Video Recording Raises Risk, Requires Policy Consideration
November 1, 2022 8 minutes read
EXECUTIVE SUMMARY
Video recording in healthcare facilities poses potential liability risks and privacy concerns. Some organizations restrict video recording in various forms.
- Smartphones and other technology raise new questions.
- Consent of both parties is necessary in some states.
- State laws may dictate whether “granny cams” must be allowed.
Video recording has been problematic in healthcare for decades, ever since the home video camera became common. With the proliferation of smartphones and remote video monitoring, hospitals and health systems are facing a new wave of questions and potential risks from video recording in patient care settings.
Many hospitals imposed limits or complete bans on video recording after many parents recorded their babies’ births. The recordings became popular before hospitals thought to address the practice, but risk managers were concerned recordings could be used against them in malpractice cases — with juries potentially misled by images they did not fully understand.
The resulting policies could be enforced when the use of a video camera was obvious, but the discreet use of smartphones makes it easier to skirt prohibitions. Also, the availability of cameras intended for remote monitoring of patients raises new concerns, as does the popularity of videoconferences with patients.
In addition to concerns about video recordings used in malpractice cases, prohibitions on recording in patient care settings were prompted by federal enforcement actions involving a TV show that recorded a documentary-style series in three hospitals, notes Colin J. Zick, JD, partner with Foley Hoag in Boston.
The HHS Office for Civil Rights (OCR) settled with the hospitals in 2018 for compromising the privacy of patients’ protected health information (PHI) “by inviting film crews on premises to film an ABC television network documentary series, without first obtaining authorization from patients.” The three entities paid OCR a total of $999,000 to settle potential HIPAA violations.1 Another hospital had settled a similar case with OCR two years earlier.
“Those settlements sent a pretty clear message about OCR’s position on television recording in a clinical setting. Now, five years later, we’re in a world in which we have Zoom and other technologies that were not a part of life in the same way they were then,” Zick says. “It makes sense in a lot of ways to revisit this topic.”
The documentary-style recording of patients that prompted the OCR settlements should be avoided, Zick says. The recording of childbirth requires a careful approach. If it is allowed by the facility and by the physician, parameters should be discussed in advance among the OB/GYN, the rest of the care team, and the parents. The discussion could include limits on when recording may begin and when it must end, whether to show the faces of clinicians, staying out of the way during delivery, and similar concerns.
“All of this should be discussed before [patients] are fully dilated and ready to deliver. I would suggest for an OB/GYN practice that this be part of the intake for a new patient — to inform them whether you allow this or not, and under what conditions,” Zick says. “If you choose not to allow recording, the patient can decide how important it is to have that video and find a physician and a hospital that will accommodate them.”
Patients Benefit from Recording Visits
Patients or physicians recording their interactions also can raise privacy issues. Some clinicians encourage patients to record their visit, or even do it for them, so the patient has a record of the instructions.
According to the results of a 2018 survey, 28% of respondents reported recording clinical visits for the patient’s use. The authors noted patients forget up to 80% of healthcare information after the visit, and recordings can improve patient satisfaction and increase understanding of medical information. Among those who did not record, 50% said they were willing, and 50% said they were not. Clinicians in oncology and physical rehabilitation were more likely to record patient visits. General/family practice physicians were least likely.2
In most cases, both the patient and physician agree to such a recording. But it is possible for either party to record surreptitiously with a smartphone or other device, most likely to protect themselves from a dispute over what occurred. The legality of such recordings hinges on state laws regarding one-party consent or two-party consent, Zick says.
In a state with a one-party law, only one of the participants must consent to recording. In a two-party state, both parties must consent.
“If you are in a two-party state and the patient wants to record the conversation, the patient must ask the doctor and nurse and whoever else is involved. They can say no if they don’t want to be recorded,” Zick says. “End of discussion, no debate.”
New Technology Challenging
Newer technology may require new policies. For instance, Zick notes Zoom conferences can be recorded. It would be unreasonable to prohibit family and friends from making Zoom or similar calls with a patient in the hospital because healthcare providers want to encourage such contact for the patient’s well-being.
Healthcare administrators might not have considered the liability implications of such communications, but they do involve privacy issues. Zick advises risk managers to discuss the potential ramifications of all questionable recording with the insurers and consider their advice when formulating policies and procedures.
It also might be useful to discuss different recording issues with physicians and staff — even conducting a survey to determine how often the issue arises and how they feel about it.
“In a TikTok world, we have to think about these things because they will eventually happen in your organization,” Zick says. “The sense of what is appropriate is evolving.”
Physician Secretly Recorded
Risk managers who ask physicians how they feel about recording might find some hold definitive positions. James Miller, MD, an OB/GYN in Wooster, OH, says the reason healthcare providers do not want video recordings is straightforward.
