Summary judgment was granted on June 10th to plaintiff Catherine Manzione in a multi-million dollar lawsuit.
That means the plaintiff won without even having to present her case to the jury. The judge granted the motion noting there are no disagreements on the facts of the case. In that circumstance, the judge merely needs to apply the law to the agreed upon facts.
Here’s what the dispute is about:
In January, 2011, Ms. Manzione had an elective cosmetic rhinoplasty performed by Dr. Mashkevich. Prior to the surgery, the patient signed a “Photographic Release and Consent” form. In that form, the patient explicitly withheld her consent to use any before or after photos in an advertisement or web publishing. Specifically, the patient’s signature appeared directly below the statement:
“I do not want my photos to be used. I understand that the photographs will be placed in my confidential records only.”
At this same time, plaintiff also signed an “Authorization and Informed Consent” form which stated:
“I give permission to Dr. Mashkevich or a staff member to take still or motion clinical photographs with the understanding that such remain the property of the doctor. If, in the judgment of the Doctor, medical research, education, or science will benefit from their use, such photographs and related information may be published and republished in professional journals or medical books, or used for such publication or use, including as presentation material.”
In 2013, the patient discovered her before-and-after photos were posted on the doctor’s website. In June, 2013, the patient’s lawyer demanded the photos be removed. And the doctor quickly complied.
A lawsuit quickly followed alleging: (1) violation of the Civil Rights Law§§ 50 and 51; (2) unjust enrichment; (3) breach of fiduciary duty; (4) public disclosure of private facts about plaintiff; and (5) negligence per se for violation of: (a) Civil Rights Law§ 50; (b) HIPAA Privacy Rule; (c) CPLR § 4504(a); (d) Education Law§ 6509(9); and (e) 8 NYCRR 60.l(d).
That’s a mouthful.
New York Civil Rights Law § 50 provides that the use of the “name, portrait or picture of any living person” for “advertising [or trade] purposes” absent written consent is a misdemeanor. Civil Rights § 51 authorizes a civil action for injunctive relief and damages, including exemplary damages if a defendant acts knowingly in violation of that protection.
This means if you use a person’s name or picture for advertisement without written consent, you can be sued for damages. The issue in this case hinged on consent. Dr. Mashkevich argued even though there were two documents, one of the documents authorized consent to use the photos.
The court concluded that there were two consents. The first consent broke down the different ways photos might be used with the patient signing in the adjacent line – authorizing or denying consent for that use. This is a defendable way to obtain consent for photos in a surgeon’s practice.
A granular consent to use photos might include:
The usage of these photographs, videos and/or digital images will be limited to:
___Medical purposes related to case
___ Scientific purposes, including seminars and medical articles
___ Digital or printed materials for patients to view in the office(s)
___ Digital or printed materials to be included in newsletter to be sent to current or prospective patients
___ Digital images to be included in our website
___ Digital images to be uploaded to the broader Internet to be viewed by the public
The problem in this particular case is that the patient explicitly did not consent to the use of her pictures on the surgeon’s website.
As noted earlier, the broader second consent stated: “If, in the judgment of the Doctor, medical research, education, or science will benefit from their use, such photographs and related information may be published and republished in professional journals or medical books, or used for such publication or use, including as presentation material.”
The problem here is that even if the website is arguably an educational forum, authorization to use photos is limited to publication in professional journals or medical book. The surgeon’s website is neither.
So, there you have it.
If you intend to use patient photos for any purpose, you must have the patient’s explicit (written) consent for that purpose. Further, HIPAA and HITECH allow the patient to withdraw such permission down the road. So, if a patient gives consent to use photos on your website and then rescinds that permission a year later, you are obliged to honor that request. Obviously, if the picture is disseminated in a medium that is permanent – such as book or medical journal, you cannot recall the material. But, you can make sure it is not re-published.
Adding additional language into a “Consent to Use Photos” may be helpful:
If I ask Dr. X to terminate use of these photos, videos and/or digital images, I will do so in writing and communicated to Dr. X, and recognize that it will likely take a reasonable time period to accomplish. For example, to remove such pictures from a web site, Dr. X will need to coordinate with a third party webmaster.
Further, termination of prospective use of photos, videos and/or digital images may have no effect on prior distribution- such as the case with medical journals. A published journal, for example, cannot be “recalled.”
By the way, the plaintiff is seeking $23 million.