It is correct the photos are a part of the medical file where they should remain. However, his cell phone is not a part of the medical file. Further, if it is as you state a posting of pictures of you on his website which is seen by the general public without your consent your your surgeons conduct is highly improper, if not reprehensible.. You don't state when this occurred. Contact an attorney immediately, particularly to avoid any bar which might occur due to the running of an applicable statute of limitations or other statute with which you must comply. The failure to do so may preclude you from any recovery of damages to which you may be entitled.
Unless you granted this surgeon written permission to share your pictures for educational or marketing purposes, he faces significant issues by way of his conduct. The HIPAA Privacy Rule has civil and criminal penalties associated with its breach. In addition, the California Medical Board may have issues with his conduct as well.
I quote from the summary of the HIPAA Privacy Rule: " Criminal Penalties. A person who knowingly obtains or discloses individually identifiable health information in violation of the Privacy Rule may face a criminal penalty of up to $50,000 and up to one-year imprisonment. The criminal penalties increase to $100,000 and up to five years imprisonment if the wrongful conduct involves false pretenses, and to $250,000 and up to 10 years imprisonment if the wrongful conduct involves the intent to sell, transfer, or use identifiable health information for commercial advantage, personal gain or malicious harm. The Department of Justice is responsible for criminal prosecutions under the Privacy Rule."
The author of this answer is an Attorney-at-Law, licensed to practice law only in the state of Arizona. Unless both you and the author have signed a formal retainer agreement, you are not the author's client, and the author's discussion of issues does not constitute legal advice. Opinions expressed herein are solely those of the author, and are neither privileged nor confidential.
Well the truth is that you probably will never recover all of your picutures. So the question is, what are you trying to do? The CA Medical Board may have an issue with the docotr's license. They may fine him/her.
As far as Civil Litigation, it probably is a case that will not settle for much. So, do you really want to spend the rest of the year going through discovery and hiring experts and attorneys?
This is your life. If there are no facial shots, then no one probably knows who it is except for you. So, if it is worth the stress, then get an attorney.
If not, then call the Medical Board, send a cease and desist letter, and file a poice report. That should deter any thought by the doctor to try again in the future.
Your medical records (including photographs) are protected and should not be disclosed to others without your consent. In addition, the surgeon is not normally allowed to use your name or likeness for marketing purposes/financial gain without your express consent. The damages recoverable for the misuse may be for the actual damages sustained, as well as for any of the defendant’s profits that “are attributable to the use" of the pictures. Punitive damages may also be awarded if there was "oppression, fraud, or malice.” You should contact a local privacy lawyer to discuss your options.
in California the CMIA is even more restrictive than HIPPA...
This is for general information only. Nothing in this information should be construed as creating an attorney-client relationship nor shall any of this information be construed as providing legal advice. Laws change over time and differ from state to state. These answers are based on California Law.Applicability of the legal principles discussed may differ substantially in individual situations. You should not act upon the information presented herein without consulting an attorney about your particular situation. No attorney-client relationship is established.
I support you going after this parasite without delay. You indicated that only "close friends and family" would know that the pictures pertain to you; thus, we should hope that they would understand and that your personal invasion is thus contained. Regardless, there has been another type of invasion of privacy which essentially was theft of your commercial rights to your images and story. Many physicians reap extravagant excess profits (e.g., the posterboy of Florida who grossed $20,000,000 in one year giving eye injections) and thus I encourage you to get legal representation to explore a cause of action for punitive/exemplary damages with possibility of driving this parasite out of business.
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