A nurse’s aide working in a Minnesota senior living community did not violate the state’s Health Records Act when she shared a photograph of a resident on social media, so there is no “cause of action” regarding the community’s vicarious liability, the Minnesota Court of Appeals said Monday in an unpublished opinion.

William Furlow, the assigned representative of the resident (referred to in court documents as “V.F.”), had brought the lawsuit against Madonna Summit of Bryon, an independent living, assisted living and memory care community in Bryon, MN, but a trial court had dismissed it.

The complaint stemmed from a June 2017 social media post by the aide (referred to in court documents as “Jane Doe”) that included a photo she took in a mirror. In the photo, V.F. is shown sitting in a chair in the background, and Jane Doe is in the foreground, with her face covered by her cell phone. The aide captioned the photo: “This little sh-t just pulled the fire alarm and now I have to call 911!!! Woohoo.”

The Minnesota Health Records Act prohibits the unauthorized release of someone’s health information. The appellate court, however, ruled that, although it was “not posted in the best taste,” the social media post did not include any other personally identifying information and so did not violate the law.

“While her [V.F.’s] hair and eye color are visible, and one could infer her approximate age, there is nothing in the photograph to identify any private medical information, condition, or past, present or future treatment,” the court said. “Although Jane Doe is wearing scrubs, there is nothing to identify … where she is working.”

The court said that because the photo and caption do not constitute a health record, it would not address whether the senior living community was “personally and vicariously liable for the social media post,” as Furlow had argued.

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