A Kansas federal district court judge recently enjoined a community college nursing program from expelling a student for posting a photo of herself examining a placenta on Facebook. Three other nursing students likewise posted photos of themselves examining the placenta on Facebook. All were expelled from the nursing program. The woman from whom the placenta came was not shown in the photos. An instructor allowed the photos to be taken, but denied that she was informed that the photos would be posted on Facebook. One of the nursing students challenged her explusion in federal court. The judge found that there were no patient privacy rights involved. Debra Cassens Weiss describes the facts in greater detail in In Facebook Age, Do Photos Carry Expectation of Privacy? Placenta Opinion Raises the Issue. Nursing Student wins Facebook placenta photo case by Matt Campbell is another detailed article and includes a picture of the Facebook photo posted by the challenging student.
I will depart from much of the other discussion about the case and make these two arguments:
- The woman the placenta came from is personally identifiable to a point where her privacy should be protected.
- The supervisor had no authority to consent to the students taking the photos.
First off, what is a placenta? I have been involved in whelping a few litters of puppies over the past 20 years. When I first read about this case, I had a hard time believing that anyone would want a photo of the human equivalent of the little sack you tear off of the puppy when it is born, but that’s what they took a photo of. “The placenta is an organ that connects the developing fetus to the uterine wall to allow nutrient uptake, waste elimination, and gas exchange via the mother’s blood supply.” Unlike dogs, where the puppy is usually born while still in the placenta, in humans the placenta is usually expelled 15 to 30 minutes after the baby is born.
The court specifically found that “no patient privacy rights were implicated in this photo,” due to the fact that the supervisor “ensured that all patient identifying marks which might be captured by a photograph be removed before the photo was taken.” The court indicated that whether it was a “fresh” placenta is irrelevant, as the freshness could not be determined from the photo. Perhaps you can’t tell from the photo whether it is fresh, but the students and supervisor probably knew how fresh it was and that certainly is another identifier that can be used to narrow the identity of the woman it came from. The court also stated that one of the defendants “testified to some attenuated theory involving the number of births that day at Olathe Medical Center (allegedly only one), which would enable the patient to be identified. The theory is too remote and speculative.”
In Northwest Memorial Hospital v. Ashcroft, the hospital sought to quash a federal government subpoena of medical records of 45 women on whom a particular doctor performed late term abortions using a controversial method. The 7th Circuit Court of Appeals upheld the district court’s order quashing the subpoena. It found that the government failed to adequately account for the privacy interests of the women whose records it sought. The court of appeals indicated that even if the medical records were redacted to remove personal identifying information, if the women’s medical records were made part of the trial record, some of the women would be fearful that others would have enough information to be able to determine their identity and “expose them to threats, humiliation and obloquy.” The court of appeals thought that the medical histories and accumulation of information “can make the possibility of recognition very high.” The court of appeals also stated that:
Even if there were no possibility that a patient’s identity might be learned from a redacted medical record, there would be an invasion of privacy.
That is because the woman who is the subject of the records knows those are her records, even if others do not, and would still feel that her privacy was invaded.
The court’s ruling in the placenta case is just the opposite. I think the 7th Circuit has the better argument, as it would be a small matter for someone searching publicly available records to narrow down where the placenta came from to a few women. More importantly, the women who gave birth at that facility on or shortly before the day the photos were taken know who they are and know that some part of a very private moment was made public without patient consent.
My second argument, that the supervisor did not have the authority to consent to the students taking the photos, is an argument about confidentiality. The court in the placenta case used the word “confidentiality” only once: “While this Court recognizes and understands the significance of not only patient confidentiality, …” Despite this comment, patient confidentiality was not recognized by the court at all.
Under Kansas law, a patient of a treatment facility has a privilege to prevent treatment personnel from disclosing that the patient has received treatment or from disclosing confidential communications made for treatment purposes. Moreover, “the treatment personnel shall claim the privilege on behalf of the patient unless the patient has made a written waiver of the privilege.” It seems to me that the supervisor should have refused the students’ request to photograph the placenta and claimed the privilege on behalf of the patient. In any event, this decision failed to adequately consider the important rights of a person not named in the lawsuit, the patient.
Aside from the above arguments, are we willing to tolerate this type of insensitivity from our health care providers? When I begin to feel like I am being treated in an impersonal manner or sense a lack of respect, I find another health care provider. How many women across the country are going to refuse to allow nursing students to attend their deliveries as a result of this case?