Red Flags – Before and After Pictures

February 23, 2022

Before and after pictures are the life blood of many aesthetic practices. In this episode, Michael and Brad share the stories of two different medical providers and the impact before and after pictures had on them personally and professionally. Tune in as we discuss HIPAA, medical marketing, and compliance considerations for your practice.

Listen to the full episode using the player below, or by visiting one of the links below. Below is the episode’s transcript which has been edited for readability. If you have any questions or would like to learn more, email us at info@byrdadatto.com.

Transcript

Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto. Legal issues simplified through real client stories and real world experiences. Creating simplicity in 3, 2, 1.

Brad: Welcome back to another episode of Legal 123s with ByrdAdatto. I am your host Brad Adatto with my co-host Michael Byrd.

Michael: Thanks Brad. As a business and healthcare law firm, we are sometimes triggered by certain buzzwords our clients will say in conversation. We know there is potential disaster when we hear these words and we’re immediately on high alert. This season’s theme is red flags.

Brad: Ooh yeah. Well Michael, in 1989.

Michael: Ding Brad, first of all if I had a nickel for every time I heard you say, back in 1989. And I thought we had an arrangement that we were going to stay away from the nineties and the eighties. Just as soon as you started speaking, I [00:01:00] should have dinged you.

Brad: Okay. Moving on, you and I both watched a show from 1989, started 1989 called Seinfeld.

Michael: Very popular show back in the nineties. Yes. And they have been featured in our other episodes at different points in time, are mentioned. And, I’ve been guilty party of that as well. So yes, I’m a big fan and it’s just recently been released on Netflix.

Brad: That’s right. So an entire new generation gets to watch it. So again, my old stuff’s coming back in. Michael, have you ever heard the boy wizard called Harry Potter?

Michael: No, Brad, I’ve never heard of Harry Potter. I’ve got five kids, two boys, all ranging in age from seventh grade to young adults. [00:02:00] Yes, Brad, I know who Harry Potter is. And you also know I need context.

Brad: Fair enough. I’m glad you asked for some context, the original title of the Seinfeld show was called Seinfeld Chronicles. This title was shortened due to the confusion that among viewers many thought the name was too similar to another show called the Marshall Chronicles.

Michael: Don’t remember that one.

Brad: Right? No one’s ever heard of it since. Additionally, the Harry Potter book published in America at the very first one was called Harry Potter and the Sorcerer’s stone and said their original title, which was Harry Potter and the Philosopher stone. And the American editors thought the title, the Philosopher’s stone was just too confusing for American’s.

Michael: Well, look at the big brain on Brad, making a little play on title changes. If you figure out how to connect Seinfeld and Harry Potter, then kudos. And speaking of name changes, there’s a bunch of companies that have some pretty [00:03:00] forgettable original names. Did you know that AOL used to be called quantum computer services? And that Google used to be called BackRub.

Brad: Wait, can I ding a name? BackRub? Backrub sounds like a stalker website or some CD business that is only open after hours.

Michael: Yeah. They got into some more seed capital and decided to change their focus. Starbucks used to be called Starbucks coffee, tea, and spice. And I’m not kidding here Brad, Pepsi Cola used to be called Brad’s drink.

Brad: Ding! I’m so glad they name changed, Pepsi is not a good name. It’s way too inferior of a drink to have such an awesome name.

Michael: In other words, Brad’s drink, Brad is too good for an inferior quality.

Brad: No, no, no, Pepsi everyone knows that. Well, all right, Michael, when we were preparing for this today’s original show, we [00:04:00] originally had thought this title would be red flags: medical marketing, but the more we kind of discussed the context of what we will be talking about today, which is really before and after pictures, we had this aha moment. We really need the change of title, and focus on a core red flag. Which is before and after pictures, thus allowing our audience to be more focused on a red flag inside of marketing.

Michael: So we messed up on the name and you decided just to sugarcoat it by comparing us to Harry Potter and Seinfeld. I like it.

Brad: Yes. Yes. And the shift of the title is going to launch us. This is going to be one of the greatest podcast episodes ever.

