Considerations relating to EMR, HIPAA, informed consent, and record access can help you form a plan to use clinical photography to document patient progress as well as to protect yourself from legal claims.
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.”
Dr. GoldbergThere 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.
William P. Glenn, Jr.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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Next: EMR impact on photo safety
Dermatologists who use EMRs have to be concerned with HIPAA and the many sources that have access to the EMR, and, possibly, patients’ photos, according to Dr. Goldberg.
“If you think about how an EMR works in a doctor’s office and, for that matter, in a hospital, it is potentially accessible to your IT people, your web master, everybody in the office (from the secretary to providers), to insurance companies,” Dr. Goldberg says. “An ideal EMR system is going to have levels of accessibility. That is, there is no reason a secretary ought to have access to the photographs of someone who has anal warts.”
In addition, if there is an outside individual or company with access to a dermatology practice’s EMR, dermatologists have to make sure that those others also are HIPAA compliant. Examples are the web master or even EMR system developers or outside billing companies.
“They all have access to your EMR, which means they all potentially have access to photographs. None of them had access to your medical records when they were in print form,” Dr. Goldberg says. “You don’t want those photographs getting into hands they cannot be. So, the moral of the story is there are levels of accessibility to EMR in this era and most of the people who have access to one’s EMR should not have access to your pictures.”
David FuentesAccording to David Fuentes, General Counsel, Integrated Dermatology Group, a national dermatology practice headquartered in Boca Raton, Fla., practice photographs are part of the medical record and the dermatologist must maintain those images for as long as the medical records are kept.
“Given the sensitivities involved with visual images provided by photographs versus the medical written description of a disease, these images are more ‘interesting’ to bad actors and dermatologists should be aware of this heightened risk. The risk of use and misuse of medical photographs is increasing for dermatologists as it has become easier and more efficient to capture digital images when using EMR systems, especially with iPad-based EMR,” Fuentes says.
Fuentes says dermatologists should, if at all possible, take photos that do not identify patients. “A picture of a basal cell carcinoma is unlikely to get misappropriated by someone with access to the medical record. However, a picture that clearly shows that cancer to be on the face of public figure has a heightened interest factor and raises the overall risk profile of that medical photograph,” Fuentes says. “Dermatologists and their staff should exclude identifying facial features from photographs, so that the identity of a patient will be not be evident from examining the picture by itself. For example, this can be done by zooming in on the anatomic location or taking pictures at angles those do not identify the patient.”
Finally, special care should be taken when using EMR systems that allow pictures to be taken by outside digital cameras and then inserted into the medical record.
“Policies and procedures should be implemented to ensure that after inclusion in the medical record, photographs are deleted from any such camera devices with which pictures are taken or stored, including digital cameras, memory cards, iPads and backup media storage locations,” Fuentes says.
Of related interest: Beware EHR autopilot errors
Next: Five tips for photo documentation
Tsippora Shainhouse, M.D., a dermatologist in Beverly Hills and clinical instructor at the University of Southern California, shares these tips for effective photo documentation whether using an EMR or paper chart.
Just like checking into the gym, it is important to identify the patient sitting in front of you and be sure that you are in the correct chart. Take a face photo for the profile section of your patient chart. It takes seconds to do, and saves [the] time and strife [of] figuring out if you are in the correct room and documenting on the correct patient. It may also jog your memory of the patient, if you tend to type all of your notes at the end of the day.
When taking a biopsy, a photo of the lesion and its location can be worth 1000 words, if shot properly. First, label the lesion with an arrow or other obvious identifying sign. Then, take a photo of the location with respect to other identifiable anatomic parts, so that you will have no question about the exact site from where the biopsy was taken. If the lesion of concern is on the forearm, take a photo of the entire forearm, including the wrist and elbow. If you are concerned about what the actual lesion looks like, then take a second, close-up photo for detail. Label the photos with the same site that you document in your written note.
If you have decided to monitor a specific lesion over time for changes or possible future biopsy, it is important to photo-document the lesion both for location and for detail. Place an identifying mark, like an arrow, on the skin next to the lesion. If available, line up a ruler next to the lesion to measure it. Take a photo from a distance, incorporating the nearby identifying anatomical structures to document location (if the lesion is on the bottom of the foot, take a photo of the entire plantar foot). Then, take a close-range photo documenting the details of the lesion. Label the photo with the same site you use in your written note and consider including the measurement for quick reference.
Documenting treatment progress
For patients with acne, rashes or even nail fungus, consider taking a pre-treatment photo. This acts as your baseline photo documentation of the skin condition, and will help both you and the patient observe the progress with their treatment. You can take serial photographs at subsequent visits or at end of treatment (especially in acne patients being treated with isotretinoin). Be sure to take the serial photographs from the same angle and in similar light, so that they can be true comparisons. Label photos with dates and treatment stage.
Documenting cosmetic results
It is helpful to document your patient’s baseline skin before doing any cosmetic procedure, so that both you and your patient can see the effect of the treatment. Post-procedure photos may be taken immediately, two weeks later or over time, depending on your protocol and treatment plan. It is important to take photos in the same position, from the same camera angle and in the same light for each series of photos. Some directions to consider are front, side (right and left) and 45 degree (right and left), and from the crown with the patient lying supine. This helps demonstrate the skin pigment, resting and active rhytids and facial contour before and after the procedure. It shows the patient the effect of the treatment and helps guide further procedures.
Before you go: Clinical photos can cut surgery errors, biopsy rates