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What in the hell is Major League Baseball doing with Biogenesis?

Apr 12, 2013, 9:59 AM EDT

Bud Selig

It was up late last night and was sort of overwhelmed by the Dodgers-Padres brawl, but in case you missed it, go read Matthew’s post about the latest in the Biogenesis business. The upshot:  Major League Baseball is reportedly paying an ex-Biogenesis employee for documents relating to the case.

Feature how this works: your employer goes to one of you health care providers, buys your medical records from them, reads them, and then uses that information to discipline you at work.  You cool with that? If you’re not, please explain to me how what MLB is reportedly doing here is in any way defensible.

Also: if MLB is so convinced that the lawsuit they filed is righteous and justifiable, why are they now circumventing it to get the documents in question?

At some point it would be cool if MLB actually made some sort of statement about what they’re doing here. Because it makes absolutely no sense to me. How on earth do they expect any suspensions they dole out based on this tactic to hold up to an arbitrator’s review?

  1. Kevin S. - Apr 12, 2013 at 10:02 AM

    Still not as bad as the NCAA paying Nevin Shapiro’s attorney to use his criminal proceedings to depose University of Miami players so they could get the dirt on them with regards to impermissible benefits.

  2. Ralph - Apr 12, 2013 at 10:09 AM

    Craig, can you see any potential legal implications for MLB given their actions so far in this?

  3. heyblueyoustink - Apr 12, 2013 at 10:13 AM

    “Feature how this works: your employer goes to one of you health care providers, buys your medical records from them, reads them, and then uses that information to discipline you at work.”

    So much for doctor/patient privelege, if they are doctors at all.

    • iamchris81 - Apr 12, 2013 at 12:40 PM

      A subpoena trumps any doctor/patient privileges. A doctor doesn’t have to tell an investigator anything, but Dr’s. have to comply with subpoena’s or face contempt charges.

    • jwbiii - Apr 12, 2013 at 12:40 PM

      I’m a computer programmer who occasionally works in the medical business and I have had to sign HIPAA non-disclosure agreements.

  4. windycity0301 - Apr 12, 2013 at 10:14 AM

    Craig, did you also read that a current player was buying up documents prior to that in order to eliminate them from any future discovery? What’s good for the goose…and the story never said they were personal records. They might have been scheduling info, transaction info,(ie purchases, appt histories)

    • vallewho - Apr 12, 2013 at 10:27 AM

      I took it as a player buying documents which potentially contain their private and protected medical info, and an employer buying documents which potentially contain private and protected medical info about their employees. One of these seems illegal, or at least it should be. Maybe Bud needs another appointment with Congress.

    • danrizzle - Apr 12, 2013 at 10:44 AM

      I am an attorney, and I don’t know how much bearing my comment has on Biogenesis’s records and duties to their clients. But if a client asks me for a copy of her file, I have to provide it to her. Why? Because under the law, the files I keep actually belong to the client. I may impose a reasonable copying charge if it’s a large thing (and if you send your clients copies of everything as you go, you end up avoiding ever having to produce a file to a client at all), but usually I won’t.

      With that in mind, and with the above caveats regarding lawyers/doctors not really being equal, why does a ballplayer have to purchase information concerning his medical treatment from the provider? Apart from customary copying charges, of course. I guess he’s purchasing the ability to destroy them. Anyway, any doctors out there know if there are record-retention requirements that clinics have to follow under the law?

      • lawrinson20 - Apr 12, 2013 at 12:47 PM

        That last part seems to be the key issue. A person has the rights to copies of his own medical records. But, does he have the right to prevent anyone else from seeing them. And, by “anyone else,” we may be speaking of some agency with actual legal rights (via warrant?) to view them. Destroying the ONLY copies makes that impossible, which may be the rub. If the government ever decided it wanted to get involved, it might have the right to view the records via subpoena. Can a person, effectively, destroy evidence before it is declared “evidence” in a specific and actual proceeding?

        This is all very sordid stuff. I actually wish the government would get involved and that the penalties for making false statements were as vigorously applied as with Bonds or Chris Webber (NBA/NCAA).

        These are national sports, with economies affecting every citizen. There ought to be greater transparency and accountability.

