Need opinions from RN's for my Ethical Dilemma Assignment!

Esme12, ASN, BSN, RN · Apr 3, 2012

I am still not so sure this is not a HIPAA violation. I also have never heard a MD say it was OK to take a picture of an x-ray to show anyone. The rareness of the disease itself can be the identifier.

For example......Lets say I took care of someone who had a foreign object in the rectum and perforated their bowel. When the x-ray returned it showed the largest carrot I have ever seen inside someone abdomen. If I took a picture of this and showed it to my students and the family overheard or saw this picture that knew the gentlemen they would know who the x-ray was from. When the family gets upset and complains that they heard this, it can be viewed as a HIPAA violation as it is not the need to know basis for the care of the patient.....The "Need to Know rule" is an important factor in determining HIPAA violations. HIPAA specifically mentions "biometric identifiers" as finger prints, voice prints, full face, and ANY comparable photo/digital images of an individual. Possibly making x-rays PHI. (protected health information)

The individual needs to be given the opportunity to agree or object and give consent. PHI may be released to certain entities such as police without consent of the individual but it is limited. There are a few other reason that PHI can be released without consent, like the CDC, but a nursing student with a phone camera and a rare disease isn't one of them. This doesn't fit the "minimum necessary" released for a strict "need to know".

Having a rare disorder myself, that affects only 10-20 people per million, that involves a very distinct rash and discoloration of my skin. I am asked, or sign a consent, every time someone wants a picture and if they may release it for books and studies. If a picture of a picture was taken...without my permission, on a cell phone to share with other people.....however good intended.....I would be very upset and feel that I have been violated. If found, when investigated, that it was not HIPAA.....I would still sue for invasion of my privacy.........due to the fact it was within the confines of the hospital where the expectation of privacy is assumed.

Now if you sneak a picture at the mall there is nothing I can do because the assumption of privacy isn't there.

I still believe it is a violation of HIPAA because the x-ray is PHI reguardless of the rarity of the disease. School throw in the rarity of the disease to lure you into thinking it's ok, but it is not.

I hope this helps.:)

nurseprnRN, BSN, RN · Apr 3, 2012

i am sorry to disagree. the criteria for what constitutes phi is very clear; a picture of a diagnostic film with none of those criteria cannot be in violation of the law. also, m&m conferences are specifically for teaching and the information shared there is for purposes of patient care. sharing it with staffers is not the same thing as sharing it with the riders on the #46 bus line.

now, if the student shows it at clinical conference or her instructor shows it in lecture and says, "this was taken at county general on march 31 when a 45-year-old white female who worked at the blue moon cafe next door was brought in after suffering a seizure in the kitchen," that would be sharing data that could be traced back to the patient, and would violate the law, no matter what was on the screen.

showing the (unidentified) image at lecture with general discussion of the age and clinical presentation of the patient would not be a violation of the privacy act. merely possessing the (undentified) image is not. sharing it for the purposes of education is not.

Gal 2:20 · Apr 4, 2012

ok - OP, This is an "Ethical Dilemma Assignment"??

I can't believe I am the first person to mention this - but your instructor has ripped the "dilemma" from last year's headlines.. She/He has changed it up slightly but not enough to matter..

Ok - no flame wars if I don't have all the details correct on this, I am going by memory..

This incident happened at a Junior College in Overland Park, KS and made national news - it was reported in most of the Nursing journals & publications, that's why I can't believe nobody on this thread has brought it up yet. I am in a BSN program at a school right down the street from this JuCo.

It goes something like this: During OB Clinical's, a senior in the RN program was absolutely AWEstruck upon her experience of witnessing a live birth and was especially in awe of the placenta. She asked her Clinical Instructor if she could take a picture of the placenta and her CI told her that as long as the patient consented, and the student insured that it was in compliance with HIPPA, (no PHI ) she could take a picture of the placenta.

The student did take the picture, which she subsequently posted on FB. She and 3 other students were summarily kicked out of the nursing program when news of the placenta posted on a student nurses FB got around.

IIRC, it wasn't violation of HIPPA law that the Nursing Department used as a basis to dismiss the 4 students, but violating some part of the Nurses Code of Ethics, or one of the State boards codes.

Well, these students were in their last semester before graduating and sitting for NCLEX. They brought a lawsuit against Johnson County Community College. The case ended going all the way up to the Supreme Court of KS, where the judge ruled in favor of the students.

His rationale?

Well, the school was standing on the fact that the CI did not give the student permission to post the picture on FB.

The judge said that people take photos for one reason only - to share them with others. When the Instructor gave the student permission to take the picture, he/she implicitly gave permission to post it anywhere and everywhere. He ruled that the 4 students be readmitted without penalty and they were, and they graduated (I think) this past fall.

