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Can a Healthcare Worker Post a Selfie with a Patient ?

March 6, 2020
David Parker, Esq.
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David Parker, White Plains and New City NY Estate Planning Attorney
David Parker, Esq.
David Parker is an attorney who specializes in Estate Planning and Elder Law and has been practicing law for 30 years. Be it Wills, Trusts, Powers of Attorney, Health Care Proxies, or Medicaid Planning, David provides comprehensive and caring counsel for seniors and their families. A large portion of David’s practice is asset protection strategies so that families do not lose their hard earned savings to nursing home care costs. He also handles probate administration for the settlement of estates.
A nurse’s aide at a senior care facility in southern Minnesota who posted a photograph of an elderly patient with Alzheimer’s disease on social media with a demeaning and vulgar message, did not violate state law meant to protect patient privacy, a state court has determined.

The Minnesota Court of Appeals recently held that a social media post that included a patient’s photograph with no other identifying information wasn’t a violation of a state law that prohibits medical providers from sharing medical records. The attorneys for the patient’s husband sued the assisted-living facility, Madonna Summit in Byron, MN alleging that the post with a selfie with a patient revealed private information about the patient’s health condition.

The Minneapolis Star Tribune’s recent article entitled “Patient's photo posted on social media not illegal, court rules” reported that the ruling surprised some elder care advocates, who think it lets facilities and workers carrying smartphones to post images of patients on social media without their permission and without any potential legal liability. Those who are particularly at risk are older patients with dementia and those with intellectual disabilities who may not know that their photos are being taken and shared on social media sites.

The posting of embarrassing and dehumanizing pictures is a new type of maltreatment in senior care facilities.

“This ruling could have serious implications for people living in residential long-term care,” said Joseph Gaugler, a professor who focuses on long-term care and aging at the University of Minnesota’s School of Public Health. “Given that the majority of nursing home residents are living with cognitive challenges, the opportunity for anyone to post what could be personal and/or inappropriate posts on social media without the consent of residents or their legally authorized representatives is troubling.”

The dispute stems from a photo and degrading caption the nurse’s aide posted on her personal social media page. In the post, the patient is sitting in a chair and the nurse’s aide is wearing scrubs. Under the photo, which was taken in a mirror, the nurse’s aide wrote the caption, “This little [expletive] just pulled the fire alarm and now I have to call 911!!! Woohoo.”

The worker told state investigators that she posted the photo because she “thought it was funny,” according to a state Health Department investigation of the incident.

The issue was whether a social media post — even one with a patient’s photograph — should be categorized as a “health record” under Minnesota law. The court said that because the photo didn’t have any information about the patient or where it was taken, it wasn’t an unauthorized release of a health record, and the senior care facility couldn’t be held liable under state law.

The post didn’t satisfy the standard of a health record because there was nothing in the post that contained her private medical information, the judges ruled. While a person could guess the patient’s approximate age, and the nurse’s aide was wearing scrubs, there was nothing to identify that the photo was taken in a senior care facility, the court found.

“The photograph and accompanying caption are certainly not posted in the best taste, but they do not fall under the definition of a ‘health record’ in the Minnesota Health Records Act,” wrote Court of Appeals Senior Judge Roger Klaphake in the seven-page decision, which upholds a lower court’s dismissal of the patient’s lawsuit.

Peter Sandberg, an attorney in Rochester for the patient’s husband, William Furlow, disagreed and said the appellate court failed to recognize the “potent threat” posed by social media.

Although the post didn’t explicitly identify the patient by name, anyone who saw the photograph and knew the nurse’s aide could’ve pinpointed the location based on where she worked. They also could’ve inferred that the woman suffered from a mental impairment based on the demeaning caption under the photo, the attorney argued.

The facility responded to the incident, by instructing the aide to delete the photo from social media. According to the state health investigation, she was later fired, and management retrained the entire staff on patient privacy and cellphone use.

Reference: StarTribune (Feb. 7, 2020) “Patient's photo posted on social media not illegal, court rules”


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