POSTED BY JULIE GALLAGHER & LESLIE SCHULTZ-KIN ON JULY 24, 2014
A gynecologist who secretly photographed and videotaped women's bodies in the examining room will cost one of the world's leading medical institutions $190 million. In a damaging blow to its reputation, Johns Hopkins Hospital has agreed to a settlement with more than 8,000 patients of Dr. Nikita Levy, who wore a pen-like camera around his neck to secretly record videos and photos of his patients, including 62 girls. Dr. Levy, a 25-year physician with Johns Hopkins Health System in Baltimore, Maryland, had seen approximately 12,600 patients during his tenure. He was fired in February 2013 after a co-worker spotted the camera and alerted authorities. Investigators discovered roughly 1,200 videos and 140 images stored on his home computer. Dr. Levy committed suicide days after his termination.
Although the women's faces were not visible in the images, and it could not be established with certainty which patients were recorded or how many, thousands of patients were traumatized, according to lawyers. A class action lawsuit was brought against Johns Hopkins on behalf of the more than 8,000 patients, who claimed the hospital should have known what Dr. Levy was up to. Each plaintiff was interviewed by a forensic psychologist and a post-traumatic stress specialist to determine how much trauma she suffered and how much money she will receive. The settlement is one of the largest on record in the United States involving a physician who took photographs of patients without their consent.
In Florida, although such conduct would likely be seen as outrageous by the regulators at the Department of Health and the members of the Board of Medicine, there is no specific statutory prohibition against photographing a patient without his or her consent. Section 458.331(1)(p), Fla. Stat., subjects a physician to discipline for performing "professional services" that have not been authorized by the patient. Photography is not likely a professional service provided by a physician. Likewise, sexual misconduct, although clearly prohibited, as defined in section 458.329, Fla. Stat., involves using the patient-physician relationship to induce the patient into sexual activity. Taking unauthorized photographs in and of itself might not be considered sexual misconduct. Despite those legal pitfalls, the conduct could be considered outside the standard of care and, therefore, be subject to disciplinary action. Physicians simply should not take any photograph or create any image of a patient without his or her consent, even if the physician has no plan to share the information. Surgical consent forms routinely disclose the potential for photographs or videos to be created during the surgery and spell out any use planned for them. This should be the routine practice for any examination or other service that creates an opportunity for images to be taken and preserved.
Unfortunately, the Johns Hopkins lawsuit is not the only case involving a physician photographing a patient inappropriately. In 2013, Dr. Patrick Yang, an anesthesiologist at Torrance Memorial Medical Center in Torrance, California, said he believed an unconscious patient "would get a kick" out of him cutting up sticky medication labels with scissors to put a mustache and gang tears on her face during surgery. Instead, the woman sued him and the hospital for breach of medical privacy over allegedly spreading a cellphone photograph on the internet. Dr. Yang's action during the surgery also prompted a state investigation and a rebuke from the hospital, which called his joke a "breach of professionalism." He was disciplined but kept his privileges at the hospital.
Also in 2013, a former Northwestern University student claimed that after she was admitted to Northwestern Memorial Hospital in Chicago, Illinois, for extreme intoxication, a physician at the hospital took photos of her and posted them to social media sites, Instagram and Facebook, with commentary about her condition. She is seeking compensation from Dr. Vinaya Puppala, the hospital and the Feinberg School of Medicine in excess of $1.5 million. In 2010, four employees were terminated at St. Mary's Medical Center in Long Beach, California, because they used cellphones to photograph a dying emergency room patient and then shared the photos on Facebook. In 2007, the Mayo Clinic in Rochester, Minnesota faced a lawsuit over the acts of Dr. Adam Hansen, chief resident of general surgery, who used his cell phone to take a picture of a patient's penis during surgery.
In this era of social media where the use of smartphones and tablets make sharing data so easy, these cases raise fresh concerns about a hospital's ability to protect patients' privacy. Accordingly, it is imperative that hospitals implement comprehensive policies regarding patient photography, video imaging and audio recording. Such policies should:
- Define allowable purposes and circumstances for obtaining film, digital photographs, video images or recording patients using a camera or other device.
- Set forth standards for the creation, use, disclosure and retention of the images.
- Ensure that patient/legal representative consent is given in writing or by verbal consent documented through an appropriate authorization form.
- Identify prohibited activities and behaviors relating to photography, video or audio recordings of patients, including personal use, entertainment purposes, posting on social media or in public areas, malicious use, or using such images in a way that is disruptive to patient care or the work environment. Staff failing to comply with such policies must be subject to disciplinary action.