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.