SEP 2017

MedEsthetics—business education for medical practitioners—provides the latest noninvasive cosmetic procedures, treatment trends, product and equipment reviews, legal issues and medical aesthetics industry news.

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20 SEPTEMBER 2017 | Med Esthetics LEGAL ISSUES LEGAL ISSUES Social media postings are designed to encourage interaction— but that interaction is not always positive. including its website, marketing and promotional materials. It should also include permission for the practice to exclusively use the results and proceeds of these materials. To protect against claims from a patient who later revokes consent, the form should also note that where the material has been uploaded to a social media website or other web- site, the use and contractual obligations may be perpetual and irrevocable, and that it may not be possible to ensure that all copies of the material are deleted or cease to be used, and that the practitioner is not responsible for doing that. Any revocation of consent must be in writing. INTENDED USES In some cases, practices may create procedure videos for their YouTube channels and then create shorter, abbreviated versions of the video for sites such as Facebook or Instagram. Before-and-after images of this procedure may also become part of your website gallery or social media pages. To protect your practice, regardless of where and how the materials will be used, the Release and Informed Consent should indicate that the provider and all designees have the right to use, incorporate, broadcast, distribute, reuse, publish, republish, alter and/or edit the material and/or the patient's name, likeness, voice and portrayal in whole or in part, severally or in conjunction with other material for any purpose and in any manner whatsoever as the provider so chooses in any and all media, now known or hereinafter devised, in any and all versions, throughout the universe and in perpetuity, as well as for promotion, merchandising, publicity and advertising. It is essential that the consent be broad enough to allow the provider to post the photograph or video in any format. The patient must execute a release with the understanding that all rights in and to the material, including the negatives, outtakes, sounds and the images contained therein, are the sole and absolute property of the provider. This includes ensuring that the patient expressly understands that he or she has no right to payment and that the provider does not need to request permission by the patient or any third party prior to any distribution of the materials. The form must also indicate that should there be a death or disability of the pa- tient after the release is signed, that the release shall survive the patient's death. Social media postings are designed to encourage interac- tion—but that interaction is not always positive. The release, therefore, must include a covenant not to sue the provider or practice for any claim or cause of action, whether known or unknown, for libel, slander, invasion or right of privacy, publicity or personality, or any other claim or cause of action, based upon or relating to the use of the material. FTC REGULATIONS Once the proper consent is obtained from the patient, prac- tices need to understand and follow regulations related to the use of patient images and testimonials. The Federal Trade Commission has stringent rules when it comes to physician advertising. It cannot be false, deceptive or misleading. So all before-and-after photographs must be accurately labeled to refl ect the procedure performed, the length of time between the photographs and whether the photos have been retouched. It is also important to note that the results depicted in the photographs are not a guarantee of any re- sults and that individual results may vary. If any patient is paid for the use of the photographs, this must be stated as well. If the subject is not a patient of the practice, there must be a disclaimer advising the public that the person photographed is not a patient. If your practice uses images from other physicians, manu- facturers or websites as your own, you must receive permis- sion from the owner of the images and pay any required fees for their use. © GETTY IMAGES

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