Michael: Okay. Well number one Riley, let’s check Brad’s drink over here. I definitely do not think it’s Pepsi, especially cause we know in Texas, that’s an inferior drink.

Brad: Yes.

Michael: I think it might be something a little stronger to give him some liquid confidence, but I like your big dreams, Brad. Brad, let’s get started with [00:05:00] today’s story on before and after pictures.

Brad: Perfect. Well, Michael, as we discussed how before and after pictures, that basically are the lifeblood of any aesthetic practice on other shows.

Michael: I’m going to have to give you a ding. This is a context ding.

Brad: This is like the second context ding. It seems like today.

Michael: Well that’s pretty much one of my things.

Brad: Yes, that’s what I heard.

Michael: So for our listeners out there, they’ll know that when we say aesthetic practice, that we’re incorporating a ton of different medical practices. So let’s just reset. Aesthetic practice could be a plastic surgery practice, a dermatology practice, medspas, weight loss centers, wellness centers, hormone replacement centers, or a cosmetic practice. And second, for our audience who may not be following the aesthetic industry before and after pictures are generally modified or cropped to only show the areas of where the medical services were [00:06:00] rendered. And so you can’t actually usually know who it is, that was the patient, who received the service?

Brad: Correct. And this week we’ll discuss two different medical providers in the impact the before and after’s had on them, both professionally and personally. Today, the first story starts off in Florida. We have a plastic surgery client that after many years of being part of a bigger practice, decide to leave and set up shop on his own. We’ll just call him Dr. Potter.

Michael: Let me guess his first name is Harry.

Brad: Ugh, Michael. How did you know? Oh my gosh. So Dr. Potter’s practice was from an area near Orlando, Florida. And for those who don’t know the wizard world of Harry Potter at universal studios is down the road from there.

Michael: Orlando is the straw that stirs Brad’s drinks. I know you’ve read all the Harry Potter books. So how many hours have you spent in wizard world? [00:07:00]

Brad: Sadly none. But you are reminding me it’s time to start planning my next vacation. I think Florida is maybe something we should be considering, but let’s get back to our story. So Dr. Potter provided notice he was leaving the practice and eventually came and talked to his employer, Dr. Malfoy. And they were able to start figuring out ways to separate. It was mostly amicable, but you know, anytime doctors leave a practice and where they separate, there can be some hard feelings. And Dr. Malfoy and the practice was mad. That Dr. Potter was leaving, but there’s really nothing that Malfoy could do contractually to prevent him from leaving.

Michael: I’m proud of you for not talking about how they were issuing spells on each other or anything like that and keeping the story focused. All right. I like it. So yeah, I mean, doctor divorces or separations can go smoothly or full on Jerry Springer, much like real world personal divorces or separations. My question for you is, was there a fight [00:08:00] over the non-compete or a fight over the before and after pictures?

Brad: Awesome question, sounds like you’ve been around this before. No, there was not a fight on either. Dr. Potter left and set up shop and just launched his new website.

Michael: So that’s a little confusing because our season’s theme is red flags and I’m supposed to ding you and I’m feeling a very large absence of being able to ding so far. You have not done a good job so far in picking your story.

Brad: Well, Michael, hold onto your magical Quid ditch broomstick. Let me get some more fun facts in there. Well, Dr. Potter left and he hired a marketing company. It was recommended by one of his good friends that owned a construction company.

Michael: Ding!

Brad: And this marketing company had actually never even worked with the plastic surgeon before.

Michael: Ding!

Brad: When the marketing company started to set up Dr. Potter’s website, they pulled all the before and after pictures off [00:09:00] Dr. Malfoy’s website.

Michael: Ding!

Brad: And never determined, which physician actually provided the medical services.

Michael: Ding!

Brad: The marketing company basically then launched the website with the best before and after pictures that the marketing company selected.

Michael: Ding again, Brad, you’ve totally redeemed yourself.

Brad: Yes. Thank you. I appreciate that. So no surprise to anyone in the aesthetic industry, Dr. Malfoy and his partners were fuming when they saw this new website. Dr. Malfoy sent some death spells towards Dr. Potter.

