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Tuesday, November 6, 2007

Taking of Videos and Pictures Without Permission

Complaints centered on the taking of videos and pictures in operating rooms and emergency rooms without the prior express permission of the patient.

156 comments:

Joel Sherman said...

This is taken from Dr. Bernstein's modesty blog.


"My own experience is that hospitals use duplicity and guile rather than coercion to ensure that patients sign away their rights. They train receptionists to tell the patient that the document you are to sign "gives us permission to contact your insurance company and gives the physician permission to treat." A cursory reading of the document, especially in teaching hospitals, usually reveals that the patient is signing away one or more rights as well.
The emergency room and emergency vehicle intrusions tend to be different from OR intrusions. Unlike the latter, hospitals cannot obtain patient consent (nor loved ones' consent) to film in emergency situations. Nevertheless, a day doesn't go by that one cannot see patients on "Trauma: Life in the ER" being filmed without their consent while they are stripped naked and catheterized. Group W. Productions, Inc. got into some trouble when Ruth Shulman took exception to being displayed in front of a camera person and ultimately on television without her consent. Personally, I believe the emergency helicopter company should have been sued in addition to or in lieu of the film company. At any rate, the CA Supreme Court decided that Shulman had a reasonable expectation of privacy while in the emergency vehicle. Ironically, the court also decided that what happened to Shulman was newsworthy, so Group Productions did not violate her rights by airing her story without her consent but did violate her right to privacy by filming her in an emergency vehicle without her consent. The case was remanded back to a lower court with these words, "Defendants . . . took calculated advantage of the patient's 'vulnerability and confusion.' Arguably, the last thing an injured accident victim should have to worry about while being pried from her wrecked car is that a television producer may be recording everything she says to medical personnel for the possible edification and entertainment of casual television viewers. [A nurse recorded a conversation with Shulman without her knowledge while she was pinned in an automobile.] For much the same reason, a jury could reasonably regard entering and riding in an ambulance -- whether on the ground or in the air -- with two seriously injured patients [She was with her brother.] to be an egregious intrusion on a place of expected seclusion."

Joel Sherman said...

This topic deserves further discussion. A long comment about this from a poster who works with reality TV is also available on Bernstein's modesty blog (see Links section) from Wednesday, October 31, 2007 11:29:00 PM. Or search on 'DIRTY REALITY.'
What it says is that these shows film anyone they can who looks interesting, they don't ask *prior* permission, and they film continuously. The nudity is generally blurred out for production but the techs see it all and sometimes comment on people they know. Some day these uncensored videos will land on the web. They generally will not broadcast these pictures unless they can get signed permission which they often have to pay for. But if it's juicy enough they may broadcast it anyway without permission with the patient's identity blurred out. HIPAA has no direct prohibition against this kind of abuse. I think it needs to be stopped by further national legislation.
As the poster still works for these shows, he unfortunately has to stay anonymous.

Joel Sherman said...

With a little research it's easy to find documentation of privacy violations with ER shows giving full credence to the stories above. Here's a brief legal review.
And here's a report of a lawsuit. Don't know the result.
Why haven't HIPAA laws been changed to stop these abuses?

Anonymous said...

Joel -- Thanks for the information. I was wondering when such a suit would be filed. I suspect the plaintiffs will have an uphill battle; they'll have to persuade the judge and/or jury not only that their right to privacy was violated but also that their right to privacy trumps the right of the media to report something that is newsworthy. The court in the California Shulman v. Group Productions case concluded that Group Productions had a right to air what it filmed but didn't have the right to film without consent.

Given the Shulman decision, the attorneys may confuse things if their class action mixes those who were filmed and gave consent to broadcast with those who were filmed and did not give consent. The former are on unsettled ground, for one might argue that if they gave consent to broadcast, then one can surmise that they would have also given consent to film. That defense could not be used for the latter. Indeed, one could argue that those who did not consent to broadcast probably would not have given consent to film.

