A Texas physician who performs aesthetic treatments recently agreed to disciplinary action by the Board of Medicine. In 2015, a patient underwent a series of non-invasive laser treatments with Dr. Tinuade Olugesugun-Gbadeham. Around May 27, 2015, the patient made a video testimonial on the results of these procedures. The patient gave consent to have photos and videos taken – though authorization was limited to “anonymous use for the purposes of medical audit, education, and promotion.”
The patient’s video was posted to the doctor’s Facebook page with full face shots. No attempt to mask the patient’s identity.
The video suggested the patient was happy with the procedures.
But, soon after, all was different.
Two months later, the patient replied to the Facebook post saying “OK, I’ll make my Comment! Beware! Send me a personal message, and I’ll share my experience with this crap!”
Not a happy camper.
The patient disputed some of the charges for the procedure with her credit card company – and this may have fueled the deteriorating doctor-patient relationship.
Dr. Tinuade Olugesugun-Gbadeham and the patient exchanged a number of emails.
Around August 19, 2015, the doctor allegedly responded to the patient via email, “‘The contrast between your printed words and your video-taped testimonial are completely contradictory. …This video result, when posted as a response to your next slanderous comment about the Dr. O Lift on social media, will be just as damaging to YOUR professional reputation. Let this communication serve as our formal legal notice to you regarding these matters.” Just so we’re clear here. The doctor is writing this to the patient.
The patient then explicitly directed the doctor to remove the online video testimonial.
The saga continued.
Around August 29, 2015 and September 14, 2015, the patient filed police reports alleging that the doctor was harassing her in retaliation for a billing dispute by posting a videotape taken of her in her undergarments on Facebook and YouTube and by sending a copy of the videotape to her credit card company (challenging the chargeback).
On September 14, 2015, the doctor emailed the patient indicating that she would continue to post and distribute the patient’s videotape and that the patient would regret reporting anything against the doctor. The doctor allegedly wrote ], “I will damage your professional reputation, and you will be humiliated!” In addition, “[P]eople will see your glowing testimonial and your body, enjoy your Hi-Def video! Enjoy as others will do the same.” Just so we’re clear here again. The doctor is writing this to the patient.
The patient filed a complaint with the Texas Medical Board arguing she suffered burns during the first procedure. She also claimed she was overbilled and was disputing some of the charges with her credit card company.
The Texas Medical Board concuded the posting of the video was a HIPAA violation and was unprofessional. The Board also ruled that an email containing the link to a posting of the video sent to the patient in an “unsecured format” was ALSO a confidentiality breach and was unprofessional.
The Texas Medical Board continued with its laundry list. They also concluded Dr. Olusegun-Gbadehan sent the video to the merchant processing company in response to the billing dispute as evidence that the patient initially appeared to be happy with the treatment, but this too was a violation of the patient’s privacy. Piling on indeed.
Although patients cannot sue directly based on HIPAA, the case still lingers on.
The patient sued Dr. Tinuade Olugesugun-Gbadeham for mental anguish, physical pain, and suffering. This is being packaged as a health care liability claim claiming the publication of the video and subsequent correspondence via email were intended to damage the patient’s personal and professional reputation.
A handful of comments…
- Get the appropriate consent for photographs/videos. We have generic consents for photographs/videos. Just ask.
- Honor those consents. If the consent asks that pictures/videos be de-identified, make sure the pictures cannot be tied back to the individual patient. This often is more than just putting a stripe over the patient’s eyes. For example, if the if the photo includes an unusual shoulder tattoo, that is a potentially identifying mark.
- HIPAA does actually allow you to send limited protected health information without the patient’s authorization to address a financial dispute. HIPAA is a federal law. And a given state may have more stringent requirements than the federal baseline. But, in addressing a financial dispute, little needs to be sent. For example, that the patient signed a credit card receipt authorizing for a specific procedure to be done on a specific date; and indeed that procedure was done. There’s no need to send a videotape of the patient in undergarments waxing eloquently (no pun intended) about how great the procedure was. The credit card company is not adjudicating whether the patient has buyer’s remorse. Merely whether the payment was authorized.
- If a patient asks you to remove an online photo/video and it is within your reasonable control to make it happen, just do it. HIPAA allows patients to withdraw their authorization to disclose protected health information. Obviously if the patient’s photo is published in a national magazine, you cannot reasonably recall each copy. But, if it is on your Facebook page, you can honor the request.
Like many things, disputes over money can escalate into World War Three. Such disputes can often be pre-empted with targeted diplomacy.
What do you think?