the University's nursing school (after reading it, I suspect few patients would agree to let student nurses observe their treatments), I understand this impulse. However, the administrators’ decision to have two uniformed police officers at the termination meeting (because Yoder had separately blogged about her support of the Second Amendment) and to frisk her for weapons seemed a little over-the-top.
In this ruling, the court reverses the school's expulsion, holding that the school incorrectly interpreted the contracts. The main ruling relates to the contracts' requirement that Yoder not disclose patient confidential information. The defendants allege that the blog post disclosed "the following identifying information about the birth mother: the number of her children; the date that she was in labor; her behaviors; the treatment that she underwent (an epidural); her reaction to labor (vomiting); and the reactions of her family." The court says that none of this information was personally identifiable to the patient or her family because the post "does not disclose the birth mother's name, address, social security number, or the like. It does not disclose her age, race, or ethnicity. The Blog Post does not contain ‘financial’ or ‘employment related information’ about the birth mother. It does not disclose where she was in labor."
Well, the court is correct about the non-identifiable nature of the disclosures if you only consider the four corners of the blog post. No one could use the blog post to identify the mother or her family without relying on additional information. Nevertheless, the court's rationale is completely off-base. I’m confident that any savvy investigator could combine the blog post with other data sources and quickly identify the mom with a high degree of certainty, even if the investigator would rely only on easily obtainable published information. Just knowing the baby’s exact birthdate and limiting the inquiry to the Louisville area immediately limits the pool of possible women to a few hundred. Knowing that the child was the mom's third baby should narrow that restricted pool further. Thus, the court was clearly wrong when it said, categorically, "the Blog Post does not contain information that could possibly lead to the discovery of the birth mother's identity" (italics added). The first person who emails me the correct identity of the patient in question can, as their reward, choose a slinky from my special slinky stash.
As a result, this court's ruling illustrates the false distinction between personally identifiable and non-personally identifiable information. (The same issue arose in the recent Johnson v. Microsoft case declaring that IP addresses are not personally identifiable.) Paul Ohm has an important paper coming out on de-identification that should end this distinction permanently. The ability to combine multiple data sources makes it possible to uniquely identify data subjects even if each individual data source does not enable identification on its own. Especially in light of the healthcare context, this judge was way too charitable to Yoder on this point.
The court also says that Yoder did not violate a "professionalism" requirement in the school’s honor code because the blog post "was not created or used in any professional context." This is analogous to the K-12 school discipline cases (all uncited) where the principal disciplines a student for a blog post made off-campus. Clearly school administrators can reach too far into private conduct when meting out discipline, but again I think the judge is being very charitable here. Yoder was blogging her personal observations about a professional experience she had in a hospital, under confidentiality agreements, while doing her schoolwork. By this reasoning, any post that Yoder wrote in her personal time would not trigger the professionalism code, but given the subject matter of this post, this issue probably warranted more careful treatment.
Having said that, I totally agree with the judge's ultimate conclusion to reinstate Yoder. Although her post raised all kinds of yellow and even red flags about her judgment, the school had a wonderful teaching opportunity to explain/reinforce all kinds of lessons about the professional responsibility of a nurse (like, don't call patients' babies "creeps," even in jest). I think they didn’t capitalize on that opportunity by applying a one-strike rule to Yoder.
An update on Yoder's saga from the Chronicle of Higher Education.
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