I wonder why the attorneys are not also going after the hospitals who invited in the film crews and participated in the fraudlent misrepresentation. They are the entities which put the patients' bodies on display. They have no first amendment right to do this as far as I know.

I suspect that HIPAA will expand its conceptualization of privacy to include hospitals putting patients on display to satisfy the public's voyeuristic proclivities via the popular media only after there are some successful multi-million dollar lawsuits against the hospitals that do this.

Heres a link to a similar case in which the court confirms the validity of a New Jersey law that shields the media from giving up its tapes during discovery, thus effectively denying the patient plaintiff from evidence that his body was ever put on display in the first place.
www.rcfp.org/news/mag/27-3/con-hospital.html -- Ray

Joel Sherman said...

Interesting reference Ray. I think the case should have centered on the adequacy of the consent (in my lay view). I don't think a general consent is adequate for the most egregious of all privacy intrusions, i.e. live filming of exposed patients by non medical people. How many patients actually realized what they were signing? How can you expect an ill patient in an ER to carefully read through pages of legal language? I don't see how it can be valid.
But HIPAA needs to be changed to specifically require separate permission slips for videography and photography.
That's still my goal.

Joel Sherman said...

The AMA's position is quite clear on filming. Here's what they say:

"E-5.045 Filming Patients in Health Care Settings

The use of any medium to film, videotape, or otherwise record (hereafter film) patient interactions with health care providers requires the utmost respect for the privacy and confidentiality of the patient. The following guidelines are offered to help ensure that the rights of patients are protected when filming occurs. These guidelines specifically address filming with the intent of broadcast for public viewing. As such, they consider physicians’ role in striving to deliver information to the public that is both complete and accurate. They do not address other uses such as filming for medical education (see Opinion 5.046), forensic or diagnostic filming, or the use of security cameras.

(1) Educating the public about the health care system should be encouraged, and filming of patients may be one way to accomplish this. This educational objective can be achieved ethically by filming only patients who can consent.

(2) Filming patients without consent is a violation of the patient’s privacy. Consent is therefore an ethical requirement for both initial filming and subsequent broadcast for public viewing. Because filming cannot benefit a patient medically and may cause harm, filming should be done only if the patient being filmed can explicitly consent. When patients cannot consent, dramatic reenactments utilizing actors should be considered instead of violating patient privacy.

Consent by a surrogate medical decision-maker is not an ethically appropriate substitute for consent by the patient because the role of such surrogates is to make medically necessary decisions, and whether to film for public broadcast is not a medical decision. A possible exception exists when the person in question is permanently or indefinitely incapacitated (e.g. a patient in a persistent vegetative state) or is a minor child, in which case the consent should be obtained from a parent or legal guardian who has the authority to make non-medical decisions.

(a) Patients should have the right to have filming stopped upon request at any time and the film crew removed from the area. Also, persons involved in the direct medical care of the patient who feel that the filming may jeopardize patient care should request that the film crew be removed from the patient care area.

(b) The initial granting of consent does not preclude the patient from withdrawing consent at a later time. After filming has occurred, patients who have been filmed should have the opportunity to rescind their consent up until a reasonable time period before broadcast for public viewing. The consent process should include a full disclosure of whether the tape will be destroyed if consent is rescinded, and the degree to which the patient is allowed to view and edit the final footage before broadcast for public viewing.

(c) Due to the potential conflict of interest, informed consent should be obtained by a disinterested third party, and not a member of the film crew or production team.

(3) Information obtained in the course of filming medical encounters between patients and physicians is confidential. Persons who are not members of the health care team, but who may be present for filming purposes, must demonstrate that they understand the confidential nature of the information and are committed to respecting it. If possible, it is desirable for stationary cameras or health care professionals to perform the filming.

