Houston partner Bob Wolin was quoted in the May 2009 edition of Healthcare Risk Management in the article, "No 'Safe' Way to Gossip About Patient Info."
According to Wolin, risk managers must mitigate the natural human temptation to snoop and gossip, because the potential legal ramifications can be huge. Referring to a Wisconsin case where two nurse photographed an X-ray image of a patient and one nurse subsequently posted the image to her Facebook page, Wolin speculates that the nurses may have thought it was OK—or at least not all that bad—to take a photo of an X-ray in such a way that the patient's identification was not obvious. And the nurses may have thought that posting it online might be OK for the same reason, Wolin said.
That kind of thinking must be countered, Wolin said. For starters, the patient clearly had privacy rights in the X-ray, and the X-ray image was owned by the hospital. The reference to the photos on the nurse's Facebook page likely violated the nurse's agreement with Facebook that she would not post any materials that violate or infringe upon the rights of any third party, he said.
Wolin points out, however, that the X-ray may not have violated the patient's privacy, according to Wisconsin law. Wisconsin has comprehensive statutory provisions governing the disclosure of patient health care records, and Wis. Stat. Ann. §§ 146.82(1) begins with the premise that all patient health care records are confidential and may not be released. "However, the statute allows information from a medical record to be released, without the patient's consent, if the information released together with the circumstances surrounding the release would not permit the identification of the patient," he said. "This is an exception that does not exist in many state privacy laws."
That does not mean such an Internet posting should be acceptable, however, even in Wisconsin. Wolin explained that even if the disclosure did not violate the Wisconsin patient privacy law, the Wisconsin Board of Nursing should be able to take disciplinary action against the nurses for unprofessional conduct. "The nurse may attempt to argue that the release of the photo was permitted since the patient could not be identified from the photograph," Wolin said. "However, the board should be able to show that the copying of the X-ray was not authorized by law as the act was likely a violation of the patient's right of privacy."