Samantha Cherry’s legal battle with CoxHealth stems from a case of swimmer’s ear suffered by her youngest son last year, she said.
A year ago, said the 30-something single parent, she and her two boys rented a boat at a lakeside resort near Branson and went swimming.
“They were by the dock where there’s always a bunch of algae,” Cherry said.
After they got back home to Ozark, her youngest son, now age 10, “started complaining that the outside of his ear was tender,” Cherry told the News-Leader Wednesday.
A few weeks after the ear was treated by Cox, Cherry filed a civil lawsuit against Cox and its president and CEO, Steve Edwards.
Plaintiff alleges privacy violated
How did the two sides move from managing a child’s ear pain to battling in court for almost a year?
Through social media.
Cherry alleges that a public Twitter message posted by Cox CEO Steve Edwards on Aug. 2 of last year — which featured a screenshot of outraged comments Cherry made on what she considered to be a private Facebook post — was libelous, defamatory, violated the medical privacy of her child and damaged her business reputation as a lead buyers agent with eXp Realty.
(The News-Leader is not reproducing screenshots of Cherry’s Facebook post or Edwards’ Twitter message to accompany this report because the media contain an apparent reference to the first name of Cherry’s underage son.)
According to legal briefs filed on Cherry’s behalf, she seeks damages, attorney and court costs and wants the court to order the posts that offend her to be taken down. (Edwards’ tweet referenced in the lawsuit remained posted online late Friday.)
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Cherry’s lawyer on the suit, former Springfield City Council member and mayoral candidate Kristi Fulnecky, declined to comment on the ongoing litigation Friday, as a matter of professional ethics.
No trial date was set as of last week, but Missouri court records show that Fulnecky and Cox’s lawyer, Bryan Wade, have been exchanging legal briefs since the onset of the suit. Cox’s legal filings argue that the complaint by Cherry has no merit because she took to Facebook in the first place.
“The key fact is that Cherry chose to post this information on Facebook on the internet,” Cox argued in one of its briefs.
In January, Greene County Judge Michael J. Cordonnier denied a motion by Cox to dismiss the proceeding.
A promo code that gave offense
Social media wasn’t the only aspect of digital technology that led to the Cherry vs. Cox lawsuit.
When Cherry sought treatment for her boy from a Cox “virtual visit” system, a promo code using the word “COVID” offended her, she said.
After the boating trip, her son didn’t feel well for more than a week, Cherry recounted. She said he did not exhibit what she considered to be core COVID-19 symptoms: He had no fever, respiratory issues or body aches, but his ear hurt.
At first, her response was along the lines of, “You know, suck it up, he’ll be okay.”
“I’m kind of a tough boymom,” Cherry explained.
But too much time passed with the ear symptoms, so Cherry went to the Cox website for a telemedicine appointment on Aug. 2, according to court filings in her lawsuit.
Cox promoted $30 virtual visits throughout 2019 and 2020, according to past news releases. CoxHealth.com says the visits are intended for patients to “get care fast for acute illnesses like cold and flu, rash, allergies, COVID symptoms and more.”
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Cox: Promo code was ‘public service,’ not ‘conspiracy theory’
In March 2020, attempting to curb the pandemic’s arrival in southern Missouri, the health system offered free telemedicine visits to anyone who needed to be checked for COVID-19 symptoms.
When Edwards tweeted out Cherry’s venting over Facebook, he referenced that decision.
Edwards wrote in that Aug. 2 message, “In March, Cox decided to provide free COVID telemedicine to address the uninsured and reduce exposure risk. In the software, a coupon code had to be chosen instead of insurance field, ‘COVID’ It was a public service. I regret anyone would think it is part of a conspiracy theory.”
Cherry said she’s used the virtual visits at least five times.
“It’s easy, it’s convenient,” Cherry said. And during a pandemic, Cherry said, “I just would prefer to do (a virtual visit); you don’t have to take your kids in anywhere.”
Cherry also said that she doesn’t have health insurance, and that she’s found that simply paying for services like the virtual visits with cash is a cheaper health care option for her family than paying insurance premiums. She had every intention to pay for a $30 telemedicine appointment she attempted to book on Aug. 2, she said.
“I don’t need free health care,” she told the News-Leader. Cherry said she works “two careers” and considers herself a very effective businessperson.
But Cherry objected to part of the sign-up process offered by Cox for the virtual visits. At one point while logging on, Cherry said the online system required patients to input the word “COVID” as a promo code.
“I did not personally feel comfortable with associating the word ‘COVID’ with my son,” Cherry told the News-Leader, echoing comments she previously made on Facebook. She had concerns that entering the term into Cox data storage systems could have ramifications beyond a simple health care visit.
She skipped the promo code and got into the queue for a virtual visit. But soon, she said, a Cox employee called her, saying the promo code “COVID” was a necessary part of the registration process for the visits.