(4) Physicians retain their responsibility to maintain professional standards whenever medical or surgical encounters are filmed for public broadcast. They should be mindful that the educational content of the finished product may become marginalized, potentially distorting the portrayal of the patient-physician encounter and of the medical procedures. Physicians should accurately convey the risks, benefits, and alternatives of treatments to an audience of prospective patients, and should refuse to participate in programs that foster misperceptions or are otherwise misleading.

(5) Independent peer groups, such as medical specialty societies, also may help prevent misleading information from reaching the public by making themselves available to producers to assess the accuracy of program content. They may help dispel misperception by providing educational resources and, if necessary, taking corrective or disciplinary action.

(6) As advocates for their patients, physicians should not allow the care they provide or their advice to patients regarding participation in filming to be influenced by financial gain or promotional benefit to themselves, their patients, or their health care institutions.

(7) If a physician is compensated beyond services to the patient, the amount and conditions of compensation must be disclosed to the patient.

(8) To protect the best interests of patients, physicians should participate in institutional review of requests to film.

(9) Programs regarding various aspects of health care are commonly televised; therefore, physicians should recognize that their patients may have preformed expectations from public broadcasts that may need to be addressed. (I, IV, VII, VIII) Issued December 2001 based on the report "Filming Patients in Health Care Settings," adopted June 2001. Updated June 2006 based on the report "Ethics of Physician Participation in Reality Television for Entertainment," adopted November 2005. "

Surprisingly perhaps not all patients agree that it's a violation of privacy. In one study only 18% of people thought it was a violation of privacy.
Anyway it is clear that this issue has been well defined. The AMA policy is ignored by the hospitals that do this. The only way it will be stopped is for a change in HIPAA laws or indeed, by big successful lawsuits.

Anonymous said...

I read the article and question the findings. The study was conducted by a medical entity, the clips in Trauma Life in the ER run the gambit. I would be curious to see which clips they chose to view. Results can be predetermined by the questions or the way the material is presented. If they used some of the mundane clips vs some of the clips where men where laid out naked for long periods of time the opinions might have been different. I would suggest viewing results of test with some degree of sketicism unless the details of the study are validated. Would anyone believe that only 18% of the population would believe unapproved filming of them or their loved one by a film crew while laying naked and vulenerable in a ER would be acceptable? Especially in a society so focused on individual rights as the US? We have to sign permission slips for about everything....JD

Joel Sherman said...

I haven't read the full article JD, but your skepticism is likely well founded. I too have trouble believing that only 18% of people would object to being filmed naked in an ER without permission. Was this study undertaken with viewers who regularly watched these programs or was it a random sample?
I've tried to find a program like this on my cable so I could get some first hand impressions. But Discovery no longer carries it. There is a Discovery Health Channel that may, but that I don't get. Anyone know any other channels where these shows are broadcast?

Anonymous said...

I could't find the Hemphill, et al. article via the internet, so I ordered it. I'll reserve my final judgement until after I read it. However, like JD, I too am skeptical. I'm always skeptical when researchers use methodological language incorrectly and the English language imprecisely as do Hemphill, et al. If they use the language of science incorrectly, I must wonder about their ability to develop questionnaires and interview schedules and to use statistics. And, if the study is as poor as I think it is, what does this say for the Southern Medical Journal.

I long ago concluded that the Journal of the AMA was as much political as it was scientific and still use Kolansky and Moore's 1970 publication "The Effects of Marijuana on Adolescents and Young Adults" as an example of how not to conduct research. In spite of its serious methodological limitations, this article was used by police departments and politicians for years to defend draconian measures against marijuana users. The Southern Medical Journal may be following in the Journal of the AMA's footsteps. One can only wonder what the political ramifications of the Hemphill article will be. Will there be efforts by political leaders to shield hospitals and media from suit by those who object to their bodies being put on display before film crews and television viewers?

