A picture worth a thousand words

(REDPIXEL/DEPOSIT PHOTOS)

Cellphones are not only computers and instant communicators in our pockets; they are also high-tech cameras at our fingertips. As cellphones evolve, so do the abilities of the cameras on cellphones. This is great for those “picture-perfect” moments.

But what about those “not-so-perfect” moments? For example, when patients have visible injuries?

This article outlines what providers should consider when determining whether to photograph a patient’s injury/wound, what leaving it up to the patient risks, the steps to take to safeguard and preserve pictures as part of the medical record, and how this comes to play in the courtroom.

Is it worth taking a photograph?

Whether to photograph a patient’s injuries/wounds is hugely dependent on each scenario and the health professional’s field. However, if a patient has a visible injury, especially in the event it progresses, there should be a consideration for photographing the injury after gaining the patient’s consent.

By taking the active step to photograph the patient’s injury, the healthcare provider can utilize the photographs to accurately record the initial injury, record the progression of the injury, utilize these photographs for other healthcare consultations for the patient as required and safeguard against the photographer patient.

The photographer patient

Patients will take photographs of the injuries, and if not them, their friends or family. Multiple factors go into taking a picture and can impact the quality of the picture and the final result of the picture.

Amber Bockin

As seen with any camera, a photograph’s end result depends on multiple factors. Some factors that impact the result of a photograph are: (1) the lighting in which the photograph is taken; (2) what time of day the photograph is being taken; (3) if flash is being used; (4) if a filter has been added; (5) the angle at which the photograph is being taken; and (6) whether the photograph has been taken to reflect the entire extent of the injury.

By allowing a patient to be the sole photographer, a healthcare provider relinquishes control of the setting and manner in which the photograph is taken. Therefore, multiple photographs of the injury can look different based on the above factors causing a potentially unclear image of the injury. Healthcare providers understand the injury and, with the utilization of the medical record, can take necessary steps to ensure the same photograph is taken of the injury during each step of progression.

Preserving the photographs for the medical record

Under applicable standards, like traditional components of the medical record, any photograph taken of the patient by the healthcare provider or received by the healthcare provider from a patient that relates to an injury/wound must be preserved as a part of the medical record and retained for any legally required period of time.

It is crucial to safeguard the photographs to the extent required under the Health Insurance Portability and Accountability Act, or HIPAA. If the photograph is being taken by a healthcare provider on a cellphone, the provider must ensure that a secure mobile application is being utilized that can interface with the medical record. In other cases, it may be necessary to save printouts of the photographs in the medical record. Some electronic medical record systems may also allow a “copy and paste” feature in which the photographs can be copied into the record.

The date and time of day a photograph is taken should always be clearly identified when the photograph is made part of the patient’s medical record. Showing the progress (or lack thereof) of the injury/wound, and the appearance of the injury/wound on a given date, is almost always important for documentation.

Conversely, photographs in which the viewer is left to wonder about the date and time it was taken have minimal value. And an adverse party in litigation will always suggest that the photograph was taken on a date and time most advantageous to their legal position. Date- and time-stamping the photographs omits that potential pitfall.

HIPAA in the background

Photographs can fall under protected health information, or PHI, when it demonstrates individually identifiable health information and relates to a patient’s past, present or future physical or mental health condition. HIPAA protects photographs falling under this category.

HIPAA is a federal law that established national standards to protect the privacy and security of sensitive patient PHI. It includes significant penalties, and providers must ensure their actions remain compliant with HIPAA even when preserving the photographs of patients.

A photograph is considered PHI according to HIPAA when it includes any portion of a patient’s face, tattoos, birthmarks, distinctive injuries and other identifying features, and relates to a patient’s healthcare. HIPAA protection extends not only to those photographs taken by the healthcare provider, but also photographs the provider receives from the patient.

Courtroom impact

Should a lawsuit between a patient and healthcare provider reach the trial phase of litigation, photographs can be powerful tools for both parties in the courtroom.

In medical malpractice matters, typically, the patient and healthcare providers testify to the care and treatment they received/provided. Judges and jurors use these photographs as a visual guide to understand the testimony being provided by both the healthcare provider and the patient. It helps develop the series of events from how the injury first occurred, through how the injury progressed, until the end result.

By utilizing photographs at trial, little room is left to think beyond the circumstances and extent of the injury at issue. Therefore, it is important for healthcare providers to have an active role in the photographing process to ensure that what the healthcare provider sees in the office is the same image seen at trial.

Final thoughts

Photographs have multiple uses and can be effective tools both in the healthcare and courtroom settings. In healthcare, photographs can accurately reflect and track the injury from the initial presentation to the end result. While in the courtroom setting, you can then use those photographs taken throughout the care and treatment of the patient.

And although healthcare providers provide testimony to explain what happened, a picture is truly worth a thousand words.

Amber Bockin is an associate in Hancock Daniels’ Virginia Beach office where she handles medical malpractice defense and long-term care/assisted living facility matters.

Disclaimer: This article is not intended to provide legal advice or suggest a guaranteed outcome in photographing a patient’s injuries or using photographs in various settings.  Readers seeking legal advice regarding photographing a patient’s injuries or HIPAA compliance should consult with an attorney.