Patient's photo posted on social media not illegal, court rules

A nurse's aide at a senior care facility in southern Minnesota who posted a photograph of an elderly patient with Alzheimer's disease on social media with a demeaning and vulgar message did not violate state law meant to protect patient privacy, a state court has determined.

The Minnesota Court of Appeals panel ruled last week that a social media post that included a patient's photograph — but no other identifying information — was not a violation of a state law that prohibits medical providers from sharing medical records. Attorneys for the patient's husband sued the assisted-living facility, Madonna Summit of Byron, Minn., alleging that the social media post revealed private information about the patient's health condition.

The ruling has alarmed some elder care advocates, who fear it essentially gives the green light for facilities and workers carrying smartphones to post images of patients on social media without their permission and without fear of legal liability. Those particularly at risk are older people with dementia and individuals with intellectual disabilities who may not be aware that their photos are being taken surreptitiously and shared on Facebook, Snapchat or other social media sites.

The posting of embarrassing and dehumanizing photos has emerged as a new form of maltreatment in senior care facilities, and one that can leave a lasting digital trail.

In 2016, for instance, multiple staff members at an assisted-living facility in Hugo took photos and videos of two residents with dementia in elaborately staged and mocking poses, then shared them via text and on social media.

Residents in wheelchairs were filmed holding empty alcohol bottles and with white powder spread under their noses, as if they were using cocaine, state health investigators found.

"This ruling could have serious implications for people living in residential long-term care," said Joseph Gaugler, a professor who focuses on long-term care and aging at the University of Minnesota's School of Public Health. "Given that the majority of nursing home residents are living with cognitive challenges, the opportunity for anyone to post what could be personal and/or inappropriate posts on social media without the consent of residents or their legally authorized representatives is troubling."

The dispute arises from a photo and degrading message that the nurse's aide posted in June 2017 on her personal social media page. In the posting, the patient is sitting in a chair and the nurse's aide is wearing scrubs. Under the photo, which was taken in a mirror, the nurse's aide wrote a mocking caption, "This little [expletive] just pulled the fire alarm and now I have to call 911!!! Woohoo."

The aide told state investigators that she posted the photo because she "thought it was funny," according to a state Health Department investigation of the incident.

At issue in the case is whether a social media post — even one with a patient's photograph — should be classified as a "health record" under state law. The court determined that, because the photo contained no identifying information about the patient or where it was taken, the posting was not an unauthorized release of a health record, and the senior care facility cannot be held liable under state law.

In its review, the three-judge panel appeared to adopt a narrow interpretation of what constitutes a health record. The Minnesota Health Records Act defines a health record in vague terms as "any information, whether oral or recorded in any form, that relates to the past, present or future physical or mental health or condition of a patient." Examples of protected health records would include lab reports, X-rays, prescriptions and other technical information used to assess a person's health condition, the court said.

The social media post did not meet the standard of a health record because there was nothing in the posting that contained her private medical information, the judges ruled. Although one could infer the patient's approximate age, and the nurse's aide was wearing scrubs, there was nothing to identify that the photo was taken in a senior care facility, the court determined.

"The photograph and accompanying caption are certainly not posted in the best taste, but they do not fall under the definition of a 'health record' in the Minnesota Health Records Act," wrote Court of Appeals Senior Judge Roger Klaphake in the seven-page decision, which upholds a lower court's dismissal of the patient's lawsuit.

Peter Sandberg, an attorney in Rochester for the patient's husband, William Furlow, disagreed and said the appellate court failed to recognize the "potent threat" posed by social media.

Even though the social media post did not explicitly identify the patient by name, anyone who saw the photograph and was a friend of the nurse's aide could have identified where it was taken based on where the person worked. They also could have inferred that the woman suffered from a mental impairment based on the demeaning caption under the photo, he argued.

Sandberg said the derogatory use of the phrase "little [expletive]" below the woman's photo would have reinforced a perception that the patient had the "playground mentality" of a toddler.

"Social media is the most potent tool in the public's toolbox for invading the personal privacy of any patient or any person," said Sandberg. "It should not be treated lightly."

The assisted-living facility responded to the incident by instructing the aide to delete the photo from social media. According to the state health investigation, she was later terminated from her position and management retrained all facility staff on patient privacy and cellphone use.