Two nurses were fired for taking pictures of a patient x-ray (I call them sex rays) showing a sex toy lodged in the rectum.
The case was referred to the FBI for possible HIPAA violations. As far as I can tell, no laws were broken, unless of course there were rules specific to the hospital that were broken. Over at Clinical Cases and Images a nice summary explains when it is OK to post clinical cases without patient permission. As long as these 18 identifiers are missing, you are apparently safe from federal persecution.
Some comments from the Boing Boing site contend that nobody has a right to share their images without their consent. Not true. If none of the 18 legally determined identifying characteristics are present when a case report is presented, then where is the breach? Consent is not required if the rules are followed.
One commenter brought up a good point. Had the xray been posted anonymously on a content website, the picture would be seen by millions with no fall out. But post it on your Facebook page and you get fired. So, what is the standard? If HIPAA defines the patient privacy rules, why should you need any further consent from the patient, who is already protected by the law of the land.
So, should the nurses have been fired for taking x-rays of the sex toys?
Definitely not according to federal law.
ReplyDeleteI think you can make an argument that a nurse who is posting pictures of sex toys to their facebook could be fired, whether they are patient images or not. Your facebook tells people who you are.
Michael Phelps got his kellogs sponsorship pulled for being photographed with a bong. Did he go to jail? No. Was he arrested? No. Private organizations can do whatever they want.
If patients don't give written consent to have their medical images used in teaching contexts, then they should not be. Period. Snapping photos of patients for nonmedical purposes is wrong--what if male nurses or techs wanted to snap and post pictures of female patients who are compromised under anesthesia? You wouldn't this to happen to your wife.
ReplyDeleteShould she be fired? Yes. Even if the image cannot be personally connected to the individual, it's just unprofessional behavior and almost certainly occurred without informed consent.
If I'm at a hospital, and my x-ray has some feature that's incredibly rare or interesting, I wouldn't mind it being posted on the internet or passed around the lunch table -- with or without my knowledge.
ReplyDeleteWhat the nurses did was different. They're mocking this patient for an otherwise harmless lifestyle choice. There's no educational value, and it's not even that interesting. It's just: haha, look at that loser. And by identifying themselves (via facebook), they represent the entire hospital while they're making fun of this dude.
Bottom line: they didn't break any laws, but they acted very unprofessionally.
Not breaking any laws? Now I'm even more concerned about going under if people can legally take photos of patients' bodies and post them to the internet. No one wants to be an involuntary medical porn star, I mean assault victim.
ReplyDeleteI know it's juvenile but everyone loves a butt story. Noone can come to a hospital to have an item removed from the rectum and have privacy. Those stories are like a burning fire in the Santa Anna winds. It's stupid but it's a laugh. They aren't naked photo's it's an x-ray. It's wrong but...my bad.
ReplyDeleteConsidering that the legality of photo taking seems to be up for debate, it would behoove the objecting patient to note on their consent form that no image of them can leave the operating room without explicit consent. But who knows if that would be honored. As far as dignity is concerned, it's obvious the patient has no advocate while under anesthesia.
ReplyDelete1. The nurse had access to the patient to take the photo solely in connection with her professional position. Abusing that position to entertain/impress/show off is unethical.
ReplyDelete2. Every time a person presents a case with a description that includes a practice site (e.g., Midtown Hospital in Anytown, State, or Professor of Medicine at State University Med School in Whatevercity), that is a HIPAA violation. This has occurred at every profession meeting I have attended. The law states that no geographical subdivision smaller than a state can be specified. Fortunately, this is not enforced, at least not yet.
My coding instructor said during the pertinent part of that course, "You code it the same if it's a Bud Lite or a butt light."
ReplyDeleteHowever, the patient should not have been made a public butt of the nurses' joke. Maybe it's OK under HIPAA, but posting it to a site that can be tied back to a specific individual was unethical, especially with all of the flak Facebook is getting over their new T&Cs.
These nurses may have committed professional suicide - would you want them on your team?
Lest we not forget, medical data with PHII removed can be combined with other data to identify an individual (e.g. the case of former Massachusetts governor William Weld.
I'm going to butt out now...
Was what she did illegal? No.
ReplyDeleteShould she be fired? Yes.
While she did not violate legal standards, she did violate ethical standards. Not enough to have her license pulled, but enough for others to think twice about having her as an employee. I would also not be surprised if there was something written in her contract that says something about ethical standards and dismissal; I would assume that hospitals like to keep their reputations unsullied by such things.
2. All geographical subdivisions smaller than a State, including street address, city, county, precinct, zip code, and their equivalent geocodes, except for the initial three digits of a zip code, if according to the current publicly available data from the Bureau of the Census: (1) The geographic unit formed by combining all zip codes with the same three initial digits contains more than 20,000 people; and (2) The initial three digits of a zip code for all such geographic units containing 20,000 or fewer people is changed to 000.
ReplyDeleteThe image CAN be traced however. If the nurses posted the pic online as anonomous in a picture gallery and then linked to it isolating herself from the person taking the picture and the upload then she would be free and clear. By her admission to taking the picture and uploading it to facebook would define her as guilty under HIPAA. Her location has been identified to an area smaller then the state by her profile on Facebook and by the coworkers and friends that link to her.