Can You Win a Debate Posting a Patient’s Pics Online?

This question hit my desk. I’ve received some version of this same question over and over.  

A plastic surgeon performed aesthetic surgery on a patient. Objectively the results look good. Subjectively, the patient disagrees.  

Sound familiar? 

There’s a conflict. The patient takes the conflict online. She posts photos which are a few days post-op. They are not reflective of the final outcome.   

The question. Can the doctor post updated photos of this patient online? He says the patient signed an authorization form at intake to use post-op photos for marketing purposes. He also asked if the fresh post-op photos could be construed as defamatory. 

While a physician may have a prior authorization allowing him to tell his side of the story, this will play out poorly with an angry patient. First, the patient will deny she signed such an agreement. I am not disputing whether she did or not. Odds are the patient did sign the authorization. But, when a patient is sent 100 pages to sign at intake, they likely don’t recall what they signed.  

Next, you do NOT want an angry patient’s pics posted online, whether or not it demonstrates you did a great job. Even if you have proper authorization, HIPAA mandates that such authorization can be withdrawn the moment a patient notifies you. Does the patient know the nuances of HIPAA? Doubtful. But they may know enough to file a complaint with the Office of Inspector General for Dept Health and Human Services.  

You see where this is going.  

Generally, if a doctor responds to a negative online review, it should be one-and-done. Don’t get into a debate. Educate the public. Do it in a HIPAA compliant way without disclosing protected health information. Yes, it can often be done. Carefully. 

Also, most review sites do not allow a physician to post photos in their response. So, even if it made sense from a PR perspective, there are no technical ways to seed your response with better photos. 

The next question the surgeon asked was whether the photos could be construed as defamatory. 

Likely, yes.  

The photos tell a story. They are telling the public the surgeon is a butcher. Don’t go to him. The photos suggest this is what a long-term outcome looks like after healing has occurred. And it’s not pretty.  

But this narrative is misleading. It’s a post-op picture with expected post-op swelling and bruising.  

So, even if it’s a photo, and, in theory, photos don’t lie, it’s misleading. The photo’s context is delivering a defamatory message.  

Still, we generally advise against using a defamation lawsuit to bring truth to the public. Reason #1. Reason #2. Reason #3. Lawsuits are expensive, public, and capricious. As the famous boxing-philosopher Mike Tyson once mused, everyone has a plan until they get punched in the mouth.  

Everyone hates getting negative reviews. Every practice will eventually get one. If it’s isolated, and the other reviews are positive, the public will generally overlook it. The public knows you cannot make everyone happy. 

The public is more interested in how you solve problems.  

There are only two ways to remove a negative review. The patient is persuaded to do so. Or the online review site agrees that the message violates its terms of use.  

If neither works, then you can educate the public with a HIPAA compliant response.  

Finally, the solution to pollution is dilution. Have a mechanism to tap into the voices of your mostly happy patients.  

Some physicians believe that if a patient has “outed” themselves online by sharing their protected health information, responding by disclosing more protected health information is fair game. While that intuition is understandable, it’s not accurate. The laws of HIPAA state that protected health information can only be disclosed if the patient has provided their authorization or if there is a regulatory exception to HIPAA. An example of an exception is responding to a credit card chargeback. A valid signed authorization has a number of ingredients.  Including the following statements: 

• The patient or personal representative has the right to revoke the authorization at anytime by submitting a written revocation except to the extent the provider has taken action in reliance on the authorization. 
• The provider generally may not condition its healthcare on the provision of the authorization except (i) for research-related treatment, or (ii) if the purpose of the healthcare is to create information for disclosure (e.g., an employment physical or independent medical exam), in which case the provider may refuse to provide the healthcare if the patient refuses to execute an authorization. 
• The information disclosed per the authorization may be subject to redisclosure by the recipient and no longer protected by HIPAA. 

Note, in that set of required statements, the patient is free to withdraw their authorization.  

In sum, there are more effective ways to manage misleading photos than reciprocating with better photos. 

What do you think?