November 2018 Volume LIII Number 6

 
 
 
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Litch's Law Log: Best Practices for In-Office Photos and Videos That Parents Wish to Take

September 2015 Volume L Number 5

In a nutshell: just say no.

In a time when seemingly every man, woman, and child on the planet owns a smartphone, and when videos and photos are posted by the billions on social media sites such as Facebook, Snapchat or Instagram, it is not surprising that some parents may wish to film their child's visit to the pediatric dentist. When you tell them no, they might also say "but I'm only taking a picture of my own child what's the harm?" But from the pediatric dentist's perspective, it is a bit disconcerting to have a parent pull out a phone during the middle of a difficult procedure and starting filming.

I'm not sure I have the best explanation to provide parents from a good communications perspective, but I will give you the legal reasons why this is not a good idea.

First, it could be a potential HIPAA violation. This would not stem from a parent's taking photos or videos of their own child, but there is a possibility of inadvertently capturing the image or voice of another patient and thereby compromising that patient's privacy. In addition, if the parent asks your staff member to take the photo, or if a parent sent the photo or video to the dental practice and your staff member then used or disclosed the image in a manner not permitted by HIPAA, that could result in a HIPAA violation. There are also your office staff (e.g., dentist, hygienist, assistant, office manager and receptionist) whose privacy rights should be respected.

Second, it is prudent risk management to have a no camera policy. Video clips or photos can be taken out of context and be detrimental in case there is any complaint regarding the dental services provided. We have seen repeatedly how furious social media reactions have been driven by visuals taken out of context or without greater explanation. 

Therefore, the simplest and cleanest approach is to have a "no video or photo" policy for your office. A posted sign in the office as well as on the practice website would be prudent, such as stating:

We respect the privacy rights of all our patients and our staff. Therefore, we do not allow photography (video or otherwise) on the premises. If a parent asks if there is a legal reason for this policy, you can reference the following provision from HIPAA regulations, indicating that your office as a "covered entity" has a responsibility under federal law to protect the privacy of all patients in your practice:

"(c)(1)A covered entity must have in place appropriate administrative, technical and physical safeguards to protect the privacy of protected health information.

(2)(i) Implementation specification: Safeguards. A covered entity must reasonably safeguard protected health information from any intentional or unintentional use or disclosure that is in violation of the standards, implementation specifications, or other requirements of this subpart.

(ii) A covered entity must reasonably safeguard protected health information to limit incidental uses or disclosures made pursuant to an otherwise permitted or required use or disclosure."

Also note that if your practice wishes to use a patient's image, such as for a "no cavities" bulletin board or website page, an authorization and consent from the parent is required. There are also legal and ethical issues involved if your practice wishes to film patients, as addressed in this American Medical Association ethics opinion: http://www.amaassn.org//ama/pub/physician-resources/medical-ethics/code-medical-ethics/ opinion5045.page. 

For further information contact Chief Operating Officer and General Counsel C. Scott Litch at (312) 337-2169, ext. 29, or slitch@aapd.org.  

Click here for a PDF version of this article.

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