The authors conclude that "Most patients felt that this show was educational and did not invade their privacy." This sentence makes no sense. First, the word "felt" is misused. The patients were not expressing a feeling (an affect) but a belief. Second, why would anyone believe that a show invaded his or her privacy? What the authors mean is that most patients believed that were they filmed in the circumstances depicted in the clips they saw, it would not be an invasion of their privacy. But, so what? Even if this were true, it doesn't follow that their privacy was not invaded. Let's say that 64% of Americans took the following position: If police were to come into my home without a warrant, it would not constitute a privacy intrusion. Based on precedence, I think the Supreme Court would agree that in spite of this almost universal belief, it does not follow that warrentless searches of American citizens' homes is not an unconsitutional intrusion of privacy. -- Ray

Anonymous said...

I read and studied the Hemphill, et al., article some time ago. As I suspected, it was a bust. Even some of the percentages made no sense at all. For example, I looked at "Table 1. Demographics of respondents" to get some idea about the social class of subjects. The reported percent of African Americans (54%), Caucasians (68%), and Other (2%) added up to 124% and the income groups added up to 103%, a figure too large to be accounted for by rounding error as are the 98%, 97%, and 97% figures associated with items listed beneath "If you watch the show "Trauma: Life in the ER." Plus, acceptable response option categories must not only be exhaustive but also mutually exclusive. The latter requirement was not always met. The authors also report that 54% of the subjects received their GED or high school diploma. What about the rest; did they have less than a high school degree or more than a high school degree? As poorly reported as the data are, they seem to suggest that the subjects are weighted heavily on the lower end of the socioeconomic status hierarchy. Given that the lower people's socioeconomic status, the more easily influenced they are by authorities, a survey with an adequate representation of all social classes may result in findings much different from those found by the authors.

The methodological flaws were palpable. There was no effort to establish the reliability -- let alone the validity -- of the instruments used; the items used to measure variables were of dubious utility for drawing conclusions of the sort made by the authors; questioning subjects in emergency departments where the filming took place -- a non-neutral environment -- is suspect; and the inferences/conclusions made by the authors do not follow from the findings and are therefore not warranted. Furthermore, it is obligatory for researchers to point out the flaws in their study and to be cautious in the inferences they make and conclusions they draw, depending on the seriousness of the flaws. The authors did little of that.

All-in-all, however, the report was not as poor as it could have been. I would have awarded it a "B" or possibly an "A" as a first draft by undergraduate students in my research/statistics course. -- Ray

Joel Sherman said...

Well I'm glad you've got that study discredited. Hard to believe that so few people really cared about such blatant exposure.
Maybe someone who has seen these shows can comment. What neighborhoods do these hospitals that do the filming serve? I have trouble believing that the show would last more than one evening in a prosperous suburban hospital. Are they shot in inner city type depressed areas?

Anonymous said...

I watched one that involved a facility in Indianapolis that I have some knowledge of. As you suggest it is in a lower income section of town, predominatly minority in racial make up. The general opinion I have heard and from referrals from local physicians, they never send patients to this paticular facility. I also recall them (Dr's in the show and narrator) referring several of the facilities being in "war zones". I can not imagine anyone I know feeling it was fine for a camera crew to film the whole thing...but then I could be surprised...if it were me, as soon as I recovered enough to be punching buttons I'd be on the phone to my attorney. I wonder if they are offered any kind of compensation for this. JD

Anonymous said...

JD -- In Joel's Nov. 6, 10:30pm post, he references an anonymous reality show employee from Bernstein's blog who answers your question and a lot of other questions to boot. Money is offered to hold outs, he claims. But if they refuse and it is believed that a segment will attract viewers, subjects' faces may simply be blocked out and the segment aired without consent. -- Ray

Anonymous said...

