Oct 10, 2017

Plastic Surgeon Sued for Posting Before and After Pics Online

Editorial Voice
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By Eileen Spatz

Many people start their days with a quick review of their social media apps.  You fire up your Instagram app and begin scrolling through the new posts when there, in glorious Technicolor, are pictures of your breasts posted on your plastic surgeon’s account.  One can only imagine the horror of seeing your before and after breast augmentation photos plastered all over the various social media platforms used these days by cosmetic surgeons for the purposes of online marketing, and feeling powerless to do anything about it.

Just last month, a woman from Fresno, California was awarded damages as the result of a lawsuit she brought against her cosmetic surgeon.  The patient’s before and after plastic surgery pics were spotted during an Internet search by a guy she met on an online dating site (okay, could it be any worse?!)—with her name attached to them.  This is a wake-up call to doctors who may, though possibly innocently, breach the rights, and trust, of patients by using their photos in an illegal or unauthorized manner.

All plastic surgery patients are handed papers to sign prior to any given procedure.  Included in the paperwork may be a document that asks for the patient’s permission for their images to be used for advertising purposes.  Pre and post-op photos are an industry standard, a legitimate tool for the doctor to study the individual patient’s features when determining the best cosmetic procedures.  Whether these clinical photos can be used for marketing is up to the patient’s consent—and never to be identifiable by patient name.  

The Reality of SEO Marketing
Many practices today employ the services of an SEO marketing professional who is given the task of optimizing the doctor’s website for Google results.  This is one of the potential danger zones when it comes to using patient photos for marketing purposes.  Even when a patient authorizes use of the images, no longer is marketing limited to a notebook in the office of headless before and after patient photos touting the successful results of this or that cosmetic procedure.  Even using the images on a tri-fold brochure was limited to reaching just a limited number of people.

Today, Internet marketing means whatever images are used online to promote cosmetic surgery can be spread from here to Kingdom Come in an instant, living forever and ever in the digital afterworld.  The images can be shared, re-posted, re-tweeted, and bootlegged to third party users worldwide in no time flat.  If a breach has occurred and the image has been scattered across the web, it is nearly impossible to rein it in.

For these reasons, as articulated in an article by AdviceMedia, an SEO company must be savvy of the many avenues of web visibility and understand how, by simply uploading a photo of a patient whose name may be attached to the file and not even revealed online to the public, a web crawler, such as GoogleBot, can sniff that name out and make it a searchable image, exposing this sensitive information to the searcher.  

What About HIPAA and Informed Consent?
Under the Health Insurance Portability and Accountability Act (HIPAA) patients have specific rights that all medical practitioners must honor.  Under HIPAA, physicians may only release a patient’s medical information if it is authorized in writing.  In addition, a patient owns the rights to their name, likeness and image, further restricting access to personal photos and information for unauthorized use.

There has been an uptick in publicly displayed pre and post-op photos on social media platforms, a popular marketing channel for cosmetic surgeons.  While some of the patient images may have been authorized, others may have appeared online without the written consent of the patient.  Furthermore, many before and after photos are taken on a cell phone camera, exposing them to hacking risks if that phone is targeted.  In addition, while a patient’s face may be blurred out when the image is posted to social media or online websites, the phone retains the original unedited image. This could constitute a HIPAA violation, as security controls must be in place to protect patient information and images.

How to Protect Your Pre and Post-op Photos
Two things are certain:  1. Before and after photos are a necessary step in plastic surgery procedures and 2. The Internet is today’s marketing tool, period.  With these two truths acknowledged, how does a patient protect their private images from becoming an Internet sensation when enlisting the services of a cosmetic surgeon?  The conversation needs to begin at the practice level, directly with your plastic surgeon.  

Insist that only a camera, versus a cell phone, be used for the photos.  Also, when given paperwork to sign that asks for written consent to use the images for business purposes, i.e., advertising, read the document carefully and do not authorize your pics to be used online in any way.  Make sure the document specifically states that names and faces will not ever be used in conjunction with the photos, regardless of whether they are in that notebook on the waiting room coffee table or any other marketing venue.

If these safety measures have been taken and your surgeon uses them publicly in an unauthorized manner, you have every right to do as the woman in Fresno did and initiate a lawsuit against them.

Editorial Voice
Val Lambros, MD FACS for the Editorial Voice - ZALEA Val Lambros, MD FACS

Any images uploaded onto the internet,  from selfies to surgery, will be potentially visible to anyone in the world with an internet connection. This idea should instill some caution as well as a sense of power for anyone posting images of whatever kind. The authors correctly identify the unique problems of patient privacy with these images and give reasonable recommendations to the patients whose photos may have been used. This is good advice and should be heeded. With regard to my patient consents, I specifically mention that the images may be used on my own website as well.
In addition, I would stress the point that physicians should avoid labeling any internet bound photos with patients’ names when communicating with the web creation service. The names may be inadvertently retained with the image when they are posted and would create a major identification problem. It may not be the doctor’s immediate fault, but that will not matter as the he/she will be liable ultimately.  
The second is that images are easily stolen. I have known doctors who posted images on their professional websites only to see them pop up on other doctors’ sites. In my publications, I place a translucent watermark with my name over the image; it is visible, but not obnoxious and prevents someone in Russia or next door from appropriating images and claiming them as their own.  This can be performed easily using Photoshop or other similar editing programs.  

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