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Will Camera Photos from Your ED Wind Up on the Web or in Court?
Identifiable pics have been posted
Given the fact that almost every patient, family member, and ED staff member is carrying a cell phone, it's not surprising that inappropriate photos or videos have been posted online which means increased legal risks for EDs.
"There have been cases in which doctors and hospital employees have been terminated by posting pictures on social media sites," says William Sullivan, DO, JD, FACEP, director of emergency services at St. Margaret's Hospital in Spring Valley, IL, and a Frankfort, IL-based practicing attorney.
Don't Permit It
Matthew Rice, MD, JD, FACEP, former senior vice president and chief medical officer at Northwest Emergency Physicians of TEAM Health in Federal Way, WA, reports that the American College of Emergency Physician's Medical-Legal committee has looked at this specific issue. "There is such a potential for violation of confidentiality that some of us on the Committee felt that use of camera phones is not something that should be permitted," says Rice.
While some EDs currently have policies against cell-phone use in the department in order to keep noise levels down, Rice says confidentiality is an even more important issue. He recommends posting signage stating that audiotaping or videotaping is not permitted in the ED.
If someone takes a cell-phone camera photo of an ED patient, Rice says this may well be admissible evidence in the event of a lawsuit. "There is pretty good legal precedent for discovery," he says. "With cases involving videos of births and surgeries, there are some pretty significant case numbers that have come up."
If signs are posted in the ED, however, Rice says that the argument could be made that the video or photo was illegally obtained and should, therefore, not be admissible. "The bigger issue, I think, is the privacy issue for all patients, particularly with the potential of live streaming," he says. "You don't want to be Skyped when you are having a heart attack."
Even if it's a family member using the cell-phone camera, Rice says to remember that the patient may not want to be photographed. "Think of the consequences," he says. "They send it out to 100 friends who put it on YouTube, and now it's out all over the place. You can get an injunction and get it removed, but by then it could be all over the world."
Whether the photo ultimately ends up being discoverable or not, says Rice, posting them "is not the right thing to do."
Posting pictures of ED patients, Rice says, should be strictly avoided due to "confidentiality, professional norms, and risks of disclosure that may easily go beyond the usual professional communication channels."
Unfortunately, there have been cases around the country of ED staff members posting photos of patients, says Corey M. Slovis, MD, professor and chairman of the Department of Emergency Medicine at Vanderbilt University Medical Center in Nashville, TN.
"Photos have been posted where one can clearly identify the individual in the photo, even though an amateurish attempt has been made to obscure the person's identity," he says. "I would be very surprised if there were not lawsuits relating to this already in the legal system."
In some cases, he notes, parents have successfully sued ED physicians and hospitals for alleging child abuse, even when statutes provide immunity. If an ED physician's Facebook page contained a photo of an allegedly abused child, or referred to seeing a child who had allegedly been abused, when, in fact, abuse hadn't occurred, says Slovis, and the patient or family's identity could be ascertained from that electronic transmission, either directly or indirectly, "that physician is, of course, liable."
As for camera pictures taken by others, Slovis says that no one should be in the room except individuals that the patient has requested be present or members of the health-care team. "And no one on the health-care team should be transmitting any information about a patient that is not for the medical record," he says.
What the patient's visitors do is somewhat out of the ED's control, acknowledges Slovis, but he recommends that a policy be in place regarding use of camera phones. Vanderbilt's ED policy states that pictures of patients, regardless of whether they are taken by a high-resolution or cell-phone camera, may only be secured after a release of information has been signed and witnessed.
"Our only exception is that we videotape our Level 1 Trauma Center resuscitations under state stature-protected laws. Those are used only in our Trauma-Emergency Medicine conference," says Slovis. No other photographs are permitted within the ED unless the patient has signed a form stating that the ED can use the photograph or electronic image, he says.
"Many patients are quite willing to do this, as long as it's for medical education," adds Slovis. Slovis says that posting pictures of patients is a clear violation of their privacy and should never be done.
"The releases that patients sign invariably have verbiage for medical education," he says. "Their understanding is that this is potentially for use in a textbook, not, 'Can I take your picture and show it to the world?'"
Slovis notes that until fairly recently, no strict policies existed on hand-hygiene practices either. "One didn't need cell-phone camera policies 10 years ago. Now, some people have two or three phones on their bodies at all times," he says. "It is incumbent on all hospitals to deal with potential problems, and this is a potential problem."
For more information, contact:
Michael Blaivas, MD, RDMS, Vice President, Emergency Ultrasound Consultants, Bear, DE. Phone: (302) 832-9054. E-mail: firstname.lastname@example.org.
Matthew Rice, MD, JD, FACEP, Gig Harbor, WA. Phone: (206) 790-5371. E-mail: email@example.com.
Corey M. Slovis, MD, Professor and Chairman, Department of Emergency Medicine, Vanderbilt University Medical Center, Nashville, TN. Phone: (615) 936-1315. E-mail: corey.slovis@Vanderbilt.edu.
William Sullivan, DO, JD, Frankfort, IL. Phone: (708) 323-1015. E-mail: firstname.lastname@example.org.