Esme12, ASN, BSN, RN · Apr 4, 2012

It's a fine line.....I wouldn't risk it.

nurseprnRN, BSN, RN · Apr 4, 2012

here's a great resource, right from the horse's mouth, the ocr. this should answer any questions that come up. have it tattooed on your arm, or maybe on the back of the ward clerk's neck, for easy reference.

hipaa - frequently asked questions

Princess1234 · Apr 4, 2012

M&M conferences are protected by peer review statutes.

Princess1234 · Apr 4, 2012

interesting, somewhat related story...no photos, and the patient was not identifed

apr. 2, 2012 11:04 am et

judge: nursing student waived free speech rights

brett barrouquerebrett barrouquere, associated press [/url]

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louisville, ky. (ap) — a former university of louisville nursing student waived her rights to free speech by signing an honor code that included a non-disclosure requirement, so she can't collect damages for being dismissed from school over a blog post, a federal judge ruled monday.

nina yoder "had no constitutional right" to blog information about a live birth she witnessed as part of a childbearing course because of the confidentiality agreement, u.s. district judge charles r. simpson iii wrote.

"because yoder herself agreed not to publicly disseminate the information she posted on the internet, she is not entitled to now claim that she had a constitutional right to do so," simpson wrote.

the ruling came as part of a three-year legal battle brought by yoder, who was dismissed from school because of a blog post titled "how i witnessed the miracle of life." yoder was later reinstated and graduated. her attorney, dan canon of louisville, said she's currently working as a nurse.

canon said yoder would appeal the ruling.

it is definitely a surprise," canon said. "as far as i know, no court in the country has ever approved this degree of control by a university over its students' speech."

a university spokesman did not immediately return a message seeking comment monday morning.

yoder argued that the school retaliated against her and tried to restrict her speech because they didn't like what she had to say on the blog. the university argued that it dismissed yoder because she violated the confidentiality agreement, not in what she said specifically.

simpson found that the confidentiality agreement allowed yoder to share information about the patients only with her instructors.

the post named the school, but not the patient. it included a variety of comments about pregnant women and children, referring to the baby as the "creep" and describing how the expectant mother vomited.

"at last my girl gave one big push, and immediately out came a wrinkly bluish creature, all picasso-like and weird, ugly as hell, covered in god knows what, screeching and waving its tentacles in the air," yoder wrote. "15 minutes later it turned into a cute pink itty bitty little baby girl."

simpson found the descriptions, including the intimate detail of the labor and delivery, to be a "clear violation" of the agreement between the student and patient.

"certainly, that was information about the mother's pregnancy and health care, and it was presented in written form on a publicly-accessible internet site, rather than 'only' to yoder's instructor," simpson wrote.

the school dismissed yoder on march 2, 2009, saying in a letter that she violated the school's honor code by posting blog items concerning patient activities and naming the university on her my space page.

yoder's blog posts on myspace, which date back almost a year, cover topics including suicide, religion, sex, guns and politics. she mentioned the university several times but revealed no patient names in postings filed along with the lawsuit.

she also frequently wrote about guns and her opposition to gun-control laws and posted pictures of various weapons on the site.

in the lawsuit, yoder said university administrators cited the gun-related postings and told her "students voiced concerns that lead us to believe you may have a gun." canon said yoder didn't have a gun at the time and has never brought a gun on campus.

______

StudentOnTheEdge · Apr 5, 2012

Thank you Princess1234! This lawsuit and from what I have learned about my current school have showed me that the schools believe they have too much power in our lives as students. As adults, We are free to do anything lawfully, but as students, we are back living with our parents and have to obey by their rules and can get "in trouble" for things that the normal Joe would be overlooked upon. Instead of using opportunities of error to teach us our mistakes, They throw the book at us the first second they have a chance by making each scenerio the worst it could possibly be when in turn, it was actually an amazing teaching opportunity.

I know of a student who had gotten in trouble with his school because of a facebook post he made reguarding his opinions in an aspect of his life. Had nothing to do with school, nurses, instructors, or patients. When do schools get the line drawn for invading our lives as students? As well, another student got into a verbal disagreement during a NONNURSING RELATED SUMMER SCHOOL class while in a nursing program and got called into the Nursing directors office to get told she is being looked at for suspension due to her "actions".

Sadly, this involvement by the schools is discouraging nursing students and ruining the precious Nursing School experience that we all crave.

Great blog guys. I appreciate all your input in this cas!. It is very interesting and a bit controvertial as well. If you have any more court cases, Post them!

nowim clean · Apr 5, 2012

Even if it does not voilate hippa every place Ive worked has had a policy of if you are not taking care of the pt you have no reason for being in the chart. Second any time a pt has a procedure done they have to sign a consent for photos and video to be filmed so they def voilated something.

juzme · Apr 6, 2012

It's a fine line.....I wouldn't risk it.

I think I am with you Esme12!!!!

Esme12, ASN, BSN, RN · Apr 6, 2012

I think I am with you Esme12!!!!

and that makes you a smart cookie!