Summary judgment was granted on June 10th to plaintiff Catherine Manzione in a multi-million dollar lawsuit.
That means the plaintiff won without even having to present her case to the jury. The judge granted the motion noting there are no disagreements on the facts of the case. In that circumstance, the judge merely needs to apply the law to the agreed upon facts.
Here’s what the dispute is about:
In January, 2011, Ms. Manzione had an elective cosmetic rhinoplasty performed by Dr. Mashkevich. Prior to the surgery, the patient signed a “Photographic Release and Consent” form. In that form, the patient explicitly withheld her consent to use any before or after photos in an advertisement or web publishing. Specifically, the patient’s signature appeared directly below the statement:
“I do not want my photos to be used. I understand that the photographs will be placed in my confidential records only.”
At this same time, plaintiff also signed an “Authorization and Informed Consent” form which stated:
“I give permission to Dr. Mashkevich or a staff member to take still or motion clinical photographs with the understanding that such remain the property of the doctor. If, in the judgment of the Doctor, medical research, education, or science will benefit from their use, such photographs and related information may be published and republished in professional journals or medical books, or used for such publication or use, including as presentation material.”
In 2013, the patient discovered her before-and-after photos were posted on the doctor’s website. In June, 2013, the patient’s lawyer demanded the photos be removed. And the doctor quickly complied.
A lawsuit quickly followed alleging: (1) violation of the Civil Rights Law§§ 50 and 51; (2) unjust enrichment; (3) breach of fiduciary duty; (4) public disclosure of private facts about plaintiff; and (5) negligence per se for violation of: (a) Civil Rights Law§ 50; (b) HIPAA Privacy Rule; (c) CPLR § 4504(a); (d) Education Law§ 6509(9); and (e) 8 NYCRR 60.l(d).
That’s a mouthful.
New York Civil Rights Law § 50 provides that the use of the “name, portrait or picture of any living person” for “advertising [or trade] purposes” absent written consent is a misdemeanor. Civil Rights § 51 authorizes a civil action for injunctive relief and damages, including exemplary damages if a defendant acts knowingly in violation of that protection.
This means if you use a person’s name or picture for advertisement without written consent, you can be sued for damages. The issue in this case hinged on consent. Dr. Mashkevich argued even though there were two documents, one of the documents authorized consent to use the photos.
The court concluded that there were two consents. The first consent broke down the different ways photos might be used with the patient signing in the adjacent line – authorizing or denying consent for that use. This is a defendable way to obtain consent for photos in a surgeon’s practice.
A granular consent to use photos might include:
The usage of these photographs, videos and/or digital images will be limited to:
Medical purposes related to case
Scientific purposes, including seminars and medical articles
Digital or printed materials for patients to view in the office(s)
Digital or printed materials to be included in newsletter to be sent to current or prospective patients
Digital images to be included in our website
Digital images to be uploaded to the broader Internet to be viewed by the public
The problem in this particular case is that the patient explicitly did not consent to the use of her pictures on the surgeon’s website.
As noted earlier, the broader second consent stated: “If, in the judgment of the Doctor, medical research, education, or science will benefit from their use, such photographs and related information may be published and republished in professional journals or medical books, or used for such publication or use, including as presentation material.”
The problem here is that even if the website is arguably an educational forum, authorization to use photos is limited to publication in professional journals or medical book. The surgeon’s website is neither.
So, there you have it.
If you intend to use patient photos for any purpose, you must have the patient’s explicit (written) consent for that purpose. Further, HIPAA and HITECH allow the patient to withdraw such permission down the road. So, if a patient gives consent to use photos on your website and then rescinds that permission a year later, you are obliged to honor that request. Obviously, if the picture is disseminated in a medium that is permanent – such as book or medical journal, you cannot recall the material. But, you can make sure it is not re-published.
Adding additional language into a “Consent to Use Photos” may be helpful:
If I ask Dr. X to terminate use of these photos, videos and/or digital images, I will do so in writing and communicated to Dr. X, and recognize that it will likely take a reasonable time period to accomplish. For example, to remove such pictures from a web site, Dr. X will need to coordinate with a third party webmaster.
