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all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
Before and after photos are the lifeblood of an aesthetic surgeon’s marketing plan.
Nothing is as effective as a full library of high-quality before-and-after pictures. Particularly those showing substantive change. And a natural look.
These photos are considered “protected health information” governed by HIPAA and state privacy laws.
You need the patient’s authorization to post these photos. And such authorization needs to be more than one sentence that says something like “I give consent to Dr. Segal to use before-and-after photos for medical records, educational purposes, and marketing.”
To comply with HIPAA, several ingredients are needed:
What type of photos will be used? What body parts? Everything? Non-intimate body parts? Face, which is identifiable? Breasts, which are theoretically not identifiable? What if the patient’s breasts have unique tattoos or freckling patterns? (Yes, those have served as legal arguments by plaintiff’s attorneys noting their clients were “outed” even though the surgeon promised no one would learn the identity). So, be specific. The more specific the description of the photos, the better defense you will have should the authorization be questioned.
Next, the document needs a time frame for when the authorization will be in force. It can be “forever.” But it needs to be spelled out.
For example:
“Dr. Segal need not approach me again for authorization to use these photos, videos, and/or digital images unless the usage differs from that listed above and this authorization will remain in place indefinitely unless I ask Dr. Segal to terminate use of these photos, videos and/or digital images, in writing and communicated to Dr. Segal.”
Next, there is a statement that HIPAA requires for authorizations:
Note that once photos, videos, and/or digital images are used for any of the authorized purposes above, that information may no longer be protected by HIPAA.
Duh.
Once something is on the Internet, it will likely stay on the Internet somewhere forever.
Next, one cannot make signing such an authorization conditional on treatment:
“Providing authorization is entirely voluntary and will not affect our commitment to treatment by our practice.”
Patients are free to revoke their authorization at any time, for any reason, or no reason at all. They just need to communicate that, typically in writing, to the practice. Once a patient asks to take their photos down, just do it. Informing patients of their right to revoke their authorization was addressed above:
“…this authorization will remain in place indefinitely unless I ask Dr. Segal to terminate use of these photos, videos, and/or digital images, in writing and communicated to Dr. Segal.”
Finally, patients should sign off on where their pictures will be used.
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- 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 our practice’s newsletter to be sent to current or prospective patients
- Digital images to be included in our practice website
- Digital images to be uploaded to the broader Internet to be viewed by the public
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The more specific the authorization, the more defensible the authorization, assuming the patient later expresses shock and dismay that you did precisely what they agreed to.
One additional process issue. I do not believe it is smart practice to have the patient agree to post their before-and-after pictures at the patient intake. At that early stage, you have not developed a substantive doctor-patient relationship. The patient likely just signed a gazillion documents. They could later argue they didn’t know what they were signing. Plus, there are plenty of patients who would freak out if they knew you planned to post their before and after pictures online without any discussion.
In sum, authorization to use before and after photos need to be a formal document. Having a well-crafted authorization form protects you. You want to have it in place before there’s a problem. As they say about parachutes. If you don’t have a parachute when you need it, you’ll never need one again.
What do you think? And let us know if you are interested in receiving a copy of our model Photo Authorization Template.
Medical Justice provides 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 consultation – or use the tool shared below.“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
I wonder if there is a permission required for treatment photos that will never be posted on line or published? For example, in a situation where you want to demonstrate proof of treatment to an auditing agency or Government.
Certain procedures require documentation of an injection or degree of severity before you are permitted to bill Government.
Or Demonstration of a specific diagnosis. When you document in your chart, they may not consider it proof. The stakes are very high. One can go to prison without adequate proof. Photo documentation can also be used to prove you provide uncompensated treatment in some cases to demonstrate you provide free treatment for those who do not fulfill Medicare rules.
A large large library of photos with patient names and dates, say in various long term care facilities can go a long way to proving your intention to follow billing and documentation rules.
Such data may make it very difficult or even impossible to prosecute you. The only people who will ever see them will be Government auditors, or possibly plaintiff attorneys.
Michael M. Rosenblatt, DPM
Glad you are re-circulating this advice, in this day and time when medical boards are punishing physicians for anything they can, given public and/or political pressure. Take the Bernard case in Indiana. Fourteen hours’ deliberation by the IN medical board to decide on reprimand of a physician for affirming (when asked by media) that she had provided reproductive care to a raped 10 year old from an adjacent state (without other identifying information). After AGs from both IN and OH and right wing media and OH Congressman had all published denials that any such incident had happened. It took intrepid local media to verify the existence of the case. Then the doctor was threatened with license revocation and “let off” with fine and reprimand for “privacy violations” (NOT HIPAA) But this reprimand was purely political, and will remain on her record. https://bit.ly/Bernardcase
I am glad that Dr. Bernard was let off with just a reprimand. She did not even deserve that punishment. But in today’s environment once a matter shows up in front of a medical board, they don’t want to appear weak or that they are not policing physicians. So they punish physicians because they can, not necessarily because they should in some cases.
As far as the photography issue is concerned, this is just a narrow application of the photography issues. What about documentation for the medical record of a tumor, or foreign body, where the patient has not given consent in advance, and the records will only be part of the medical record?
What about the photography standards when significant others come to the operating room for a C-Section and whip out their cell phones and jump up and take photos of the baby emerging from the uterus? What responsibilities do we have to safeguard patients from their enthusiastic significant others? What liabilities does this trigger for the operating room staff at 3AM when there is just a skeleton crew working for the surgical case?