Michael: Ding!

Brad: I mean a cease and desist letter to Dr. Potter.

Michael: Ding!

Brad: And Dr. Malfoy filed the complaint for unethical behavior to a national plastic surgery organization. Which they both happen to be members of.

Michael: Ding!

Brad: This opened up an investigation of Dr. Potter for violating the organizational rules.

Michael: Wow. That escalated quickly. Well, let’s [00:10:00] pause. Tell me what the second story was.

Brad: Alright, so our second story, we have a nurse practitioner George Costanza, working for a plastic surgeon Dr. Cosmo Kramer in New York City.

Michael: Seinfeld. Nice.

Brad: Thank you. So, Costanza helped run Dr. Kramer’s noninvasive medical services. But Costanza wanted to start his own med spa. Dr. Kramer started hearing these rumors from patients and staff that Costanza was soliciting Dr. Kramer’s patients.

Michael: Ding!

Brad: And ended up firing Costanza.

Michael: Whoa. Okay. Well, what happened next?

Brad: Well, Costanza had already had cell phone numbers of many of the patients on his cell phone.

Michael: Ding!

Brad: And left and started his own practice while working for Dr. Kramer, Costanza had already started to download these before and after pictures.

Michael: Ding!

Brad: And Costanza started using these before and after pictures on all his social media feeds.

Michael: Ding!

Brad: Dr. Kramer’s team. Again, saw these pictures, many who Costanza had never treated.

Michael: Ding!

Brad: Following suit. Dr. Kramer said, [00:11:00] you know what sending another cease and desist letter.

Michael: Another death spell. Even in Seinfeld.

Brad: Yes, but this is Seinfeld. So it has to be something different, like no soup for you.

Michael: Okay. Ding!  

Brad: And reported Costanza to the nursing board.

Michael: Ding! Wow. Okay. Well, Brad, you managed to weave two stories through and around Harry Potter and Seinfeld and with the commonality of some before and after picture problems. And I look forward to going into commercial and talking on the other side about the different dings and red flags from these stories and breaking it down from legal prospective.

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Brad: Welcome back to Legal 123s with ByrdAdatto. I’m your host Brad Adatto with my cohost Michael Byrd. Before we went to commercial break, I just finished two stories coming from two different, with lots of red flags, one from the world of Harry Potter, one from the world of Seinfeld.And let’s really start with the very first story as to why you kept dinging me, cause at first you were afraid that there would be no dings and then we found as you heard lots of dings. So when I said that, Dr. Potter, Dr. Harry Potter had hired a marketing company. Why did you ding me?

Michael: Well, you didn’t just say you hired a marketing company.

Brad: Ah. You remember.

Michael: Yes. You told me you hired a marketing company with one of his buddies that did a different line of work. I don’t remember exactly what that line of work [00:13:00]

Brad: Construction.

Michael: Construction. Yup. There you go I was listening, Brad.

Brad: You were.

Michael: Let’s just start with this acknowledgement. Because there’s nothing, it can paint the picture that marketing people or marketing websites, etcetera, have some sinister motive to it. And there’s not that at all. A marketing company’s perspective is to do the job you hired him for, which is to get leads. And that’s their world and someone that’s doing this in another industry has no reason to believe that the medical world is as upside down as it is from a compliance perspective. Where what is up, is actually down, and things that are intuitive business tactics are often problematic in healthcare. And so the ding, is that Hey you’re putting together a website, that’s going to be creating leads for patients. And we’ve talked about this in other [00:14:00] episodes that their doctors are regulated by their different medical boards and the different states medical boards on marketing and then to take it even a step further, there’s some extra sensitivities with aesthetic marketing because you are really trying to get someone to electively choose to get a procedure done and go to you to do it. And so it has that consumer feel to needing to get them in and makes you more attempted to push boundaries to create leads and when you’re putting before and after pictures and stuff like that on you’re putting in sensitive body parts on. And so if you’re not aware of the regulatory landscape, there can be problems. Thus, the ding.

