More perils of U.S. sectoral privacy law

By Leslie Francis

A recent unpublished decision of the Minnesota Court of Appeals brings the perils of sectoral privacy law into sharp focus: Furlow v. Madonna Summit of Byron, 2020 WL 413356 (Minn. App. 2020) (unpublished).  Minnesota protects patient health records but not, apparently, photographs of patients posted on social media by health care facility staff.

V.F. was a patient at Madonna Summit of Byron, a senior living facility with independent living, assisted living, and memory care units. Jane Doe was a nursing assistant at Madonna. After V.F. pulled a fire alarm, annoying Jane, Jane snapped a photograph of V.F. and posted it on her personal social media page.  Jane captioned the photo: “This little sh-t just pulled the fire alarm and now I have to call 911!!! Woohoo.” The photo contained no further identifying information.  It didn’t name V.F., say where she lived, or identify Jane Doe or where she worked. It was, however posted on Jane Doe’s personal account, thus identifying Jane Doe to those with access to her account. V.F.’s personal representative sued for damages under the Minnesota Health Records Act. The Minnesota Court of Appeals upheld dismissal of the complaint, concluding that the social media post was not release of a “health record” under Minnesota law.

What’s wrong here? Minnesota defines a “health record” as “any information, whether oral or recorded in any form or medium, that relates to the past, present, or future physical or mental health or condition of a patient; the provision of health care to a patient; or the past, present, or future payment for the provision of health care to a patient.” V.F.’s personal representative argued that the photo was a “health record” because it revealed V.F. “present mental health or condition.” Under the Minnesota statute, moreover, a health record is not limited to the patient’s chart or test results; it may be “any information, whether oral or recorded in any form or medium.”

The court decided that the photo didn’t come within this statutory language. The photo didn’t name V.F. or “identify any private medical information, condition, or past, present or future treatment.” While Jane Doe was wearing scrubs in the photo, the photo didn’t state that she was on the job or name where she worked. The photo didn’t state anything explicit about V.F.’s health condition–and an earlier, also unpublished Minnesota decision had held that the statutory definition of “health record” did not include release of information from which a person’s status as a patient could be inferred. (Rhoades v. Lourey, 2019 WL 1006804 (Minn. App. 2019) (unpublished).

As the court admitted, the photo was in “bad taste.” Small comfort to patients whose photographs may be spread through social media without their consent.

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