Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful. Finally, these articles are not intended as specific legal advice. For that, please consult with an attorney licensed to practice in your state.

We continue (and conclude) the discussion we started last week specific to patient photographs. If you missed Part 1, read it here.

To review briefly, photography has been a part of medicine since, well, the advent of photography. However, with the dissemination of the smartphone camera, anyone can grab and share an image with barely two screen taps.

It is essential doctors understand the rules they must follow to avoid breaches of both privacy and ethics. Those who violate these rules run the risk of ruin.

(Note: For the purpose of this topic the rules applying to still photography should be assumed to apply to videos as well.)

There’s a lot to unpack here – let’s resume our discussion by answering some important questions. 

Can I post a patient photograph on a medical chat site as part of a case presentation or to get input from colleagues?

Maybe, depending on whether the patient agrees.

This would be considered an external presentation rather than part of treatment and so you would need a release from the patient if the photograph contains PHI.

Your alternative would be full de-identification but, again, the ethical issue of letting the patient know that you are utilizing their image in this way would apply.

Can my practice post photographs that satisfied patients send in either in the office or on our website or our Facebook page?

Sure, as long as you do so with permission.

The critical point is to remember that just because a patient sends in a photograph to show you how well they are doing, it is not a waiver to publicize it.

This often comes up in ob-gyn practices that have a “baby wall”. In that situation, you need the parents to agree to the use of the picture. Since the photographs will, by definition, contain PHI because they will show the faces of parents and kids, have them sign a release that allows you to post the picture. (By the way, do not even think of claiming, as some practices have, that very young babies are so facially generic that they are “anonymous” in photographs.) This also gives the parents the option to place any restrictions on what is revealed, such as if they are pleased to show off their new son or daughter but do not want it shown that the child was conceived using IVF.

This will apply to any specialty, so the oncologist who wants to post a picture of their Ewing’s sarcoma patient, now disease-free and graduating from medical school, or the orthopedist who wants to post a picture of their patient now able to finish a 5K run, would also get a release.

You have to bear in mind that these are not just “feel good” uses – they are marketing. You would obviously not use a patient photograph in an advertisement or on a billboard without their specific consent, but your office wall, your website, or your Facebook page are just other versions of that ad or billboard in that they are intended to show anyone who might visit what a great doctor you are. The patient who sent in an “FYI” picture with a message of thanks for the great care that they got cannot be assumed to have consented to be a public testimonial.

Finally, bear in mind that if you have a patient who is a celebrity that their pictures must be dealt with the same way. Even if they give their picture to many local businesses as a testimonial, you are not running a dry cleaner and the revelation that they are your patient is PHI and so they must specifically waive confidentiality as to its use.

Can we restrict photography by patients or visitors?

The temptation is to say “Well, good luck with that”, but the fact is that despite the evident difficulty of enforcing restrictions, such are actually required. The answer is therefore that it depends on what is being photographed.

Patients and visitors are not covered entities and so have no confidentiality obligations. However, you do, and it is your responsibility to make sure that a third party does not compromise them.

Obviously, a patient can waive their own privacy by photographing themselves and even posting such on the internet, or by authorizing someone to do it for them. The problem occurs when a visitor is photographing the patient without the patient having agreed to it (for example, an unconscious patient) or the patient or visitor is taking photographs that also include the PHI of others, such as the face and nameplate of the patient in the next bed.

It is a good idea to post a sign (certainly at least in your own office, where you have more control than in the high traffic environment of a hospital or other facility) prohibiting photography. Frankly, people have gotten very used to recording whatever they see, so you might want to put it in context this way to get more cooperation: “Medical care is a very personal matter. Respect the privacy of others as they respect yours. No photography please.” Also, have your staff be alert as well so they can step in if unauthorized photography is going on.

It is very unlikely that unauthorized photography can be fully curtailed, but if a complaint is made and the OCR investigates, you want to be able to show that you took reasonable steps to prevent it. Again, remember the case of the stolen laptop that we discussed above: the violation is not the inability to fully prohibit a third party from a wrongful accessing of PHI but a failure to do what is reasonably possible to prevent such.

If a staff member misuses a patient photograph, what is my liability?

Anything from zero to serious, depending on the facts.

Your obligation is to make clear as policy that unauthorized use of patient images is barred just as unauthorized use of documents about patients is. Your office should have a strict and clear policy, in writing, that details prohibited conduct, including sharing with friends or on social media and mockery or retaliatory uses. To show that you mean what you say, this should be a one-strike firing offense.

If you have a system in which staff members train new hires then you also want to address that the use of photographs for educational purposes must be vetted. This goes back to a case in which an EMT student photographed a patient with a severe facial gunshot wound and then shared the photographs with her class, claiming that it was intended as education. When the case was investigated, the hospital found that ER staff was present and did not intervene when the photographs were taken and disciplined those staff members.

It also has to be made clear that even when staff members have posting rights that patient confidentiality is inviolate. For example, under national labor regulations, an employee may post about the conditions of their work without retaliation. However, if an employee were to post “Dr. Derm doesn’t care about her staff – she made me assist on this disgusting infected rash even though she knows that I am pregnant!”, accompanied by a picture of the patient that includes PHI, that posting would be impermissible as to the image even though the underlying complaint is protected.

These are all proactive points that the OCR will look for, along with actual training of staff, if they come to investigate a complaint.

Is it required to include the possibility of photography in a procedure consent?

Not under HIPAA, which addresses dissemination, but you also need to comply with state laws governing informed consent as well as with basic medical ethics and so should include it.

However, do not overreach and include that the patient thereby releases the images for any use that you intend to put them to. A patient-facing an invasive procedure significant enough to warrant written consent and likely to involve pathology worthy of recording is not reasonably going to focus on your plans to publish or do marketing. Limit the consent to the recording of the image and get a separate consent later for its use.

In summary: Photography in the medical setting is a great adjunct to treatment, research, and teaching but the underpinning requirement of patient confidentiality must always be zealously observed.

[Medical Justice comments: When in doubt, ask the patient. It is not fair to the patient to bury authorization to post photos online in a 20-page surgical consent form. Get their affirmative consent for photos. BTW, for our members, we have a template Photo and Video Release. Just email us at info@medicaljustice.com.com for it. Finally, HIPAA allows a patient to withdraw authorization they previously provided. So, a patient may sign a release giving permission to post their photo online. If down the road, they ask that the photo be removed, you have to do it – assuming doing so is reasonably in your control. You cannot argue they gave prior authorization and they must live with that forever.)

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

Learn how Medical Justice can protect you from medico-legal mayhem… 

Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.