With ABC camera crews in house, Johns Hopkins limited its risk of liability
November 1, 2000 7 minutes read
With ABC camera crews in house, Johns Hopkins limited its risk of liability
Hopkins 24/7’ shows unprecedented media access
The popularity of reality television is leading to more and more requests for media access to health care facilities, sometimes far beyond just a reporter hanging around the emergency room. The recent experience of Johns Hopkins Hospital in Baltimore raises serious questions for some risk managers, but it also may show how the situation can be managed by a risk manager and legal counsel working closely together.
Johns Hopkins was the recent subject of a six-hour, prime time, ABC News mini-series that garnered substantial publicity because of the way the hospital granted unprecedented access to the facility, its staff, and patients. It is not unheard of to have a camera crew in clinical care areas, but Johns Hopkins granted the ABC team virtually free reign to go wherever it wanted, 24 hours a day for three months in fall 1999. Because of the expansive nature of the videotaping, it was impossible for the hospital to have a public relations or risk management representative escorting the camera crews.
The ABC crew videotaped patients during emergency care, psychiatric patients during counseling, and staff during candid moments of reflection, anger, and self-doubt. The unusual access posed many potential threats to patient confidentiality, but the risk manager and legal counsel at Johns Hopkins tell Healthcare Risk Management they are satisfied with the way their precautions worked.
"Our primary concerns were privacy and confidentiality, above everything else," says Meg Garrett, RN, MED, JD, senior counsel for the hospital. "We give very decent access to local television crews on a regular basis, but nothing like this. This was a very unusual project, and because of that, we had to come up with some procedures that we don’t normally use."
Some risk managers see a problem
ABC wanted to obtain footage showing nearly every facet of patient care at the hospital, plus behind-the-scenes snippets of life among the Johns Hopkins staff. The ABC production team convinced leaders at Johns Hopkins that it had good intentions and could provide a realistic portrait of life at the respected hospital, but only if it had much more access than a media crew might normally expect.
The ABC team gained the support of a number of prominent physicians and other staff at the hospital, but Garrett worried about how such free access could threaten patient confidentiality, and she was concerned about the other risk management implications of allowing members of the media to run around the hospital unleashed.
Her concerns were shared by Rick Kidwell, JD, director of risk management. "From a risk management standpoint, you’re not supposed to have any visitors running around the hospital on their own, much less media with cameras," he says.
Some risk managers say they were quite troubled by what they saw on "Hopkins 24/7," partly because of the message it could send to the health care community and the public at large. Sandy Mahon, vice president for risk management and quality assessment with Program Beta, the risk pool for hospital districts in California, based in Alamo, coordinates risk management activities for 77 hospitals. She says she would discourage any of her hospitals from allowing such widespread media access.
"I’d call it a form of sensationalism, and it puts health care in a media slot," Mahon says. "I think in the long run it will definitely erode good professional practices. This is not an appropriate way to do business."
Mahon notes that patients traditionally have assumed that the hospital is a private place of sorts where they can expect some degree of confidentiality at all times and complete confidentiality in some situations. But with more hospitals agreeing to let media film in emergency situations and similar private moments, Mahon says there may be a trend toward seeing health care as entertainment.
"That, frankly, is a big worry of mine," she says. "It erodes some of the traditional barriers to patient privacy, the way those cop programs with cameras in people’s homes erode the idea that you have any privacy at home. It’s kind of a sad reflection of where we’ve gone for entertainment as a society."
Others could follow Johns Hopkins’ lead
Mahon says she is concerned that other health care workers will get the idea that if a respected institution like Johns Hopkins allows cameras in private situations, then protecting patient confidentiality must not be so important. That attitude change isn’t likely to happen overnight, she says, but it could happen over time.
"It gives the health care employee one more excuse to bend the rules, to lose that sensitivity to the laws that protect the patients and their rights within the hospital," she says. "People working at hospitals get a message from this kind of show, and it’s not good."
Mahon’s concerns are shared by Janet Tokos, RN, coordinator of risk management for Wellstar Health System’s Physicians Group in Marietta, GA. She tells Healthcare Risk Management that she also would discourage granting widespread media access to private patient situations.
