Alleged Social Media Retaliation by Doctor Breached HIPAA Privacy Rule
A physician at the Dr. O Medical and Wellness Center in San Antonio, Texas allegedly retaliated against a patient by posting a video of the individual clad only in underwear on Facebook and YouTube. The doctor’s actions, which appear to be a clear violation of the HIPAA Privacy Rule, have resulted in her being sanctioned by the Texas Medical Board following a complaint by the patient.
The patient, Clara Aragon-Delk, underwent a series of cosmetic surgery procedures starting in 2015. Non-invasive laser treatments were performed by Dr. Tinuade Olusegun-Gbadehan, and while consent was provided by the patient to have photographs and videos taken, authorization was only given for ‘anonymous use for the purposes of medical audit, education, and promotion.’
The images and video contained full face shots of the patient. Rather than protecting the patient’s privacy by pixelating the patient’s face, a video was posted to Olusegun-Gbadehan’s Facebook page without any attempt to protect the patient’s privacy.
From the video, it would appear that the patient was happy with the treatment, although around a month later the patient had changed her mind. The patient replied to the Facebook post saying “OK, I’ll make my Comment! Beware! Send me a personal message, and I’ll share my experience with this crap!”
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There were subsequent email exchanges between the Dr. Olusegun-Gbadehan and the patient in which Aragon-Delk claims Dr. Olusegun-Gbadehan acted in an abusive and threatening manner.
Aragon-Delk claims Dr. Olusegun-Gbadehan said in one email, “I will damage your professional and you will be humiliated!” Olusegun-Gbadehan also said, others “will see your glowing testimonial and your body, enjoy your Hi-Def video. Enjoy as others will do the same.”
In the complaint filed with the Texas Medical Board, the patient claimed she suffered burns during the first procedure. She also claimed to have been overbilled. In response to the overbilling, the patient contacted a merchant processing company called Stripe regarding the disputed charges.
Two weeks ago, the Texas Medical Board ruled that Dr. Olusegun-Gbadehan had violated the patient’s privacy and acted in an unprofessional manner.
The Texas Medical Board said the posting of the video was a HIPAA violation and was unprofessional. The Board also ruled that an email containing the link to a posting of the video that was sent to the patient in an unsecured format was also a confidentiality breach and was unprofessional. Dr. Olusegun-Gbadehan also sent the video to the merchant processing company in response to the billing dispute as evidence that the patient initially appeared to be happy with the treatment, but this too was a violation of the patient’s privacy.
Dr. Olusegun-Gbadehan neither admits or denies the allegations, but the Texas Medical Board’s order was agreed to by Dr. Olusegun-Gbadehan to avoid a contested hearing, according to the San Antonio Express News.
The order requires Dr. Olusegun-Gbadehan to retake the Texas Medical Jurisprudence Examination within the next 12 months.
While the matter would appear to have been settled, the patient has now sued Dr. Olusegun-Gbadehan for mental anguish, physical pain, and suffering. Patients are not permitted to sue physicians for HIPAA violations as there is no private cause of action. Consequently, a health care liability claim has been filed under state law, claiming the publication of the video and subsequent correspondence via email were intended to damage the patient’s personal and professional reputation.