29 Consent for photography
legal issues
Summary and Key Features
• The use of cosmetic photography may lead to legal issues
• Informed consent is required prior to taking cosmetic photographs
• Informed consent must delineate the purposes for which cosmetic photographs will be used
• The improper use of cosmetic photographs may be considered an invasion of patient privacy
• In the USA, invasion of patient privacy is regulated by the Privacy Rule in the Health Insurance Portability and Accountability Act (HIPAA 1996)
• The patient’s medical record must document that cosmetic photographs have been taken
• Improper use of cosmetic photographs may be deemed an act of negligence
• Improper use of cosmetic photographs may lead to a lawsuit against the physician
Regulation
Liability reduction
Create a policy that addresses the subject of videotaping filler injections. Use it consistently to avoid charges of ‘hiding’ images in cases that may have involved malpractice.
Document every video recording in the medical record. A videotape can be used to prove innocence as well as guilt and both parties are entitled to complete, unedited copies.
Standard of care in negligence actions
The witness’s personal practice, and / or
The practice of others that he has observed in his experience, and / or
Medical literature in indexed peer-reviewed publications, and / or
Statutes and / or legislative rules, and / or
Courses where the subject is discussed and taught in a well-defined manner.
Accreditation Clinic. Joint Commission Perspectives. 2000;20(6):6. Online. Available http://www.ingentaconnect.com/content/jcaho/jcp/2000/
1995 Are videotapes part of the medical record? Medical Records Briefing. 1995;6(4):8.
1998 Special report: videotaping. Healthcare Risk Management. 1998;20(10):127–129.
Office of the Assistant Secretary for Planning and Evaluation, DHHS. Final rule. 45 CFR Parts 160 and 164. Federal Register 65(250):82462–829
Fletcher DM. Practice brief. Issue: telemedical records. Journal of American Health Information Management Association. 68(4), 1997. suppl 3 p. following 44
Furrow BF, Liability of health care professionals. Furrow BR, Greaney TL, Johnson SH, et al. cases, materials and problems, 6th edn. St Paul, Eagan, MN, Health law, 2008:327–354.
Hyams AL, Shapiro DW, Brennan TA. Medical practice guidelines in malpractice litigation: an early retrospective. Journal of Health Political Policy and Law. 1996;21(2):289–313.
Pickering AM. Risk management tips for video technology. Journal of Healthcare Risk Management. 1995;15(1):16–19.
Roach WH, Jr., Hoban RG, Broccolo BM, et al. Medical records and the law. Gaithersburg, MD: Aspen Publishers, Inc.; 1994.