Is it legal, to photograph someone in a vegetative state

Is it legal to photograph someone in a vegitative state inside a hospital facility? My cousin was involved in a major car accident two months ago and suffered catostrophic brain injury.

Today I saw that a family member posted a picture of him on Facebook.

My question is since he is essentially in a state of no conscious ability, and inside the walls of a hospital, is it legal what she did?

A lot is going to depend on where you are at.

This is in Florida.

Tough call.

Non-lawyer opinion: I think it's less about the vegetative state, and more about having an expectation of privacy in the hospital room. Aside from commercial use of the photo after it's taken, I think the ability to give consent (or lack thereof) isn't as much of an issue here. You can take photos of kids in public, they're not able to give consent either.

It's established that you have a reasonable expectation of privacy in a restroom and underneath your clothes. However, the case of Arne Svenson established that you DON'T have an expectation of privacy in your own home IF you leave the blinds open where people can see in - granted, that's in NY but it may still hold.

This is not legal advice. I have no expertise in the area, and I'n riffing from memory. And if you truly believe there's a legitimate cause of action you should not go into specifics about it on a public forum. Generalities are ok, but don't let anyone connect this conversation to your specific case.

I doubt there was any violation in the taking of the photo. The more pertinent question is how the the photo was subsequently used (I.e., its publication), and whether the patient was somehow harmed by that use.

I think there's little expectation of privacy here. I presume the family member was permitted to visit. And it won't help matters if the room was shared with another patient.

Other relevant questions concern whether or not the publication cast the patient in a false light (if it's true, then no action) or whether it was highly offensive (still reliant on expectation of privacy). If the occurrence of the accident was reported in the news, then the patient's condition was already made public.

As previously stated, it varies from state to state, and really from court to court or even from judge to judge.

Unfortunately, tastelessness is not actionable.

Anything is subject to legal action and you could almost certainly find an attorney willing to act on your behalf. That does not, of course, make legal action wise, productive or successful.

You might consider making your case to the posting relative. If that fails you can ask others to join you in convincing her to delete the image. Failing that, you and others can lodge a complaint with Facebook.

+1 to what George said. The law should be your last (and most expensive) resort, not your first. Talk to her, get the rest of the family to talk to her, report it as offensive to FB.

Having said that there is a lot of necessary detail missing. You didn't say if this relative is their next of kin (and thus legally allowed to give consent) or, if not, what the next of kin think. You also didn't detail the context in which the images are posted. Were they posted in a positive light as a warning to others about the dangers of X or were they posted as "look at my nearly dead relative, cool huh".

Another item of missing information is whether a representative of the hospital gave permission for taking photos.

AltgnJoey wrote in post #18030316
Is it legal to photograph someone in a vegitative state inside a hospital facility? My cousin was involved in a major car accident two months ago and suffered catostrophic brain injury.

Today I saw that a family member posted a picture of him on Facebook.

My question is since he is essentially in a state of no conscious ability, and inside the walls of a hospital, is it legal what she did?

Heya,

It's legal. It's frowned upon. But legal.

It's illegal for staff/faculty at the hospital to do that.

But it's legal for visitors to nearly do anything.

Very best,

MalVeauX wrote in post #18031678
Heya,

It's legal. It's frowned upon. But legal.

It's illegal for staff/faculty at the hospital to do that.

But it's legal for visitors to nearly do anything.

Very best,

To add to this, the person who is in the vegatative state has someone else acting on their behalf legally.

Personally, depending on what the message was, I would not have a problem with this at all. Many times there are friends and family who are not in town and this is a way for people to catch up so to speak. (facebook accounts can be made very private)

AZGeorge wrote in post #18031200
You might consider making your case to the posting relative. If that fails you can ask others to join you in convincing her to delete the image. Failing that, you and others can lodge a complaint with Facebook.

Case? What case?

