Documenting patients’ care with images can get dermatologists in or out of legal trouble. Especially in an electronic medical record (EMR) era, dermatologists should know legal perspectives on photo documentation.
Medical malpractice is one example of how photo documentation can work for or against a dermatologist, according to Lawrence J. Buckfire, managing partner and lead trial attorney for the law firm of Buckfire and Buckfire in Southfield, Mich.
“My office gets calls from prospective clients inquiring whether they have a medical malpractice claim against a dermatologist for failing to diagnose skin cancer,” Buckfire says. “Quite often, the patient’s description of the skin lesion does not match the clinical notes of the dermatologist. When a dermatologist takes photographs of the patient at each visit, it provides irrefutable documentation of the skin condition on exact dates and times. These photographs are the best evidence against a medical negligence claim alleging the failure to diagnose and treat a suspect skin lesion, especially if the photo demonstrates that a biopsy or other workup was not required.”
Permission is paramount
There are commonalities and differences between photo documentation in the EMR era and pre-EMRs, according to David J. Goldberg, M.D., J.D., director of Skin Laser and Surgery Specialists of New York and New Jersey and adjunct professor of law at New York’s Fordham Law School.
An important legality that applies whether dermatologists take pictures for an EMR or paper chart is that they need the patient’s informed consent.
“The ideal informed consent stipulates that the patient knows you are using this for the purpose of documenting either the lesion being biopsied, the surgery being undertaken or the cosmetic purposes of it. But, also, the consent form ought to have in it that [the images] can be used for promotional materials and may be shared with other physicians who may be involved in the care of that patient,” Dr. Goldberg says.
Taking that a step further, dermatologists who do tattoo removal often take images of the tattoo before, during and after removal. And while a patient informed consent could cover the dermatologist who wants to use the image for educational or publicity purposes, it doesn’t cover a possible copyright infringement on the tattoo artist’s work, according to William P. Glenn Jr., attorney, with the Galveston, Texas-based law firm Royston Rayzor Vickery and Williams.
Glenn, who specializes in patents, trademark and copyright law, says dermatologists who want to use images of a tattoos for publicity purposes should consider getting consent for use from the tattoo artist.
“The skin is a canvas [in this case],” Glenn says.
There are other considerations, according to Glenn: When getting written consents from patients who are minors or those who don’t have the capacity to make the decision to sign, make sure to have the appropriate parents or caregivers sign the documents.
“The dermatologist should make sure that employment agreements for his/her staff contain language that photography performed on the job is owned by the practice. And if outside photographers are used, then make sure that contract with [the] outside photographer states that photographs taken for the dermatologist are ‘work for hire,’” Glenn says.
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