Photography, Filming, and Other Recording of Patients

April 11, 2018 | Health System Risk Management

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Picture taking is commonplace in healthcare facilities. Cameras on PEDs, such as smartphones and tablets, allow patients, visitors, and healthcare staff to easily snap pictures and record images within the facility. Consider the following examples of the multiple ways that images are captured and used in healthcare organizations:

What are the risks? They are many. In addition to breach or invasion of privacy, a healthcare provider risks violating the privacy or security provisions of HIPAA and state privacy laws, exposing the provider to civil or even criminal liability if the images are misused.

Additionally, a facility or provider could face claims for invasion of privacy for failing to obtain a patient's consent to use his or her image. One court imposed liability on a physician who publicized a patient's "before and after" photos to demonstrate the effects of a face-lift he performed. The physician did not have the patient's consent, and the patient charged that the photos were embarrassing (AHIMA "Patient Photography").

Also, if a facility does not establish policies for certain types of photography—such as a father filming his child's birth—the recording could be used for purposes that the facility never intended, including evidence in a medical negligence case. In 2011, a Connecticut jury partially relied on a videotape of a birth, taken by the baby's father, to deliver a $58 million verdict against the obstetrician. This was the largest medical malpractice verdict in the state's history at the time ("Jury Awards"; "Failure").

Several healthcare facilities have dealt with negative media attention when a staff member used a cell phone camera to take a picture of a patient without the patient's consent or authorization and shared the photo with others. Even if the photos are not shared, their unauthorized taking can pose a serious legal risk to a hospital. For example, in one high-profile case, Johns Hopkins agreed to pay $190 million to more than 7,000 women because an obstetrician secretly recorded thousands of pelvic exams via a camera concealed in a pen the doctor wore around his neck (Gabriel).

The inappropriate sharing of photos and videos of patients or residents on social media sites such as Facebook, Instagram, or Snapchat has become a particular focus of media reports. A December 2015 exposé published on the website ProPublica details dozens of horrifying instances in which nursing home staff shared inappropriate, humiliating, or demeaning images of residents—often taken surreptitiously—on social media sites. (Snapchat is a social media platform in which, according to the article, “photos appear for a few seconds and then disappear with no lasting record." However, the photos can be saved by taking a screenshot with a PED.) In some cases, the residents were fully or partially clothed, in compromising positions, or undergoing abuse by staff. The article states that, although some of these instances led to criminal charges for those involved, most did not, even though they likely violated the HIPAA privacy rule. (Ornstein "Nursing...

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