Based on a true story.
What would you do if photos of your patient showed up in promotional material?
“I’m worried about this, and I have a case here to show you,” Dr. Jean Carruthers said at the annual meeting of the American Society for Dermatologic Surgery (ASDS). “I call it pictorial piracy.”
“In order for us to teach our colleagues, we need to be able to show pictures of faces and body parts … to show effects of treatment. We have developed a relationship of trust with patients … and they give you permission on the legal consent page in your office.”
“The problem is the patient is only consenting in their mind for you to use their pictures, not for your colleagues, on a Web site, or in promotional materials,” said Dr. Carruthers, clinical professor in the department of ophthalmology at the University of British Columbia and a specialist in facial cosmetic surgery. “You’d think there wouldn’t be a problem.”
But a colleague of Dr. Carruthers’ related this story to her: I agreed to write a chapter for a textbook. I asked one of my cosmetic dermatology patients for permission to include before-and-after treatment photographs for the chapter. The patient agreed and signed a general photograph consent form. I paid the patient for photo use, even though I received no payment for writing the chapter.
Even though the textbook publisher retained the legal copyright for the images, following publication, a “rogue representative” of a pharmaceutical company lifted the patient’s photos without consent and used them to create a promotional poster for his company’s product. Her colleague did not treat the patient with this product, said Dr. Carruthers, who intentionally did not reveal the name of the product or company.
“I have been in litigation for 3 years and will probably go to court,” the doctor told Dr. Carruthers. “The company settled with the patient without any indemnification for me.”
To avoid a similar fate, Dr. Carruthers suggested that physicians resend the consent form to a patient just prior to publication or presentation at a meeting (there can be lag time, and the patient may have changed his or her mind). She and others at the meeting also emphasized use of de-identified patient images in order to comply with HIPAA privacy regulations.
That can be tricky at facial aesthetic dermatology presentations, however.
The ASDS annual meeting program states, in part: “Patient photographs are an essential element of continuing medical education to demonstrate conditions, treatments, and outcomes in dermatologic surgery. Both presenters and session participants should be sensitive to a patient’s right to privacy even if their images have been released. To that end, it is the responsibility of all educational session participants to keep confidential all discernable patient information disseminated during the meeting.”
–Damian McNamara @MedReporter on Twitter