What you need to know about liability and video
Risk managers are understandably cautious about utilizing covert video surveillance (CVS). Its use can expose your organization to several legal claims in the areas of state wiretap statutes, privacy rights of patients, and privacy rights of employees, says Andrew R. Rogoff, JD, a partner in the Philadelphia office of the law firm Pepper Hamilton.
To complicate matters, the legal implications of covert video surveillance vary from state to state, he says. Some prohibit the practice outright, while some permit it — with caveats. Other states are silent on the issue. So, what do risk managers need to know before utilizing CVS?
First, risk managers should be aware of the specific limitations of their state's wiretap statute, Rogoff says. Violations carry not only legal and financial risk, but they jeopardize the reputation of a health care provider. In some states, the taping could be a crime. To avoid violating a state's wiretap statute, a health provider should get consent from patients (or, in the case of patients who are incompetent, from their legal guardian or representative) to use video surveillance.
Rogoff explains that, though each state's statute may define "consent" differently, based on past federal cases, several techniques can be used to legally ensure that patients are adequately informed about video surveillance. Risk managers should ensure that all patients sign a consent form acknowledging that there may be cameras in their rooms or in the common areas of the facility. In addition, a sign should be placed at the entrance to the facility informing visitors and employees that the activity is monitored and recorded by hidden cameras, he says.
Consider right to privacy
Second, employing CVS to investigate potential abuse raises the legal question of whether such surveillance violates the patient's right to privacy and the employee's right to privacy. In many states, proving that CVS violates the legal definition of "a right to privacy" is a difficult task, Rogoff says. Most states have a high threshold. To determine whether an individual's right to privacy has been violated, courts often consider the surrounding circumstances, including the degree of the intrusion, context, conduct, and circumstances, he explains.
Employee privacy is another concern. Generally, employees in private settings have little right to privacy, Rogoff says. "Although surveillance in the workplace is believed to foster low morale, companies routinely monitor for security concerns, quality assurance, or investigation of employees' behaviors," he says. "Employees are generally not protected from surveillance because the building, equipment, and supplies are the property of the employer."
Rogoff notes that the Electronic Communications Privacy Act of 1986 prohibits the interception of communication by any electronic means, but it provides exceptions with regard to employees. One exception under the act allows the employer to monitor employees when the employee has been made aware of the monitoring or where there is an established monitoring policy.
"Under this exception, continued employment implies that the employee consented to the monitoring," Rogoff says.
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