Legal Ramifications of Publishing Patient Photographs: A Review of Legal Cases.

Abstract

A retrospective analysis of the Lexis+ legal database was conducted to obtain cases that involved the improper dissemination of patient photographs or videos by surgeons. Inclusion criteria included civil cases in which the defendant was a surgeon being sued for the improper use of patient photographs. Criminal cases were excluded from analysis. A total of 23 cases met the inclusion criteria for our study. On average, 2.13 defendants were listed per case, often including the accused surgeon and their employer. Prior photographic consent was obtained in 69.57% (n = 16) of cases. In the remaining seven cases, the defendant did not obtain consent. In all seven of these cases, either the court ruled in favor of the plaintiff or both parties reached a settlement outside court. To mitigate risk, surgeons should maintain two separate photographic consent forms for internal and external use. Additionally, a formal audit process should be established to ensure proper consent has been established before publishing patient photographs external to the electronic medical records.