The OP never said anything about wanting to do anything about this, legally. Heck, the OP never even said that he had a problem with the picture being posted to Facebook, or that it was bothersome or offensive to him. He only asked a question, and did not say or imply or infer that he had any problem with the family member posting the photo. Heck, for all we know he may be asking about the legality of it because he wants to post similar photos himself.

It is often unwise to assume that we know what someone's feelings or intentions are.

It is wise to go by exactly what someone says, and not by what you think they meant to say.

For our reference, below is a quote of the original post made by the OP:

AltgnJoey wrote in post #18030316
Is it legal to photograph someone in a vegitative state inside a hospital facility? My cousin was involved in a major car accident two months ago and suffered catostrophic brain injury.

Today I saw that a family member posted a picture of him on Facebook.

My question is since he is essentially in a state of no conscious ability, and inside the walls of a hospital, is it legal what she did?

.

MalVeauX wrote in post #18031678
Heya,

It's legal. It's frowned upon. But legal.

It's illegal for staff/faculty at the hospital to do that.

But it's legal for visitors to nearly do anything.

Very best,

From my understanding of the law I'd have to disagree. A hospital room is certainly not a public place, and patients should have an expectation of privacy in their hospital room.

Granted, we don't know the circumstances, and I'm guessing that emotions are running high for all involved. As stated by others it might just be best to ask the person who posted the photo to take it down.

OhLook wrote in post #18031670
Another item of missing information is whether a representative of the hospital gave permission for taking photos.

My educated guess is that no hospital representative, anywhere is the US, even has the authority to grant such permission. Your privacy while a patient is NOT open to the whims and interpretations any member of the healthcare team. Certainly, none in their right mind would even consider granting such permission. Professionals can and do forfeit licensure to practice for such violations. It is the medical staffs' and the facility's function and responsibility under the law (HIPAA) to protect patient privacy.

I am not aware of restrictions on legitimate visitors.

Bassat wrote in post #18033543

OhLook wrote in post #18031670
Another item of missing information is whether a representative of the hospital gave permission for taking photos.

My educated guess is that no hospital representative, anywhere is the US, even has the authority to grant such permission. . . .

The question once came up whether permission is needed to take photos in a hospital. It must have been somewhere on the Urban Life & Travel forum. airfrogusmc (Allen Bourgeois), who's done professional photography in hospitals, said permission is indeed required. I don't know how to reconcile the conflicting information from you and him.

OhLook wrote in post #18033578
The question once came up whether permission is needed to take photos in a hospital. It must have been somewhere on the Urban Life & Travel forum. airfrogusmc (Allen Bourgeois), who's done professional photography in hospitals, said permission is indeed required. I don't know how to reconcile the conflicting information from you and him.

Let us start by differentiating "In the hospital" from "of patients". Like any other private property, facility administrators control what is permitted "in the hospital", such as lobby, cafeteria, conference rooms and such. Patient care is an entirely different, federally regulated, animal. The hospital may well grant permission to video record an MD conference in the medical library. They have no such right to grant permission to film my open heart surgery. My comments are about patients.

I am not sure, either. But I'll take a stab at it. Admittedly, there are professional photographers in just about every maternity ward in the US. My guess is that the hospital vets the photographer. Possibly granting a permit or license to function on the Mother/Baby unit. The ultimate determination of whether or not permission is granted to actually make photographs of individuals, and/or their babies, is retained by said individuals. Any self-respecting photographer, granted such (lucrative) permission to function, would surely obtain permission from the subjects before proceeding.

Teaching hospitals video record procedures of all kinds for use the educational process. I suppose that is nearly essential to the learning process these days. I know I've watched a boat-load of videos on: Foley insertion, trach-tube suctioning, dressing changes, bed baths for quads, and occupied bed changes, removing sutures and the like. As a student, I was in the surgical suite for two C-sections, only with the gracious permission of the mothers-to-be. The ultimate arbiter of YOUR privacy is YOU, not the facility or any of its staff.