        Also, does the CBA have anything to do with players’ diminished rights in these circumstances? We, heretofore, have been talking about ‘ordinary citizens” rights. Might players have different rights, in which doctor/patient confidentiality is not quite what it is for the rest of us? Seems that there are tests performed on these athletes. There surely must be rules about which aspects of these tests can ever be made public and what is able to be tested with those samples.

      • anxovies - Apr 12, 2013 at 2:07 PM

        I am a lawyer (retired) also and your comment reminds me of the anger I used to experience when paying some medical records company serious money for copies of medical records. For serious injuries and long periods of hospitalization the bill can run into thousands of dollars. Another thing that irked me was paying a doctor $2000 or more an hour to appear for a deposition. In some cases where the injury was not covered by insurance if I didn’t win the case the doctor didn’t get paid, but I still had to pay him in order to get what I needed to win the case and see that he got paid. Sometimes the medical profession seems like a cheap racket.
        Assuming that Biogenesis medical records are covered by HIPPA confidentiality laws I wonder if there is not a violation of federal law in buying records from an ex-employee who presumably obtained them illegally? I am sure the players signed HIPPA releases but would those releases cover records that were not obtained from the records custodian and were from somebody who is getting paid to give them up? I don’t need a crystal ball to see many lawsuits in your future, Mr. Selig.

  5. Cereal - Apr 12, 2013 at 10:14 AM

    In other news, who is dying Bud Selig’s hair ?

    • headbeeguy - Apr 12, 2013 at 10:34 AM

      It’s an unfortunate side effect of treatments he’s been getting at Biogenesis. He’s buying the documents to destroy all proof.

    • Francisco (FC) - Apr 12, 2013 at 11:45 AM

      But does the carpet match the drapes?

      • historiophiliac - Apr 12, 2013 at 11:55 AM

        Please, Jesus, stop.

  6. chill1184 - Apr 12, 2013 at 10:18 AM

    Wow and just when I couldn’t have another reason to hate Selig and his minions. I see the following things arising;

    1. Players potentially suing the clinic for failure to protect private documents

    2. The Ex-employee having the potential of being criminally charged with theft of a corporate document. (if the state of Florida considers medical documents in this same guise)

    3. MLB (and the other leagues for that matter) creating a really dangerous privacy violation precedent.

  7. vanmorrissey - Apr 12, 2013 at 10:18 AM

    One thing mentioned on MLB radio was that this was in response to a player involved trying to buy the documents and destroying them before MLB could get their hands on them.

    • Matt - Apr 12, 2013 at 10:36 AM

      Yes, apparently player(s) were attempting to purchase THEIR OWN medical records related to their own visits to their own doctor. An individual making an effort to obtain their own records, regardless of what then intend to do with them, doesn’t have nearly the moral/ethical issues that an employer paying your doctor for your records would have.

    • chomsky66 - Apr 12, 2013 at 11:26 AM

      Really hope it was Braun buying his own records.

  8. jeffbbf - Apr 12, 2013 at 10:21 AM

    Is it possible that MLB just wants to know what the hell is going on at Biogenesis? Is it possible that MLB wants to know what substances were used so they may be more prepared to test against it in the future – or perhaps educate/warn players about side effects? If, as you say, MLB hasn’t come out with a statement explaining why they are buying the documents, you can not simply jump to the conclusion that their plan is to use the information to suspend players. Your anti-MLB/Bud ranting is getting sillier by the day.

    • Kevin S. - Apr 12, 2013 at 10:24 AM

      MLB has had a decade to show they were interested in educating and warning players about side effects. They’ve shown they have no interest in those conversations, only PR-fueled witch hunts. They get absolutely no benefit of the doubt here.

      • jeffbbf - Apr 12, 2013 at 10:55 PM

        Really? So what you are saying is that you are an ignorant fool. Why don’t you look into the MLB anti-drug program, including educational rookie orientation programs. Stop using the failings of 15 years ago as your “proof” that MLB no longer cares about those issues. Oh – and my post was a statement that there *could* have been other reasons that MLB was buying those documents other than to suspend players. Guess what? Turns out I was right.