The conversation devolved into an argument, Cherry said. She hung up, angry, and decided to take her son to a Cox urgent care clinic in Ozark. Between the urgent care visit and paying for medication prescribed to her son, that option cost $130, she wrote in an affidavit filed with Greene County courts.
Afterward, she got home and posted about the incident online. “COVID WARNING!!!,” Cherry wrote in a Facebook post decorated with seven emoji symbols representing feelings of concern and anger.
“I did what normal people do with their friends,” Cherry said. “I got on my private Facebook page.”
In a post that appeared to reference her youngest child by name, Cherry complained that the virtual visit was “weird.”
“I wasn’t associating the word COVID with my son anywhere!!!” she wrote.
Jumping online platforms — and into controversy
From Facebook, the affair quickly moved to Twitter.
Steve Edwards, Cox CEO, became an avid user of the platform over the course of the deadly COVID-19 pandemic, his Twitter posts show.
Late Friday he used his account to congratulate the executive director of the Springfield-Greene County Library District for a pop-up vaccine clinic held at a library branch. He thanked one of his counterparts at Cox’s crosstown rival, Mercy hospital, for his service in battling the recent Delta variant surge.
Edwards has also made regular posts about the fluctuating COVID-19 case rates, which have killed 494 Greene County residents to date, according to Johns Hopkins University.
Some of Edwards’ public Twitter messages are more spicy.
On July 1, he told vaccine denialists without public health expertise, “You may be responsible for someone’s death. Shut up.” These comments went viral and were picked up by news outlets including USA TODAY and New York Daily News.
“He likes to shame people on social media,” Fulnecky, Cherry’s lawyer, told the News-Leader in a July 2 email in which she shared unsolicited screenshots of social media commenters riled up by Edwards’ “shut up” tweet.
Cox responds: ‘We will not allow this lawsuit to distract us’
Cox has a different perspective on the legal conflict with Cherry. Kaitlyn McConnell, system director of public relations, provided the News-Leader with a written statement late Friday regarding Cherry’s lawsuit:
“Since these questions tie to ongoing litigation, what we are able to say is limited. However, we do want to offer a few thoughts as previously described in publicly filed information to provide some context.
“CoxHealth and Steve Edwards have been committed to transparency throughout the COVID-19 pandemic. We believe transparency during a pandemic can save lives. This has been a priority as we have worked to keep our community informed of what is happening on the ground, and how to keep people safe. Through this effort, social media has been a tool often used to share updates and dispel misinformation. Clarifying the process to obtain free medical care during the pandemic or sharing information about COVID statistics has not been done to stigmatize anyone in our community.
“In the earliest days of this pandemic, we were very focused on steering potential COVID-19 patients to dedicated testing centers instead of Emergency Rooms. This is because PPE was scarce, and dedicated centers protected our patients and staff from additional exposures, as well as preserving PPE.
“We were concerned that financial barriers might have caused some to unnecessarily go to an ER instead of testing centers. This reality led us to offer Virtual Visits for free, which also allowed a provider to guide patients to the dedicated testing facilities via telemedicine.
“To make it free, the software required a coupon code. Our Marketing team recommended “COVID” to keep it simple for everyone. Although this was used by all patients, it was simply a coupon code and had nothing to do with diagnosis or how we reported COVID case numbers.
“Ms. Cherry’s statement on Facebook worried us that members of the community were wrongly suspicious that we were using the term COVID to falsely categorize patients. We feared this could cause people to skip the telemedicine and dedicated testing process, and instead go to the Emergency Room, placing both our staff and patients at risk. In light of these concerns, Steve shared Ms. Cherry’s Facebook post, alongside an earlier post he had made, to clarify CoxHealth’s testing procedures. Merely reposting her post is not a privacy violation.
“We strongly believe this case lacks merit, and we will trust and rely upon our judicial process to resolve this matter. It is crucial that our time and energy are devoted to preparing to serve patients how and when they need us, especially as we see another wave of COVID overwhelming our region. We will not allow this lawsuit to distract us from our mission to serve our community.”
‘I should have risen above’
Cherry said she thinks that airing the matter on Twitter wasn’t appropriate. “Like, what was going on in your mind that thought that (the tweet) was ever going to fly?”
She added, “I’ve always been a leader, and I have been in multiple positions, management and corporate. There is a code of ethics you’re supposed to follow.”
On Aug. 3 of last year, responding to Twitter users who criticized Edwards for “bad form” with his posting about Cherry’s situation, Edwards said he agreed with the critics.
“I should have risen above, I failed too,” Edwards said online. At the same time, he referenced the “accusations” and “cursing” medical professionals face from some members of the public as society contends with the pandemic.
Cox officials did not directly respond Friday when the News-Leader asked for comment on those remarks.
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