Sick Pics: Legal Questions Raised by Patients Sending Nude Images to Doctors for Diagnosis

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By: Nick Mirra,

Millennials have already infiltrated the workforce for several of the nation’s most time-honored professions. As 2017 draws near, more of the technological natives are earning their ranks among these established fields. For example, the average age of matriculating medical students for the 2015-16 year was 24, which means the average medical student is a millennial.[1] What are the implications of this generation beginning to take the reins of the medical profession? One prominent consequence is that doctors are becoming much more technologically savvy as medical techniques, procedures, and protocols evolve with the incoming influx of millennial medical students. As with any advancement in technology, there are new uncharted legal questions which arise almost as quickly as the technology itself springs to life.

Telemedicine has grown increasingly popular over the last several years.[2] Patients are able to get quality medical attention from the comfort of their homes or offices.[3] Waiting lines are minimized, patients do not have to arrange for transportation to the doctor’s office, and relative costs are decreased for both patient and provider.[4] Any communications that occur over the secure telemedicine program are protected by the Health Insurance Portability and Accountability Act of 1996 (HIPAA).[5] There are many benefits to this type of treatment, and they tend to outweigh the drawbacks in the eyes of a majority of doctors.[6]

In a conscious effort to be more connected with the younger generation, doctors are charting avenues to interact with their patients in new and innovative ways, beyond the scope of conventional telemedicine. One such advancement that falls outside the protections of the telemedicine forum is that some doctors are accepting pictures of their patients’ ailments over text message and email for medical assessment. As this practice has emerged, the potential for legal mishap closely followed. It didn’t take long before patients began sending their doctors pictures of their genitalia in order to diagnose a myriad of symptoms.[7] According to one doctor, a majority of these patients are obtaining their doctor’s consent prior to sending the pictures, but some do not.[8] Another potential benefit of this type of doctor-patient interaction is that patients often do not feel as embarrassed as if they were to disrobe in front of a doctor in person.

This emerging trend is crossing into a new plane of legality that has never been addressed before. What happens when the patient who is texting a picture of their genitals to their doctor is a minor?

Receipt of child pornography is in violation of 18 U.S.C. § 2252 which states in pertinent part that it is a crime for any person to knowingly receive child pornography by means of interstate commerce.[9] The statute continues by explaining that receipt by computer satisfies the interstate commerce requirement.[10] Further, “sexually explicit conduct” is defined in part as “lascivious exhibition of genitals… of any person.”[11] Through plain meaning statutory interpretation it is evidently clear that if a doctor consented to receive a picture of a child’s genitals for the purpose of diagnosis, then it could be considered per se child pornography.

A further confounding scenario would be when a doctor receives the images without having given consent to their receipt. Would the doctor have knowingly received the pictures? In regard to child pornography, the 11th Circuit Court of Appeals has held that “a person ‘knowingly receives’ something when he… takes in that thing through the mind or the senses.”[12] The court continued to state that a person does not have to save images to a hard drive in order to receive or be in possession of child pornography.[13]

Technology has advanced the medical profession far beyond what could have been imagined even half a century ago. As progress has been made, new liabilities have also been imposed. Most currently, the scope of telemedicine is still being established. What is the legality of minors sharing explicit images of themselves with their doctors via unsecured telemedicine such as texting or email? This emerging phenomenon continues to generate a host of questions regarding the legality of such exchanges. Until the issue is taken to court, or until the legislature responds, there will continue to be gaps in the law and doctors need to be extremely cautious.

 

[1] See Age of Applicants to U.S. Medical Schools at Anticipated Matriculation, Association of American Medical Colleges, tbl.A-6, https://www.aamc.org/download/321468/ data/factstablea6.pdf (last visited Sep. 20, 2016).

[2] See AIHM Survey of Healthcare Practitioners Shows That Telemedicine Technology Is Ahead of the Current State Medical Board Guidelines, Cio Today, http://www.cio-today.com/article/index.php? storyid=030000IWF6ZO (last visited Sep. 20, 2016).

[3] See Jessica Harper, Pros and Cons of Telemedicine for Today’s Workers, Us News, http://health.usnews.com/health-news/articles/2012/07/24/pros-and-cons-of-telemedicine-for-todays-workers (last visited Sep. 20, 2016).

[4] See id.

[5] See Amanda Holpuch, Sexting for your Health, The Guardian, https://www.theguardian.com/ society/2016/apr/07/patients-texting-doctors-genitalia-photos-ethics-law (last visited Sep. 20, 2016).

[6] See Supra note 2.

[7] See Supra note 5.

[8] See id.

[9] See 18 U.S.C. § 2252(a)(2)(A).

[10] See id.

[11] 18 U.S.C. § 2256(2)(v).

[12] United States v. Woods, 684 F.3d 1045, 1057-58 (11th Cir. 2012).

[13] See id.

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