Shari Welch, MD, FACEP
Smile for the Camera: HIPAA and the New Social Media*
A patient sitting in the waiting room of an emergency department takes out a cell phone and uses the built-in camera to snap a few photos of the wounds of another patient. A greeter on duty witnesses this and immediately informs the triage nurse. She asks the first patient to stop taking photos and to delete those she had taken in the waiting room. The shutterbug complies, and privacy is restored. Both HIPAA laws and the newer HITECH Act require that emergency departments protect patients’ privacy rights diligently. This is becoming increasingly difficult as a result of advances in technology.
Cell phones cameras threaten privacy more than traditional cameras because they are smaller and more easily concealed. A picture can be taken while a user appears to be making a phone call or sending a text message. By the time it is noticed that photos have been taken, the images might have been sent to others or even posted on the Internet. Today, some institutions are addressing the threats this technology poses. Camera phones are now banned in certain public places where there is an expectation of privacy, such as locker rooms of fitness clubs. In health care, the concern spans beyond courtesy to a legal obligation to maintain confidentiality.
And let us look at the privacy issues in reverse: The question has to be asked “Does (filming) interfere with the performance of providers and what are the implications for quality of care?” Most of us did not train to perform technical procedures for an audience. Increasingly visitors armed with camera phones are recording the events of the day-to-day emergency department, including the technical work of doctors and nurses. This poses all kinds of problems for the institution at large. There are privacy issues of other patients to be considered and the fact that what is recorded cannot be controlled when it leaves the building. Recently an I&D (incision & drainage) of an abscess was posted on Youtube without the consent of patient or provider!
Harlan Hammond, Assistant Vice President of Risk Management at Intermountain Healthcare notes that policies in this area strive to balance competing needs and rights. “We continue to wrestle with how to balance the needs of our care providers to not be distracted … with the perceived rights or needs of patients to make a video record of their medical care”. Intermountain Healthcare’s policy stipulates that recording must be filmed from the head of the bed so as not to obstruct care or equipment. Intermountain Healthcare workers may terminate filming sessions for privacy, clinical or operational reasons at any time. Filming of other patients, Intermountain employees or physicians without their verbal permission is also not allowed by policy. Christiana Care Health System has developed a policy which forbids the use of camera phones in clinical areas altogether. Further, the policy requires the written permission to record a healthcare provider at work, the use of institutional equipment and institutional control of the images generated.
The important point for emergency medicine practitioners is to develop and enforce a policy at the institutional or organizational level. The impact of cell phone cameras and the broader issue of social media relative to the practice of emergency medicine have caught us unawares. The propensity for this technology to create risk for us (in terms of privacy, safety, performance and litigation) and it will be as boundless as the imagination.
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