  9. sreljac - Apr 12, 2013 at 10:28 AM

    I think you really framed this up poorly buy saying ‘think if your employer went to your healthcare provider’

    A better comparison on this one is, think if you employer went to your drug dealer and bought documents pertaining to his clients and then used that as proof of drug use to fire you.

    • Matt - Apr 12, 2013 at 10:33 AM

      Biogenesis is a entity which provides legitimate medical care for clients. They have an office, licenses to prescribe medication, etc. Completely and totally different than your back alley drug dealer. Now, perhaps the doctors weren’t completely on the up and up, but that doesn’t change the fact that the records were private medical documents meant to be between a patient and his doctor, protected by HIPAA, and subject to all the rules and regulations that records of your visits to your private physician are.

      • sreljac - Apr 12, 2013 at 10:50 AM

        it was an anti-aging and nutritional supplement clinic… lets not pretend like they provided actual healthcare.

      • historiophiliac - Apr 12, 2013 at 11:59 AM

        I don’t think they had a license. My understanding is that he is not a doctor.

        I don’t know what the MLB-union agreement says on their drug policy, but there might be a disclosure requirement on that — in which case, the players might not have the same privacy protections. That would be one thing to check. I’ve seen a lot of employers force employees to sign waivers to get medical info even when they are not entitled to it.

      • indaburg - Apr 12, 2013 at 12:35 PM

        Tony Bosch is not a doctor, but his father Pedro, who wrote prescriptions for Biogenesis clients, is a medical doctor in clear standing: http://ww2.doh.state.fl.us/IRM00PRAES/PRASINDI.ASP?LicId=21147&ProfNBR=1501

      • Matt - Apr 12, 2013 at 12:41 PM

        There had to be some medical licensing involved since they were prescribing drugs to their clients. Therefor it should be contained within the privacy coverage of HIPAA.

  10. rbj1 - Apr 12, 2013 at 10:36 AM

    Arbitration? If I’m a suspended player I take this matter directly to federal court. Personal Jurisdiction issues. And I’m not 100% positive, but I think federal judges take a dim view of “evidence” that has been bought and paid for.

    Countersue Bud Selig and MLB for tortious interference with my contract with my employer (MLB club.)

    As for A-Rod, you have unauthenticated records of a guy who’s credibility is questionable (reneging on paying that woman back) and is at best sleazy (how did he know what Lance Armstrong was taking, or was he just puffing himself up) and third party hearsay (Tony told me he injected A-Rod) with no direct evidence.

    MLB has 0%.

    • anxovies - Apr 12, 2013 at 2:19 PM

      Not sure tortious interference would work since both MLB and the individual clubs are parties to the union contract (you can’t interfere with a contract to which you are a party, that’s breach of contract), and I don’t think that HIPPA provides a private right of action unless they have changed it, but breach of contract and invasion of privacy are probably viable causes of action. Also, if they are buying medical records from a former employee who isn’t authorized to release them, then the feds might step in.

  11. Stiller43 - Apr 12, 2013 at 10:40 AM

    “your employer goes to one of you health care providers, buys your medical records from them, reads them, and then uses that information to discipline you at work.”

    Meh, if youre breaking company policy, yeah. If youre suspended or fired because you had a ill begotten sexual experience and now it burns to pee, then no.

    If my work says i’ll pay you to do this job, but we want you to pass tests for illegal drugs randomly…i agree…then i go break the rules and smoke as much weed as i can and somehow it gets in my medical records and then my employee sees that, thats MY fault i broke the rules, not the employers for enforcing their policy.

    • Matt - Apr 12, 2013 at 10:46 AM

      Your employer has no right to those records. If they want to enforce a policy like drug use it is up to them to do the testing, etc. Your medical records may contain all sorts of other information, like pregnancy, disabilities, recovery from past drug/alcohol abuse, life threatening illnesses, etc which could very easily affect their desire to give you raises, promotions, special projects to advance your career in the future, actions that are mostly illegal, but difficult to prove in court. Additionally, your comment contains the key words in it…you granted permission for their use of drug testing to enforce their policy as a condition of your working, noone ever granted them the permission to obtain medical records from a private doctor.

