Todd Murashige was surfing off the coast of Oahu, Hawaii on September 9, 2009. He was attacked by a 12 foot tiger shark. The injury to his leg was life threatening. Murashige was rushed to Queens Medical Center in Honolulu. While in the emergency room, he and his injuries were photographed.
In a lawsuit filed on August 26, 2010, Mr. Murashige’s attorney, Paul Smith, alleged the photographs were taken without consent. The lawsuit alleged damages resulting from breach of Hawaii’s patient privacy laws as well as violation of the Health Insurance Portability and Accountability Act. Murashige argued he never gave permission to the hospital personnel to undrape and photograph him. As a result of the photographs, he claims to have suffered emotional distress, mental anguish and humiliation.
While you might think this is a unique case, it is not. On February 3, 2010, Stephen Schafer was kiteboarding off of Palm Beach, Florida. He was attacked by a shark and was taken to Martin Memorial Medical Center for treatment. His wounds were photographed in the center’s emergency room. Schafer subsequently died of his wounds. Hospital officials acknowledged that no photographs should have been taken and launched an investigation. As of this date, Mr. Schafer’s estate has not filed a medical malpractice action against Martin Memorial Medical Center.
These cases show that a medical malpractice claim can come from a click of a camera. When it comes to cameras, sharks and plaintiff’s attorneys, you can never be too careful.
Besides the patent absurdity of the “emotional distress” (I’m a psychiatrist) from hospital staff having copies of pictures of your injuries, it seems that having this photographic evidence of the initial injury would be important documentation for later care. I’m not a surgeon (thank God) but wouldn’t it be helpful to have evidence of the origninal state of the injury when you are being asked to repair either cosmetic or functional damage? Now if the hospital released the photographs to another unauthorized party it would be a different matte of course. And of course a lawsuit isn’t a win. But stopping the trivial crap is the idea.
Photographs should be considered part of the medical record just like Xrays, ultrasound pictures etc. especially in trama cases. One doesn’t get a written permission to ask “what happened or where does it hurt.” Photos in one click can describe an injury or deformity better than a thousand words. Of course, like the rest of trhe medical records it is private.
As a reconstructive surgeon, it is frequently not possible to do surgery without a photo record of the “preexisting” injury either during the initial repair surgery or subsequent secondary surgery. While the patient has the implied need to be at the hospital after acute injury, and have signed (if conscious) the hospital treatment consent, then the body of consent would have language that indicated the photos are necessary for best care of his injury. Of course these photos are not to be published or release outside of immediate caring medical personnel.
Within these parameters, then a lawsuit such as above shark attack incidence is then a frivolous lawsuit .
I’m curious as to how many plaintiff’s attorney-readers would admit that in such cases the documentation with photos is the standard of care and failure to photograph would be a breach of that standard. In reconstructive plastic surgery, the routine use of photographs is analogous to taking an X ray, and should fall within the realm of part of consent to treat.
The fact that teses cases were filed shows that the ocean, like the ER, is a dangerous place and one must be vigilant for sharks.
Is there more to this story. Taking pictures of injuries, as part of the chart and record, are appropriate in a number of specialties; and usually used by many patients to support their own civil suits in Florida. Also, most teaching hospitals have a generic consent form that would include pictures and patients anonymous medical records and pathology to be used for demonstration or teaching, and research.
There is no ‘standard of care’ for documentation. Therefore, I do not believe that argument would be successful.