Brad: Yeah. And I [00:15:00] think on your point, just for audiences reminder. We’ve talked about this in other episodes is, in most states the theme of the enforcement is when you are using medical marketing, it can’t be false misleading or deceptive. And, you know, when you really think about those before and after pictures, if they’re not your before and after pictures and you’re just using models or something else, that can be considered false, deceptive and misleading. And in this case with the construction company, they can make a really pretty website with lots of SEO, but they had no idea about these limitations in place. So, good ding. I’ll give you credit for that.

Michael: Okay.

Brad: All right. Additionally, in our Harry Potter story, you dinged me when basically the marketing company pulled all the before and after pictures of Dr. Malfoy’s website and selected the before and after pictures. Why was that?

Michael: Well, one, you just touched on there’s about, there’s kind of three different areas to think about. One is what you just said, which is that [00:16:00] you have this false and deceptive. If you’re holding out a patient is something that is representative of your work and you didn’t do it. You can get in trouble for that. Going back to the model thing. So if another doctor operated on the patient, then that’s a big, no-no. The second thing we haven’t talked as much about this, is kind of a contractual intellectual property component. And before and after pictures are very valuable to a practice. Typically, when you are a part of a practice all the IP is owned by the practice. And so when the departing, whether it’s a partner or an employee leave, if they take those things, you ding it to say, okay, did they just take something that they shouldn’t have? And are they going to get in big trouble for this? So you have potential exposure in this case with your ex partners for taking intellectual property, that is not your own. And then, the final thing is [00:17:00] more of a regulatory HIPPA risk. And that is now you have a doctor taking before and after pictures, and plucking them onto this brand new website and the patient most likely did not sign a consent for these before and after’s to go to Dr. Harry Potter’s new business. And so you’ll have a HIPAA breach.

Brad: Yeah. And we’ll talk, I think maybe I’ll address, you said two big issues with HIPAA and IP. But I want to stick with this story before, I would like to follow up on two things you said about that, but I want to keep going with this one, because this is unique compared to our next story. Which I agree with everything you said, as far as you know, making sure when someone is, if it’s a, it’s a physician and you have a contract, what does your contract say? Do you have the proper consents of the patients to allow you to utilize those? All those are other important [00:18:00] elements. No matter what, in your side of your practice. So let’s keep moving through this story though. And this one’s unique because this one, when Dr. Malfoy is upset and not only did he send a cease and desist letter, which was the death spell, as I called it. But he also reported Dr. Potter, to this national plastic surgery organization. Maybe you can first address, you and I use this term all the time, but what the heck is a cease and desist letter?

Michael: I mean the easiest way to think of it is what my discussion a moment ago about the IP rights, that the cease and desist letter is a usual first consequence of you breaking that. In other words, you’ve taken something you shouldn’t have taken. And it’s akin to a demand letter, basically from the owner of those rights and stop immediately or you’re going to get sued. And so, it is a shot across the bow aggressive action. That is the [00:19:00] fruit of him having unknowingly, taken a bunch of pictures and put them on his website.

Brad: So it’s not a spell that kills people?

Michael: It doesn’t actually kill people nor is it a spell Brad, so make sure we don’t tell clients that.

Brad: Okay. Yes, got it.

Michael: And then you asked about these national organizations in plastic surgery, for example, there’s ASPS, ASAPS, there’s other organizations. And they have their own rules in play.

Brad: Typically like the code of ethics.

Michael: Yes. And so, you as a member of one of these organizations have to follow the code of ethics and surprise, surprise a lot of them have rules that track medical board rules, so false and deceptive advertising and taking things from your partner and posting them as your [00:20:00] own, are the types of things that they frown upon.

Brad: Yeah. And if I remember correctly in this particular matter, you know, it was, as they were saying look you’re infringing on, as you said that the intellectual property, your misappropriating my property. And the ramification is unlike a medical board investigation. When you lose your license, you could be kicked out of the society, which then impacts you with the other doctors you work with, and your ability to show up and speak or attend these conferences. So it sounds silly to maybe an outside lay person, but it’s a big deal if you are kicked out of these well-known societies.