Further, termination of prospective use of photos, videos and/or digital images may have no effect on prior distribution- such as the case with medical journals. A published journal, for example, cannot be “recalled.”
By the way, the plaintiff is seeking $23 million.
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A few points: 1) as for the judgment, res ipse loquitur; 2) was this guy on drugs? His actions suggest that he had the brain of a nematode; and3) $23MM??? Really? Was it that bad a job? I have to wonder how much Nancy Pelosi would have sued for.
JH
No, it was not a bad job. In fact, the work was so good the surgeon highlighted the before and after picture in his marketing material (website). Yes, $23M is beyond absurd. It’s offensive particularly since the patient’s before and after nose was “public” anyway.
This was probably done by his staff without his knowledge. One of my assistants took it upon herself to make a booklet for exhibit at seminars without my knowledge or input. She never got permission from any of the patients. Fortunately i found out about it when one of the patients told me on a visit and fortunately the patient wasn’t upset! Common sense is so uncommon among staff these days i think it should be labelled a superpower!
My heart goes out to Dr Mashkevich and his family. We have had a few patients change their mind about online photos, and prompt removal was always sufficient. I cannot understand the motive of this patient, and the desire for 23mil for improper posting is grotesque. Why not ask for a billion? There is something very wrong with this.
Unless this patient was a highly publicized celebrity, the value of this simple, common and excusable mistake should be the piece of paper the apology was written on. As long as attorneys continue to have limitless immorality, this type of absurdity will continue.
Good grief, this one is perversely twisted. Bypassing the consent is a flop done likely by mistake and essentially undefendable. But I wonder if one could argue the case on the merit that facial cosmetic surgery by definition is a public display and thus unconsentable to prohibition of pictorial display. Perhaps that could be a note in the consent. It begs to ask the question what was the judge thinking to summarily slap a 23 mill avalanche – this punishment does not fit the crime even if it were Angelina Jolie.
Summary judgment was awarded just for the determination of liability. At a later date, the judge will award damages. The plaintiff was seeking $23M. It’s unlikely she will receive such a high number. But, who knows? Not a good place to be.
Let this be a message to all surgeons that violating a professional and contractual standard has real consequences. All photos are reviewed, specific consent for web photo use verified, and approved by the doctor– before publication to the website. This is a very important process that must be strictly followed in any practice. I agree his case is not defensible, however; a sincere apology up front may have averted this.
I’ve always believed “before and after” pictures are useless for advertising. I still think the best advertising for plastic surgeons is the existence of their board certification, patient word-of-mouth referral, and being able to communicate with patients as if you actually care how their surgery turns out. You don’t get that kind of sales experience in medical school. I know I didn’t. In our college of podiatric medicine we never had any lectures about speaking with patients. You’d think we would have. But we didn’t.
I still consider that before, after and during treatment photos have their best possible use to:
1. Prove to Government that you actually provided the service
2. Prove to a court that your treatment was within standard of care
Of these by far the most important is proving that you actually performed the service. Government always has the most power to bear against us as individuals. Even a nasty mal-practice suit is nothing like facing the Government.
That said, Dr. Mashkevich could probably have used his excellent result to show other patients who are already sitting in his office. That would seem to have been covered in the consent.
I doubt that the patient will get 23M for this. We have a saying in CA: You can sue for any amount but that does not mean you will get it.
Any judge stupid enough to grant this amount should also understand that the patient will never get it, even after bankrupting the doctor. We don’t have that kind of money. More likely it will be just over 1 million, which is certainly bad enough, but caused by a stupid decision on his part.
Michael M. Rosenblatt, DPM
The vast majority of plastic surgeons would dispute the assertion that before and after pictures have no advertising value. They’d rebut with “a picture is worth a thousand words.”
Patients expect these pictures, and if a plastic surgeon elects to keep such pictures off of his or her website, some percentage of prospective patients will just go elsewhere.