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.

The US has been abuzz in activity since the Supreme Court overturned Roe versus Wade in its Dobbs versus Jackson Women’s Health Organization decision. What was previously legal in all states soon became illegal in some states.

What’s the law in Ohio?

On April 11, 2019, Ohio Governor Mike DeWine signed the Human Rights and Heartbeat Protection Act, which bans abortion in Ohio after any embryonic cardiac activity is detected. On June 24, 2022, after the Supreme Court of the United States overturned Roe v. Wade, judge Michael R. Barrett lifted a preliminary injunction that had blocked state officials from enforcing the law against certain abortion providers, allowing the Human Rights and Heartbeat Protection Act to take full effect. The law of Ohio imposes felony criminal liability on anyone who performs or aids or abets an abortion after embryonic cardiac activity can be detected.

At the time of this posting, these restrictions were being litigated creating uncertainty for both doctors and patients.

Ohio’s Attorney general explained there are three exemptions to the state’s heartbeat act.

• • • Cases of ectopic pregnancy
    • Cases that would cause death of the mother
    • Cases that cause a serious risk of substantial, irreversible impairment to a major bodily function of the mother

Which brings us to the case of a ten-year-old girl.

An Ohio family learned their ten-year-old daughter was pregnant, allegedly by rape. The family took their daughter to Indiana, where abortion was legal. She saw Dr. Caitlin Bernard, an ob-gyn employed by Indiana University Health.

This turned into a media story.

Indiana’s Attorney General called for an investigation into Bernard.

The Republican Indiana attorney general claimed that Bernard had a history of failing to follow state reporting requirements for abortion providers.

Then Indiana health officials released a document indicating she had, in fact, reported providing a medication abortion for a 10-year-old rape victim in the days after the Dobbs decision allowed Ohio’s abortion ban to take effect.

Attorney General Todd Rokita ultimately filed a complaint with the state Medical Licensing Board, accusing her of failing to report the girl’s sexual assault to Indiana officials and of violating patient privacy laws with her public comments.

Early in the media uproar, it was alleged the rape was a fabrication. But on July 10, 2022, an Ohio man was charged in the rape.

Gerson Fuentes, 27, whose last known address was an apartment in Columbus, Ohio, was arrested after police say he admitted to raping the child on at least two occasions. He’s since been charged with rape and [was] being held on a $2 million bond.

An internal investigation at Indiana University Health concluded that Dr. Bernard had not violated any privacy laws.

On May 25^th, The Indiana Medical Board held a hearing which lasted fifteen hours.

What happened?

A majority of board members found that she had violated privacy laws by speaking about the case and voted to fine her $3,000 in addition to the reprimand. Dr. Bernard was exonerated for other allegations Dr. Bernard failed to appropriately report the rape to authorities. And the Board decided against more onerous penalties, such as suspension or license revocation. The Board concluded Dr. Bernard was fit to practice.

Dr. Bernard argued she did not disclose protected health information. The public never learned the patient’s name. And supposedly the public still does not know the name of the patient. But members of the Board concluded the details Dr. Bernard did provide to the media qualified as identifying information – the patient’s age, her rape, her home state, and her abortion. And the name of the rapist was eventually unmasked.

This case does little to clarify what characterizes unauthorized disclosure of protected health information. Given how ubiquitous our mobile phones are and how GPS is turned on by default, there are probably some in tech companies or their vendors who can reconstruct your identity by your location – such as whether you’ve been in a doctor’s office. Does a physician have to turn their office into a Faraday cage to comply with HIPAA?

The simplest workaround to Dr. Bernard’s Board complaint would have been to obtain the parents’ authorization to disclose some details about the case, limited to the bare minimum.

I have no idea what Dr. Bernard’s legal fees were to defend this case. And almost no Board hearing lasts fifteen hours.

I doubt this will be the last Board case on such topics. What do you think?

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.

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 2023 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.

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.

• • • •  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

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.

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 2023 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.