“If anything goes wrong in a delivery, the video could immediately be used as evidence. As we have seen since JFK and Vietnam, video evidence can be tailored toward any positive or negative outcome desired,” Miller explains. “I have had colleagues use standard techniques during a delivery, such as the physician dropping their body during the delivery of the baby’s shoulders when there is shoulder dystocia, and then the video captured by the patient’s family was used against the physician for ‘overuse of force.’”
Even a normal healthcare scenario can be taken out of context. Miller also has seen situations in which a friend of the patient records a video and posts it online, but the patient did not want his or her healthcare experience to be posted.
Preventing improper recordings is difficult for physicians. “I actually ended up on someone’s YouTube channel and had to be told by another provider because they secretly took a video of the delivery. A lot of times, the families will act like they are taking pictures, but they are actually recording video,” Miller says. “At the end of the day, we want the families to have a great experience, but we have to remember the hospital is a very serious setting. We provide some of the most personal care in the most delicate situations. Patients have to find middle ground on enjoying the moment with the restrictions placed.”
Granny Cam Issue Is Tricky
The use of so-called “granny cams” that are placed in a patient room for remote monitoring pose difficult privacy issues. These cameras are intended to provide family members a way to ensure the good care of the patient, but Zick says that as an attorney, he would advise against allowing them.
“There is no need for a patient to be monitored while in my facility by someone who is not part of our organization,” Zick notes. “I understand the family members are interested, but it strikes me as highly disruptive and invasive in that context. Also, assuming that granny is fully competent to make medical decisions, there are serious privacy issues for the patient.”
Even if the targeted patient gives permission for such monitoring, there could be another patient in the room — and discussions about or with that patient might be captured on the recording. That could be a HIPAA violation.
“I would think about drawing a pretty firm line in which granny cams would be outside of that limit,” Zick advises.
Mysty Blagg, JD, associate with Baker Donelson in Raleigh, NC, agrees the use of granny cams requires careful consideration by risk managers. The pandemic made the option more popular than in previous years and brought it to the attention of people who may not have considered it before.
“Prior to the pandemic, everyone was pretty settled that there were a lot of risks having a granny cam or surveillance camera in patients’ rooms, but when we got on the back end of the COVID-19 pandemic, we started getting calls again,” Blagg says. “We sensed there was a shift in the attitudes regarding granny cams because families were concerned about their loved ones and wanted some way to stay in touch when they couldn’t visit in person.”
Some states enacted laws stating granny cams cannot be prohibited in certain facilities, such as long-term care, Blagg says. Understanding your state law regarding these cameras is the first step in considering any policy.
Generally, administrators responsible for long-term care facilities are skeptical about using granny cams in their facilities because of the potential risks, Blagg says. But many also are open to the idea after seeing the need and more interest during the pandemic.
“There are a lot of benefits with patients feeling more connected to their loved ones, the transparency, and the reassurance that if the facility needs to lock down again in the future, they still have this connection,” Blagg says. “If you are in a state that does not require you to allow this option, you have to weigh out these benefits and risks and determine which course is right for you.”
Create Camera Policy
Once an organization determines its position on granny cams, it must establish a formal policy, Blagg says. The policy should be in the residency agreement for long-term care or admissions forms for other facilities, and it should be discussed verbally with the patient and family members.
“If you are going to allow a granny cam, are you going to allow both audio and video? Audio brings up the question of wiretapping laws and one-party or two-party consent,” Blagg notes. “Are you getting proper consent from a roommate? A big concern with anyone’s consent is whether that person actually can give consent, or if they are not capable of that.”
A granny cam’s connection to the internet can raise a new category of concerns. If it is connected to the facility’s wi-fi, there can be concerns about security with the rest of the network.
Healthcare administrators who allow granny cams in the facility, whether by choice or in compliance with state law, should caution family members about what they will see.
“They really need to have that thoughtful conversation with the family because the family needs to understand their parents are going to have good days and bad days,” Blagg explains. “You’re going to see a window into their life, and they need to be prepared for that.”
REFERENCES
- Department of Health and Human Services Office for Civil Rights. Unauthorized disclosure of patients’ protected health information during ABC Television filming results in multiple HIPAA settlements totaling $999,000. Sept. 20, 2018.
- Barr PJ, Bonasia K, Verma K, et al. Audio-/videorecording clinic visits for patient’s personal use in the United States: Cross-sectional survey. J Med Internet Res 2018;20:e11308.
SOURCES
- Mysty Blagg, JD, Associate, Baker Donelson, Raleigh, NC. Phone: (919) 294-0805. Email: [email protected].
- James Miller, MD, Wooster, OH. Phone: (330) 345-2229.
- Colin J. Zick, JD, Partner, Foley Hoag, Boston. Phone: (617) 832-1275. Email: [email protected].
Video recording has been problematic in healthcare for decades, ever since the home video camera became common. With the proliferation of smartphones and remote video monitoring, hospitals and health systems are facing a new wave of questions and potential risks from video recording in patient care settings.
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