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Hundreds of women—Their Privacy Invaded in Their Most Vulnerable Moment—on the Gynecological Exam Table

As news continues to unfold about the now-dead Dr. Levy’s alleged use of still cameras and video recording devices to capture surreptitiously his gynecological examinations of potentially hundreds of his patients, the entire Baltimore and Maryland community is reacting to and struggling to understand how an invasion of privacy of this magnitude occurred. In a nutshell:

• Women everywhere are thinking hard about their privacy-and cringing as they visualize what happens when they hop on a gynecological examination table and reveal their most intimate body parts to a medical care provider;
• If interviews with dozens of Dr. Levy’s patients can be taken as representative of the whole, the hundreds and hundreds of women examined by Dr. Levy are experiencing the trauma commonly associated with such an abusive invasion of their sexual privacy and are experiencing emotional distress as they imagine what pictures and videos might exist and whether those videos and images are floating about on the Internet;
• Horrifically, some of Dr. Levy’s teenage patients may be possible victims, raising the question–was Dr. Levy creating child pornography;
• Federal and state law enforcement are working diligently to investigate, gather, sort, catalog and evaluate massive amounts of electronic evidence and identify victims from that evidence;
• Prosecutors are considering what electronic privacy laws, criminal laws, child pornography laws, and medical privacy laws may come into play;
• Johns Hopkins is reaching out to former patients while trying to conduct its own internal investigation and handling a PR crisis; and • Medical malpractice attorneys have rushed to the courthouse filing suits for millions in damages for medical malpractice when not a single victim has yet to be identified, although make no mistake-victims will be identified when there is this much electronic evidence.

The unfolding facts of this case reveal far more complexity, however, than a typical medical malpractice case, and a rush to the courthouse without the full facts only generates more angst and anxiety for all of the patients as they read hyperbolic Complaints, and it potentially impedes the ability of Johns Hopkins, local police and the FBI to sort through the massive amounts of electronic evidence and to identify victims.

Consider, under the scant facts as we know them, the broad array of legal areas such a large-scale electronic invasion of privacy calls into play:

• Complex federal and state electronic surveillance laws and video voyeurism laws (including Maryland’s video voyeurism statute, Md. Code Ann., Crim. Law § 3-902, Visual Surveillance With Prurient Intent);
• If any of the videos have sound recordings, the case involves Maryland’s wiretap statute, Md. Code Ann., Cts & Jud. Proc. § 10-401, Wiretapping and Electronic Surveillance Law;
• Federal and state child pornography laws, including Masha’s Law;
• It involves federal and state criminal laws;
• it involves the common law invasion of privacy torts,
• it involves medical malpractice; and • it involves common law negligence.

Calmness, thoroughness, measured cooperation with Johns Hopkins and law enforcement, coordination with victims’ rights advocacy groups, along with a broad cross-section of legal experts, is what is needed to best represent the victims in handling a case of this complexity and potential magnitude.

STSW’s team of medical malpractice attorneys-led by top med-mal attorney Andy Slutkin, their victims’ rights practice group-led by renowned victim rights advocate Steve Kelly, their privacy practice group-led by national leading electronic privacy expert and author Anne McKenna, and their criminal practice group-led by top criminal defense attorneys Steve Silverman and Brian Thompson, and the firm’s other attorneys all provide this broad cross-section of legal experience and are uniquely qualified to meet the needs of the Levy victims.