Legal Ramifications of Publishing Patient Photographs; A Review of Legal Cases

PURPOSE: The utilization of patient photography and videography is an essential part of a plastic and reconstructive surgeon’s practice. Before and after photos are often utilized by plastic surgeons for documentation, education, and even online promotion. The purpose of this study is to analyze the potential legal ramifications associated with publishing patient photos online. METHOD: The Lexis+ tm legal database was searched for cases that involved the 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 photos. All criminal cases were excluded. RESULTS: Of the 23 cases that met our inclusion criteria, all but two involved plastic surgeons. The remaining two cases listed an otolaryngologist and anesthesiologist as defendants. Nearly all cases included a single plaintiff (n=19). On average, 2.13 defendants were listed per case. This often included the accused surgeon and their employer. Additional defendants included media companies and other individuals or entities that assisted in disseminating the patient photos. Patient photos were published on a variety of platforms including print (n=9), professional websites (n=8), personal devices (n=3), television (n=2), and social media (n=1). In 69.57% (n=16) of cases the defendants obtained consent prior to photographing and/or videotaping the plaintiff. All but three of these cases ruled, at least partially, in favor of the plaintiff often due to out-opt portions of the consent forms and human error. In all 7 cases where the defendant did not obtain consent, the court either ruled in favor of the plaintiff or the parties reached an undisclosed settlement. CONCLUSION: While not a common occurrence overall, disseminating patient photos is significantly more prevalent in the field of plastic and reconstructive surgery than other surgical subspecialties. There are several commonalities among litigation cases including opt-out consent forms and clerical error. Given the associated financial liability involved with litigation cases, we suggest taking several steps to mitigate expose risk. This includes establishing two separate photo consent forms for internal and external use and establishing an auditing process whenever publishing patient photos external to the electronic medical records.