Social Media Before-and-After Post and Paid Review Incentive
A chiropractor in Concord treats a 34-year-old woman for scoliosis and chronic low-back pain. During a visit, the patient mentions she is active on social media. Without a separate written authorization, the chiropractor photographs her bare back and spine, including a distinctive tattoo, and posts a before-and-after collage on the clinic's Instagram with the caption 'Amazing correction in 6 visits-no drugs, no surgery!' The patient's face is not shown, but the tattoo and her town are identifiable. The clinic also offers a $25 credit to any patient who leaves a five-star Google review. The patient sees the post, is upset, and files a Board complaint. The chiropractor says the photo is de-identified because no face is visible and that the review credit is a 'marketing incentive, not a payment for a specific review.'
1. Identify the professional-conduct issues under New Hampshire chiropractic law and Board rules.
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Issues:
- Confidentiality and privacy: A bare-back photo is patient information. The tattoo and town can identify her even without a face. New Hampshire chiropractic rules and general privacy law require written authorization for marketing use; treatment consent is not marketing consent.
- Advertising: 'Amazing correction in 6 visits-no drugs, no surgery' implies a guaranteed result and may be misleading. Board advertising rules prohibit false, deceptive, or misleading statements and unsupported superiority claims.
- Review incentive: A $25 credit for a five-star review is a quid pro quo that can distort reviews and violate advertising or ethics rules even if phrased as 'any review.'
- Professional boundaries: Using a patient's image for clinic promotion without explicit authorization is exploitation of the treatment relationship.
The 'no face' argument does not cure the problem because identification can occur through other details.
2. How should the chiropractor respond to the Board complaint?
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Response:
- Do not alter or delete the medical record, but remove the public post promptly and preserve a copy for the Board.
- Provide a written response through counsel: acknowledge the post, explain corrective action, and avoid arguing the patient was 'de-identified.'
- Cooperate with the investigation, produce the authorization or admit none exists, and identify who approved the post.
- Audit other posts and the review-credit program; stop the incentive.
- Consider apologizing to the patient and offering to confirm removal.
The Board will focus on whether the conduct was exploitative and whether the advertising was misleading, not just on whether the patient's face was shown.
3. What documentation and consent should have been obtained before posting?
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Before posting, the clinic needed:
- A separate written authorization signed by the patient, specifying the exact photos, the platforms, the purpose of marketing, and the duration.
- A statement that authorization is voluntary and that treatment will not be conditioned on it.
- An explanation of the risk that tattoos, town, or other details can identify the patient.
- Documentation of the patient's right to revoke.
- Review of the caption by someone with advertising-rule knowledge; remove guarantees and comparative 'no drugs, no surgery' claims.
A general treatment consent or a verbal 'sure, you can post it' is weak evidence and does not satisfy a marketing authorization.