Michael: Yeah, you kind of become an outcast in your world. It’s a much bigger deal than we could possibly depict, you know, just talking about it.

Brad: Yeah. And I think one of the things that when we have these separations and these providers, you solely treat certain patients or whatever it ends up being. [00:21:00] Who owns these before and after pictures always get lost in the shuffle. And sometimes it’s cause it’s hard to think through, because maybe you did touch that patient or maybe you did a little bit of the treatment on them. But that’s the problem that I think a lot of people don’t realize is that it’s typically the physician who treating it, is that the before and after pictures are theirs. And I think I mentioned earlier which is, if you have an employment agreement and your employment agreement says that the facility or the practice owns all of them, it’s really hard for you to walk away and say, these are my before and after pictures. And a lot of those employment agreements do say that. And so one of the things I think we always recommend is if you are a provider and you plan to want to utilize these before and after pictures, have those hard conversations up front with your employer to say, Hey, I would like to be able to use these on social media. Or use them, if I ever leave or use them to get my board certification. The other piece is that it’s not just up to you, the you and the employer, the patients in their consents, as we said [00:22:00] earlier, they also have to be able to allow you to leave and continue to utilize those same ones. So it’s a bigger picture. A lot of things just weren’t happening on there. So let’s switch to our next story, Michael. All right remember in this one, we have George Constanza and Dr. Kramer. And in this one you did hit me with several dings again and some of the facts were similar, so that your answers would be the same, but one that you hit me with. Is when I said, well, that, Costanza had all the cell phone numbers, or a lot of the cell phone numbers of Dr. Kramer’s patients, why’d you ding me on this one?

Michael: Yeah. It is, you’re right. Everything kind of weaves together in both of these stories as to your issues, but here kind of a different spin is that owning or having those cell phone numbers and the names is confidential information. And in fact, that is again an asset of the practice that you can’t just take it, going back to, the whole [00:23:00] IP discussion we had earlier. Again, I mentioned HIPAA once earlier, and that is that it’s not just between the practice and in this case Costanza, but the patient has a say in all of this and a right, and a voice. And so there are HIPAA implications that come into play when you take a patient name and cell phone and stick it into your cell phone. So talk a little bit, Brad, about HIPAA.

Brad: Yeah. And we’ve said HIPAA a couple of times, for those that don’t know, it stands for the Health Insurance Portability and Accountability Act.

Michael: Ding! Sorry. I mean, you’re already putting me to sleep, so that was a sleep, ding.

Brad: Alright. Alright. Stay with me. Cue the basic, HIPAA is the standard for controlling how patients’ health information must be disclosed. Its primary goal is to ensure that individuals health information [00:24:00] remains confidential, but still allow the flow of information, health information to be provided between the providers, your providers, and other healthcare providers. And, obviously looking out for the wellbeing of the patient. Now sounds awesome, right? As we mentioned other shows, HIPAA may not directly apply to many practices in the aesthetic market, but many courts have established the HIPAA is the standard of care that you have to file for patient privacy. Providers and practices, unfortunately have been held to be negligent for not following the standard, Michael, but no more HIPAA talk.

Michael: Yes, please stop Brad.

Brad: You’re welcome. On the second story. You also dinged me when I started saying that Costanza, while working there started downloading this before and after pictures, and then he started using it on the social media and this kind of, again, somewhat tracks what we talked about earlier, but you did ding me. So why’d you ding me since he never treated these patients?

