January 26, 2011
Nursing School Can't Expel Students for Posting Photo to Facebook--Byrnes v. Johnson County CC
By Eric Goldman
Byrnes v. Johnson County Community College, 2011 WL 166715 (D. Kan. Jan. 19, 2011). The complaint.
You've probably already heard about this case. Four nursing students posted photos of a patient's placenta to Facebook, and the school expelled them in response. The students sued the school for reinstatement, which the court grants in this ruling.
The case turns on two key facts. First, the placenta photographs were not identifiable to the patient, even though the photos had some time-related information that could have narrowed down the possible placenta-birthing patients. This raises re-identification issues we've discussed numerous times on the blog; even if the combined facts of placenta photo + time information don't themselves identify the patient, those two pieces of data plus other datasets could lead to reidentification.
Second, the clinical supervisor knew the students were taking the photos. The students further claim they told the supervisor that they were going to post the placenta photos to Facebook, to which the supervisor allegedly responded "Oh, you girls." The court analyzes these facts by saying:
photos are taken to be viewed. When Delphia granted permission to take the photos, it was unreasonable to assume that they would not be viewed. If the photos were objectionable, to say nothing of objectionable to the point warranting expulsion from the nursing program, then it would not have mattered whether the photos were viewed on Facebook or elsewhere. By giving the students permission to take the photos, which Delphia admitted, it was reasonable to anticipate that the photos would be shown to others.
It's a little hard to parse this statement. The court could be saying that it really believes the supervisor expressly or implicitly approved the Facebook publications by saying "oh, you girls." Or, the court could be saying that even if the supervisor never knew about the students' intent to post on Facebook, the supervisor should have assumed that the photos would be seen by a larger audience at the time the supervisor approved/acquiesced to the taking of the photos. This latter interpretation isn't very comforting. Many photos are never published to the public. For example, the students could have taken the photos for archival purposes or for further self-study. So I'd like to think the court wasn't saying that consent to photo-taking automatically means consent to widespread publication of that photo.
This case reminded me a lot of Yoder v. University of Louisville. That case similarly involved a nursing school's expulsion of a nursing student in response to a social media publication. In the Yoder case, the nursing student's publication was much more troubling in that it said possibly mean things about patients. Nevertheless, both cases involve: (1) nursing students perhaps showing insufficient sensitivity towards patients' interests, and (2) nursing school overreactions to student participation on social media. I wonder if something funky is going on in the nursing school community or if these cases are just coincidences.
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