"Boston Med" show raises questions about media access in hospitals
Same issues at play on smaller scale with local television crews
Health care providers are becoming more open to the media and willing to comply with requests for access that in years past would never have been allowed, but a television series is raising questions about how much media access is too much. The ABC series "Boston Med" brings those issues to light as it depicts the physicians, staff, patients, and families who were filmed over a four-month period at Massachusetts General, Brigham and Women's, and Children's Hospital Boston.
The series has been lauded in the press as an educational and emotional glimpse into the everyday life of a hospital, but some legal and risk management experts are wary about the potential downside of such media exposure. They also point out that the concern is not just for the handful of hospitals that will ever be invited to participate in a prime time network television show, but also for health care providers who are approached by local news media for much smaller scale productions.
"Boston Med" is just an especially prominent example of how media access can create potential legal liabilities and ethical concerns, says plaintiff's attorney Tanya Gendelman, JD, in Brooklyn, NY. The same issues will arise when a small-town news crew asks for similar "behind the scenes" access to a health facility, she says.
'Disaster waiting to happen'
As a plaintiff's attorney, Gendelman sees plenty of opportunity for legal action and says the hospitals are foolish to expose themselves so much.
"The 'Boston Med' TV show is yet another example of a potentially huge legal and financial disaster waiting to happen," she says. "In the long run, open media coverage of everyday events at these hospitals could force the hospitals' closure due to major medical, legal, and financial liabilities."
Hospitals run the risk of compromising their mission, Gendelman says. Even if the media presence is thought to have a minimal effect on patient care, she asks why even the smallest impact is tolerated.
"A hospital is not a movie set. When it comes to saving people's lives, no reputable medical provider in his or her right mind would want this kind of notoriety, unless they are looking to switch careers from medicine to television and movies," Gendelman says. "For example, a doctor performing surgery on a patient under critical conditions, could be easily distracted by having a TV camera in his face. And it would take more of the medical staff's valuable time to prepare for surgeries, not to mention a much greater exposure to infectious diseases brought in from the outside by the TV crews and their equipment."
Informed consent problem
One major problem with such media access is the issue of informed consent, Gendelman says. Camera crews are allowed to film patients and distraught family members without asking their permission, and then the producers seek permission to air the footage. If the patient or family member says no, the footage is not used, according to the hospitals and ABC.
But Gendelman says that asking permission after the fact does not solve the problem. Even though the person can refuse permission later, that will not change the fact that a camera crew producing a commercial, for-profit product was allowed to film the patient's most difficult and private moments, she says. That dilemma was illustrated in the first episode of "Boston Med," which included a story line about a police officer being shot in the face. When he arrived for trauma care, the camera was looking over the shoulders of the trauma team, directly into his bloodied face. He could not possibly have given consent to be filmed at that moment, much less truly informed consent, Gendelman says. Even asking him at that time would be unreasonable, she says.
The result, Gendelman says, is a depiction of the hospital violating the man's right to privacy in a terrible moment.
"In our country's presently popular notion of transparency, this type of a TV show is a straight road not only to civil, but criminal liability, as well," Gendelman says. "Allowing wide access to doctors, staff, and their patients is simply a bad idea. There may be hundreds of various liability issues, each one coming down with a force of a lethal weapon against the very people who have brought additional troubles upon themselves in our already failing medical system."
Not the first series
"Boston Med" is not the first such series about hospital life. ABC broke new ground in this area with the 2000 show "Hopkins 24/7," by the same producer who did "Boston Med," Terence Wrong. (Wrong did not return phone calls by HRM seeking comment.) The same risk management issues were raised at that time, but a spokesman for The Johns Hopkins Hospital says none of the worries came to fruition, and the experience was positive for the hospital.
Some of the concerns over "Boston Med" involve the way the show was being advertised and comments made by the producer. Some television ads showed dramatic scenes of someone fighting in a hospital, a staff person carrying leather restraints, plus doctors and staff carousing after hours. Wrong was quoted in the New York Daily News as saying that the show would depict medical errors or other problems.
"In a few cases, it's due to the inexperience of residents," he told the Daily News. "In another case, which you'll see, it's a major error in a surgery."
Contract language important
Risk managers must be involved in the decision process when an organization considers special media access, says Michelle Hoppes, RN, MS, AHRMQR, DFASHRM, president-elect of the American Society for Healthcare Risk Management in Chicago, and president and CEO of Patient Safety and Risk Solutions in Grand Ledge, MI. The risk manager should weigh the risks and benefits, using an enterprise risk management approach, she says.
The enterprise risk management approach requires looking at the potential risks and the willingness of the organization to take on those risks in exchange for the expected benefits, she says. The evaluation should include the financial risk, the market share risk, the operational risk, and the reputation risk.
