Court: Posting patient’s photo on social media not illegal
MINNEAPOLIS (AP) — A senior care facility nurse’s aide did not violate state law when she posted a photo of a patient with Alzheimer’s disease on social media because the photo itself was not a health record and didn’t violate the patient’s privacy, the Minnesota Court of Appeals ruled.
The ruling, issued last week, found that since the 2017 social media post provided no other identifying information, it wasn’t a health record. The post included a demeaning message.
Madonna Summit in the southern Minnesota city of Byron told the aide to remove the post. The woman was later fired. Staff also received training on patient privacy and cellphone use. But the ruling alarmed some elder care advocates who say it essentially tells aide workers they can post images of patients online without legal repercussions.
“This ruling could have serious implications for people living in residential long-term care,” Joseph Gaugler, a professor at the University of Minnesota’s School of Public Health, told the Star Tribune. “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.”
In the June 2017 post on the aide’s personal social media page, the patient is sitting in a chair and the aide is wearing scrubs. Under the photo, the aide wrote, “This little (expletive) just pulled the fire alarm and now I have to call 911!!! Woohoo.”
The aide told investigators with the state Health Department that she posted the photo because she “thought it was funny.”
The patient’s husband sued Madonna Summit, alleging the post revealed information about the health of his wife, who died in 2018.
In its review, a three-judge panel of the Court of Appeals considered whether the post and photo should be classified as a health record. The Minnesota Health Records Act defines a health record 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 records include lab reports, X-rays, prescriptions and other technical information used to assess someone’s health, the court said.
“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,” Senior Judge Roger Klaphake wrote. The decision upholds a lower court’s ruling to dismiss the lawsuit.
Peter Sandberg, an attorney for the patient’s husband, said the court failed to recognize the “potent threat” posed by social media. Sandberg said someone who knew the aide could have identified where she worked and deduced that the woman suffered from a mental impairment based on the photo’s caption.
“A smartphone is a potent tool for invading someone’s privacy,” Sandberg told The Associated Press, “and what’s posted on social media can become a permanent stain.”