      • Francisco (FC) - Apr 12, 2013 at 11:50 AM

        It’s impressive how people don’t understand just how sensitive this sort of thing can be and why HIPAA exists at all. I guess you need to actually work with a drug/health care provider to understand it. I consulted for Medco for 3 years and I have to say they take patient information extremely seriously. To the point that most data systems were obfuscated to prevent even low lever staff or development consultants from even sniffing anything close to patient data.

      • dluxxx - Apr 12, 2013 at 12:42 PM

        I used to train employees on HIPAA, and I know that I used a few examples where just looking at or speaking about a person’s medical history and records with someone who isn’t directly involved with the patient’s case can get fined, fired, or jailed.

        http://www.fiercehealthit.com/story/ucla-health-system-pays-865g-settle-hipaa-violation-charges/2011-07-08

        http://journal.ahima.org/2010/04/29/californian-sentenced-to-prison-for-hipaa-violation/

        The second one was just a guy accessing and reading records. Not selling or using them for any purpose. This stuff is taken very seriously.

  12. jm91rs - Apr 12, 2013 at 10:40 AM

    It really seems to me that if there is a player buying documents to destroy them, MLB should really try hard to see what’s in those docs. Maybe no suspensions will be upheld because the documents were ill-gotten, but if there’s something in there that a player is willing to pay for, why can’t MLB?

    Just seems shady all the way around, but when I heard that a player is trying to buy them I desperately wanted that player to get caught.

    • rbj1 - Apr 12, 2013 at 11:17 AM

      Because they are my own medical records. No third party has a right to them without a search warrant or subpoena. Which is a limited government privilege, not a right for a private employer.

      Do you want me to just march into your doctor’s office and see your medical records?

    • jm91rs - Apr 12, 2013 at 2:25 PM

      I think you’re using the term “medical records” pretty loosely here. I know for a fact that if a doctor is prescribing pain pills illegally, they will go after him and the people he’s prescribing them to. I see this the same way. Bosch was into some pretty sketchy stuff, and it’s hardly your normal “medical” stuff.

      I’m anti-bud, but this whole thing is sketchy and I can’t wait to hear what scum bag is trying to buy his own medical records in order to hide them from MLB. Some day we’ll find out, I can guarantee that. I could care less if they get punished for it, if they’re good players public perception will be far worse than a 50 game suspension.

  13. seitz26 - Apr 12, 2013 at 10:41 AM

    Craig, are the guys at Biogenesis considered actual doctors, such that privilege would attach? I mean, I’m sure my medical records from doctor visits are confidential, but if I went to a clinic and got shot up by a “health consultant” or something, would those documents be discoverable? And how much of that turns on what/who I thought I was visiting vs. what the person’s actual credentials are?

    • Kevin S. - Apr 12, 2013 at 10:47 AM

      I think with privilege, what matters is if the patient/client reasonably believes the information to be privileged. As I understand it, Boesch presented himself as a doctor. IANAL, I’m drawing this from Law & Order re-runs, but I think that’s how it works. I’m sure one of our legal eagles will come in and put me straight shortly.

    • jm91rs - Apr 12, 2013 at 2:30 PM

      I agree with your question here. If nothing else there’s at least question about whether or not privilege applies. That question is probably strong enough to prevent any sort of suspension from sticking if MLB is able to get the info, but if they are serious about trying to stop steroids, etc from being a part of the game, I think they need to try. I just wonder if these are even considered medical records at a place like the biogenesis clinic.

  14. thegreatstoneface - Apr 12, 2013 at 10:54 AM

    …so, HIPAA is just a suggestion, i guess. seems to me folks are opening themselves to federal charges here…

  15. Stiller43 - Apr 12, 2013 at 10:59 AM

    @ Matt

    Pretend they only have one mission and the other stuff didnt apply (like affecting bonus/raises and looking into other conditions you may have. If they call your healthcare provider and ask “has John been using illicit drugs?” and they say yes and fax over a positive drug test or something. Is it wrong to be punished for it then? You still broke the rules you agreed to…just because you hid it the right time for the company test shouldnt mean you get off scott free, at least in my eyes.

    If they do purchase the records and find out that X and Y players got these illegal (at least in baseball terms) injections, is anyone going to sit there and defend the player and say it was wrong for them to have been suspended?