"I would assume that in this situation, the benefits would be to educate the public, help them understand the provider's role, and to gain public support and help advance the mission of health care," Hoppes says. "Then we have to look at the risks."
And there are definitely risks, Hoppes says. The first concern is patient privacy and whether people truly understand what they are getting into when they give consent for their images to be used in the television program, she says.
The issue of consent with camera crews is difficult, Hoppes says. Anyone agreeing to be on camera must truly understand what he or she is signing, or the consent is not valid, she says. The agreement with the media should state that the health care provider is in charge of determining what patients may be approached for consent and when, she says.
"There is a very fine line between trying to be transparent and increasing the public's awareness vs. respecting the patient's privacy at a very sensitive time" she says.
Public image at stake
Such a media event could have a positive or negative outcome, depending on how the program is portrayed. There is the risk that the hospital's public image could suffer from something shown on the program, she says. Hospitals may have little control, if any, over what is eventually shown. When asked about her thoughts of showing a medical error as part of the documentary, Hoppes indicated the depiction of a medical error on television is not necessarily a bad thing, if it is used as an opportunity to inform the public about the realities of health care and also the efforts towards patient safety.
"It potentially demonstrates that humans are fallible, but you also should show the many mechanisms in place, the checks and procedures, the safety net that is in place to ensure patient safety is a top priority," Hoppes says. "We'd want to promote our risk management profession's mission, safe and trusted health care, rather than causing concern and fear for our patients. This is certainly an area for caution."
Risk managers should require some degree of involvement regarding who is approached for videotaping and what is shown on the program, Hoppes says. It is vital that the program be an honest, well-rounded depiction of the hospital a documentary vs. a drama for ratings. The contract with the producers should stipulate that the show will provide that balanced approach, showing not only the mistakes, but also the system that prevents them, Hoppes says.
"If it is not a balanced approach, but just drama for a television show, then I would urge great caution there," Hoppes says. "I don't think that is promoting our mission of safe and trusted health care, and it could cause real concern among our patients. I would want to make sure that our message of dedication to patient safety comes through loud and clear."
Risk manager involved from start
The risk manager at two of the "Boston Med" hospitals Massachusetts General Hospital and Brigham and Women's was concerned about all those issues when she first heard of ABC's interest in filming at the hospital. Marilyn A. McMahon, JD, says most of those concerns were worked out in the contract with ABC before filming ever began, she says. The patient confidentiality issues, for instance, were addressed with the consent forms the crew used for any patients, family, or staff who appeared on camera. If someone was incidental to a scene, but did not want to be shown on television, that person's identity would be blurred.
The staff also were allowed to opt out of the filming, and some did so, McMahon says.
ABC had its own forms the network wanted to use, but McMahon insisted on reviewing them to ensure compliance with HIPAA and state laws. In addition, ABC agreed in the contract that the crew would stop filming any time a patient asked them to.
"Even though this was a crew that had worked in hospitals before, we put them all through the same HIPAA training that we put all our employees through," she says. "We figured, if nothing else, it wouldn't hurt for them to have a refresher."
McMahon says she also considered the impact on the hospital's reputation and how footage from the show might be used against the hospital in court. She says she was swayed by the fact that the health care industry is pushing for more openness and transparency, and the public expects it.
"That was my job to consider the risk and bring that to the senior people in the hospital who were trying to make the decision whether to do this," she says. "You have to have a lot of faith in the people who are doing this, and we had the benefit of knowing that they had a lot of experience doing this in a hospital before. We knew what their process was and what their product looked like."
The error in surgery discussed by the producer occurred at Massachusetts General, McMahon says. Because they were confident that ABC would depict the entire situation rather than focusing on the error itself and blaming individuals, McMahon says she was not overly concerned about the error being shown on television.
McMahon says she expects the experience to be positive, showcasing the hospital's physicians and staff, and also demystifying what goes on in a large hospital.
"I know there will be people who focus only on the negative, but I'm confident that the public will take away a positive image of the hospital from this," she says.
Sources
For more information, contact:
Tanya Gendelman, JD, Brooklyn, NY. Telephone: (718) 616-1414. E-mail: [email protected].
Michelle Hoppes, RN, MS, AHRMQR, DFASHRM, President and CEO of Patient Safety and Risk Solutions, Grand Ledge, MI. Telephone: (517) 881-8987. E-mail: [email protected].
Marilyn A. McMahon, JD, Risk Manager, Office of the General Counsel, Massachusetts General Hospital, Boston, MA. E-mail: [email protected].
Health care providers are becoming more open to the media and willing to comply with requests for access that in years past would never have been allowed, but a television series is raising questions about how much media access is too much.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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