Mar 172018
 March 17, 2018  Posted by  Breaches, Featured News, Healthcare, U.S.

Alex DeMarban of ADN reports:

A lawsuit filed Thursday asserts that an Anchorage neurosurgeon used an iPhone to improperly photograph the genitals of a patient during spinal surgery, then sent the picture to another person for entertainment.

The patient was under general anesthesia at Providence Alaska Medical Center on Dec. 8 when Dr. Louis L. Kralick “pulled up the draping covering (the patient’s) genitalia,” and snapped one or more pictures, according to the complaint filed in Alaska District Court in Anchorage.

Read more on Anchorage Daily News.

From their statement, cited in the news report, it sounds like the medical center referred the matter to law enforcement.  Because the physician is not a direct employee, there is not really a question of firing him, but because he has privileges at the center, they could revoke those, although that does not appear to have happened – at least, not yet.

A complaint was also filed with the state medical board.

The lawsuit also names the medical center as being responsible for the actions or inactions of the compliance officer who became aware of the alleged conduct. They are being charged with spoliation, but I think a lot of privacy advocates will not be happy with this part of the complaint. The complaint says that when the medical center’s compliance officer told the doctor to delete the photo from the iPhone, that officer should have known that he was involved in destroying evidence. I think most patient privacy advocates, though, would guess that the compliance officer was likely horrified by the whole situation and just wanted to make sure that the photo wasn’t further disseminated. Whether they handled this correctly or not, I think most of us can understand that this was likely not an attempted coverup or spoliation, but an attempt to stop a breach and to prevent a further breach.

Perhaps most significantly, and as ADN reports, the doctor reportedly sent some kind of apology letter to the patient after the incident. A copy of that letter was released by the patient’s lawyer to media, but does not appear to have been uploaded to the ADN story.  ADN reports:

The letter, dated Jan. 5, did not provide details about the doctor’s behavior.

“Please consider this a letter of apology for inappropriate conduct on my part in the operating room on Dec. 8, 2017, while you were in the hospital,” it says. “While I did not intend my actions to be disrespectful, I can understand why some members of the operating room staff might have thought otherwise, and as a result I sincerely apologize.

Of course, no matter how compelling things may sound in a complaint or media story or how suggestive parts of a letter may sound, none of this in any way means that the accused surgeon did what he has been accused of, and his attorney claims the allegations are “completely and utterly false.”

If the allegations are completely and utterly false, then a surgeon’s reputation is being unfairly smeared or harmed and his livelihood threatened. If, however, the allegations are founded, then the discussion we should be having is what would be the appropriate course of action for the medical center and other authorities and regulators. If true, is this something that should result in criminal prosecution under Alaska laws? Should it result in a physician losing their license to practice? How severe should the consequences be or is this a case where a refresher course on ethics would suffice?  In part, the answer may depend not only on the facts of this case, but whether any other patients or colleagues have ever raised similar concerns or allegations.

Of additional note, the physician would not provide his iPhone password to investigators. Here we go again on that? Maybe, but tell me why the physician even had his iPhone in the surgical theatre. Was that permissible under the medical center’s policies? Is that a BYOD center?

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