    • b453841l - Apr 12, 2013 at 11:41 AM

      @Stiller:

      This isn’t a question of a drug user waiving all of his rights because he may or may not have failed to comply with an employer’s policy. People’s medical records are private data. If healthcare providers distribute the information contained within them to 3rd parties, even close family members of the patient, without the patient’s consent, the healthcare provider is breaking the law and faces stiff penalties.

      If, as part of your employment arrangement, you sign a waiver saying, “I agree not to use illegal drugs while under this employ. I consent to drug tests administered by my employer as it sees fit. I also grant my employer permission to access any and all of my medical records to help ensure I comply with the no drug policy,” your employer might be able to get drug use-related information from some healthcare providers. Some hospitals/clinics have their own forms and will not release any information unless it is properly filled out and signed by the person whose information’s release is being requested.

      So to answer your question, yes, it is fair for an employee who violates his employer’s policies to face the ramifications for doing so, but it is not fair/legal for the employer to obtain data to which it has no access rights.

  16. chip56 - Apr 12, 2013 at 11:18 AM

    In fairness – if the article that led Craig to get his tighty whities in a bunch is correct then it’s possible that MLB is trying to buy the documents to keep them from being destroyed.

    The linked article reports that one of the players affiliated with the lab is trying to buy the documents to destroy them before MLB can get their hands on them.

    Shady yes, but outside of just dropping it and walking away (which I believe is the desire of certain bloggers who not only question the legitimacy of such investigations but the impact steroids have on performance) I don’t see what choice MLB has.

    • boredfriday - Apr 12, 2013 at 11:54 AM

      “I don’t see what choice MLB has.”

      They could choose not to hand out bribes for private information. Crazy, I know.

      • jm91rs - Apr 12, 2013 at 2:39 PM

        Everyone is so focused on privacy here, but what about the player buying the records. It HAS to be illegal as well. When I call my doctor and ask for records, they don’t hand me the original copies, they give me a copy and keep the originals. A player here is trying to buy his original copies so that no one else can see it. Essentially bribing the employee into not talking and taking away the proof in case he does.

        MLB may not have any legal choice but to just let this happen, but I wonder if there is any clause in the CBA that would allow them to suspend the player for trying to hide the records, even if they don’t know what the records actually say.

      • chip56 - Apr 12, 2013 at 7:16 PM

        They’re not handing out bribes to get private information – they’re trying to buy something to prevent someone (reportedly Alex Rodriguez) from covering up his continued steroid use.

        Why is it alright for the player to bribe someone to destroy evidence against him but not alright for MLB to pay to prevent the player from doing that?

  17. onbucky96 - Apr 12, 2013 at 12:45 PM

    Time for Bud to throw up his arms…Tie Game! So glad he and his daughter don’t own the Brewers anymore. Now if we could just get Bud out of the Commish job…

  18. raysfan1 - Apr 12, 2013 at 1:05 PM

    Pedro Bosch is a legit doctor even if Tony Bosch is not. The records of that clinic are covered under HIPAA. Even records of whether a person had an appointment are protected health information. Intentional violations can come with fines up to $250K for each instance. Selling a patient’s original records to the patient (as opposed to copies) would be ethically questionable and potential problem if audited. Selling them to a third party, however, seems like a clear violation of the law.

  19. Stiller43 - Apr 12, 2013 at 1:29 PM

    I agree medical records are private and there are reasons for them to be so. Theyre YOUR business. But are you going to say “even though we know these players cheated, none of them should be punished because MLB shouldnt have had the access to know they were cheating.”…?

    I dont buy that. If you know theyre using banned substances (maybe those are also helping them pass company drug tests), they should be popped…regardless of how MLB finds out.

    • jm91rs - Apr 12, 2013 at 2:47 PM

      Do you think everyone giving you a thumbs down and saying that the private medical records should stay private, will just dismiss the info when we all find out? “What, Braun cheated then tried to bribe employees into destroying his records? Well I’ll just forget about that because MLB found this out in an illegal way.” Nope, they’ll all be on here questioning Braun’s (or whoever) abilities for the rest of their days. They may question any punishment the player gets (I personally think that if the player is well known, the negative public perception would be enough punishment).

      When/if the info comes out, it won’t matter to most people how it came about, just that it did.

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