Michael: Well, let’s kind of flip it around a little bit and talk about all this from the practices perspective. And [00:25:00] we’ve talked about how this is confidential information, intellectual property, in both stories. And, the question starts to become, well, what controls did the practice have in place to protect this? And so there’s one level of, well, you may not have gotten your stuff stolen if you’d have been doing something to protect it, which is kind of practical and obvious. But then there’s a second thing, which is you can actually be hurt legally in an argument. If you’re trying to make the position that you have this information as confidential information. But you don’t do anything to treat it that way. In other words, it’s just, anybody that works in an office can flip open the computer and get access to all this stuff. The court’s going to say, you’re calling it confidential, but it’s not really treated accordingly. And so you actually create a secondary risk where you could actually lose your argument with the court over that issue. [00:26:00]

Brad: Yeah. And we probably could spend at least 15 minutes alone talking about intellectual property and confidentiality, but obviously the point of this is to educate people, not put them to sleep, so we want them to stay awake. I’ve already done HIPAA talks, so let’s just keep moving forward. But for our audience to understand the intellectual property laws do exist. They absolutely can impact medical practices and medical providers. Most practices, just in general, have the right to all their intellectual property, which includes a lot of times before and after pictures. So you’re not always freely able to just use it from one place to the next.

Michael: Okay. Well, tell us what happened with both of these stories.

Brad: All right. Well, Dr. Potter and Malfoy, they’re eventually able to work everything out. Dr. Potter, Harry, had to fire his marketing company and basically just take his website down to remove all the offending pictures. The society eventually dismissed the complaint. [00:27:00] It made the rounds that was going on. So people kind of knew about it. So it wasn’t exactly private, but, yeah. A lot of people might think, oh, well that was a good result, but not really because he delayed, really the launch of his practice. It led to him having to take down his website, basically develop a whole new website. And as mentioned before, the before and after pictures are key to aesthetics or in this case, the plastic surgeons practice, because it really demonstrates when someone’s looking for you, how good or bad you are at it.

Michael: Yeah, true stuff. And you know, not to mention the egg on his face that he got with the embarrassing having to fix the mistake that his construction marketing company had. Well, tell me about Costanza and Dr. Kramer story.

Brad: Yeah. So again, a lot of major red flags in this story, Costanza did take down Dr. Kramer’s pictures from the social media website. Costanza is still in hot water right now. Costanza may have [00:28:00] borrowed other images for his social media, from other medical practices all across the country.

Michael: Ding!

Brad: And the nursing board is now investigating Costanza for practicing, without a collaborating physician.

Michael: Ding! Brad, we’re supposed to be cleaning it up and wrapping up at the end and not be adding some extra dings to the story. Maybe, it should have been in the dumpster fire season.

Brad: Well, you did ask me what was happening. So that’s what’s happening. All right, Michael, these stories remind me of how tricky before and after pictures can be. During the season three, if you remember, we did have a show called when Private Parts create Privacy Problems. And on that show, we talked about earlier, we talked about how easy it is to breach someone’s privacy. This show really was highlighting and addressing how hard it is to make sure who owns the before and after pictures, who can use them and on what platform. So hopefully our audience will see how tricky utilizing these images can be for any provider or practice and that those providers and practices that [00:29:00] are in the aesthetic industry, they need to focus on this issue, follow the rules and regulations and make sure that they’re in a safer position. So they won’t be our next red flag story. Michael final thoughts.

Michael: Yeah, it’s kind of dovetails off that think before you act is the bee here. I mean, you know what bigger lesson could Pepsi have learned than to name their drink after you to start with and what a bomb that was. So, do that or you know, go get a construction company to build your website and steal a bunch of photos that you don’t own. All bad ideas.

Brad: All bad ideas. All right Michael, well, guess what? We are back next Wednesday with an all new show red flags non-competes are not enforceable.

Outro: Thanks again for joining us today. And remember, if you liked this episode, please subscribe. Make sure to give us a five- star rating and share with your friends. You can also sign up for the ByrdAdatto newsletter by going to our website at byrdadatto.com. ByrdAdatto is providing this podcast as a public service. This podcast is for educational purposes only. This podcast does not constitute legal advice, nor does it establish an attorney-client relationship. Reference to any specific product or entity does not constitute an endorsement or recommendation by ByrdAdatto. The views expressed by guests are their own and their appearance on the program does not imply an endorsement of them or any entity they represent. Please consult with an attorney on your legal issues.

ByrdAdatto founding partner Brad Adatto

Bradford E. Adatto

ByrdAdatto founding partner Michael Byrd

Michael S. Byrd