"There is a presumption by patients that the hospital is a private area where private things happen, and they may not like it if someone comes in the room with a camera, even if they ask permission before filming," she says. "You run the risk of alienating a certain part of your population. This sort of thing could have as many downsides as upsides."
Tokos and Mahon both expressed strong concerns about the validity of the consent granted by patients during the "Hopkins 24/7" taping. The Hopkins legal team, Garrett and Kidwell, developed a special consent form that the television crews could hand out to patients and have them sign before taping continued. A doctor or nurse would approach the patient along with the camera crew. With psychiatric patients, Hopkins required the attending physician to obtain the consent.
In emergencies and other situations in which the patient could not immediately provide consent, the camera crews were allowed to videotape and then seek consent afterward. "We made it clear that if they did not get consent, that videotape must never leave the premises here," Garrett says. "Amazingly, the patients were very willing. When I watched some of the things the patients allowed film crews in there for, I was surprised. The patients welcomed them with open arms."
ABC did not allow Hopkins to review the videotape or the finished product before it aired. But the producers agreed not to use any videotape of patients unless they had signed consent forms from the patient, guardians or, in some cases, the next of kin.
The hospital also tried to inform patients as early as possible that they might encounter the television crews. Placards were positioned at entrances and throughout the hospital reminding everyone that the cameras were present and that they could refuse to be taped. Garrett says she knows of only one patient who initially consented but then said she didn’t want ABC to use the tape of her in a stressful situation. The tape was not used.
"If there was any doubt that the patient understood the consent form, the attending physician discussed it and decided whether the patient had a level of understanding," Kidwell says. "If there was any doubt, they didn’t tape. They pretty much avoided the geriatric population because of it."
Was patients’ consent valid? Some say no
Despite the precautions, Tokos and Mahon question whether patients could truly grant informed consent in some of the situations in "Hopkins 24/7" or in other television programs that follow patients from their first encounter with paramedics and into the ER. Even if they signed the forms, the patients may have felt they were expected to cooperate, or they may have just been too anxious, scared, and stressed to make a decision about waiving their privacy rights, the risk managers say.
"There’s no question you could argue that the person was incompetent at the time to make that judgment," Tokos explains. "Is it ethical to approach someone who is in the middle of a situation like that for consent to something that really is superfluous? We have to worry enough about getting true consent for important things in those situations."
Mahon agrees, saying she doesn’t think such consent is truly valid when patients are anxious and in unfamiliar situations. She says the problem is even worse when the camera crew is allowed to tape in emergent situations and then obtain consent later.
"If you come into the ER with your drowned 3-year-old and the cameras are rolling, I think that’s unconscionable," she says. "It’s almost like they’re taking advantage of someone at their most frail moment."
Tapes could pose liability risk in litigation
Tokos raises another worry — the possibility that footage from such a project could be subpoenaed by a plaintiff’s attorney. Such candid footage, especially emergency scenes, could prove powerful in front of a lay jury. Just as with videotapes of surgery or childbirth, the footage does not have to show any wrongdoing to be damaging to the hospital’s case. "Just the fact that you have blood and gore means the attorney can use it as an inflammatory agent with the jury," she says. "It might be showing a normal amount of blood and completely routine treatment, but the attorney can say, Hey, look at all that blood!’ and Look at the way they’re flopping his leg around.’"
Additionally, she questions whether staff would alter their behavior because they knew cameras were around. If they were self-conscious or distracted by the camera, their performance could be impaired, and the hospital would be liable for allowing the media access. Even if the camera does not affect patient care, the plaintiff’s attorney still could make that argument for the jury.
Tokos and Mahon say they would not automatically refuse a request for media access similar to "Hopkins 24/7," but they would discourage the idea and insist on strict limitations. Many hospitals would be interested in such publicity, Mahon says, "but I’d remind them that their business is the delivery of health care."
Garrett and Kidwell say Hopkins administrators decided to grant the unprecedented access because they were sure the program would be educational and provide new insight into the real world of health care. "It seems there are a lot of these programs out there already," Mahon says. "I’m sure they had good intentions to be educational, but I think what they were seeking to do is not the same as the message that was conveyed to the health care community. I just hope the rank and file health care workers don’t see it and conclude that privacy is no big deal and they can stop worrying about it so much."
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