I had two recent media "events that I found interesting. One was the show Trauma in the ER. The episode involved a young man who shot himself in the head over a breakup with his girlfriend. He was brought in unconsious. His clothes were cut off him and he lay naked for most of the segment as multiple medical, police, and other people milled around. He lay like that for an extended period, he eventually died, obsiously he did not give permission to be filmed at the time though his family may have given it later. It does not change the fact that at the time it was taken, he did not agree to it.
The second incident I heard today. I only heard part of it as it was on the radio and I was on the phone. But the jest of it was a medical provider, male, (did not hear if he was a doctor, tech, nurse) took a picture (I think on his cellphone) of a male surgery patient's penis because it had "hot rod" tattoed on it. He was being disciplined and he and the facility were likely being sued by the patient who found out about it.
While one can argue intent differenciates the incidents...I challenge that. Both were done without the patients permission, both were done without benefit to the patient, and both were done for entertainment, not for educating providers(not that that would make it right) , one on network TV, the other for personal entertainment. While one could argue puritent intent, and the provider partcipating vs allowing. I think the similarities make it obvious both are wrong. JD

Anonymous said...

no sooner did I post, than I ran across the incident on Dr. Bernstiens blog, at the bottom of the page go to the link "inside surgery". The sad side note was it was unlikely the patient could recover damages due to the way the law was written. Talk about a travisty of justice. I hope he finds a lawyer who finds a way to make the Dr and the facility pay...uneleivable some of the lawsuits that prevail and this guy may not recover damages...jd

Joel Sherman said...

Thanks for the story JD. Here's the link to today's story.
As I say somewhere, you can't sue under HIPAA, but that doesn't mean a lawyer can't figure out how to sue under Arizona law. My guess is it will happen. The physician will probably be fired so the suit will be against the hospital mainly. Let's try to keep track of the story.
In terms of the ER photo abuses, I think they can only be stopped on a state and federal basis. The AMA has a strong stand against it, but it is not law. I'm sure the HIPAA agency is aware of the complaints, but doesn't seem to be moved to change the regulations. All you can do is write letters to Washington.

Joel Sherman said...

Another interesting link on the Arizona story.
I was wondering how the patient's name got released to the media. That's almost as serious as taking the picture. Both the physician and the leaker should be fired. Mayo clinic will have its hands full with this one.

Joel Sherman said...

Well here's a link to the firing of the doctor involved. Don't think Mayo clinic had much choice as they likely head into a lawsuit. Taking pictures and showing them around the hospital is way beyond behavior that can be just censored. My guess is that Dr Hansen will be out of a job for at least a few years.

Anonymous said...

While I in no way could excuse the behavior, and feel termination was the right course of action, I do understand to some degree how this could happen. We have created an environement where compromising a patients modesty is accepted and often justified. As time goes on we keep pushing the envelope and eventually what was unacceptable, becomes accepted and a norm. As we stretch the boundaries and get used to stepping over the line a little, its just a matter of time until someone steps to far over that line and we have something like this happen and everyone is outraged, as they should be. He is going to pay a tremedous price for his lack of judgement, a lifetimes work has just been severly damaged if not ruined. But consider the all nurse thread where the nurses took turns "checking out a young male patients penis due to its large size". There are alot of similar issues with the transgressions, the basic violation of exposing a patient purely for the entertainment of staff is the same, the real only difference is mode. And yet the most of the nurses did not think the incident should be reported and if it was, most thought the person reporting would bear a greater punishment than the perpetrators. Under this type of environment, it is easy to see how this would happen. Why would we be so surprised? While no where near as grevious, when a war crime is committed amidst the madness of war...is it so hard to understand HOW it happened, while in no way excusing it. Dr. Sherman, what do you think are the odds that no one in the OR knew of the picture being taken. If the patient was out, would not there have been staff present including the anestisiologist? Personally I think many of the things we have discussed here all contributed to this incident. We are professionals, give one that feeling that they are something above the normal...its easy to see how the Dr. got caught up in the whole thing. Now, how different is this really from a film crew being allowed in to film patients without their consent, multiple people will see the footage, I doubt this guys face was in the photo or the Dr. bother sharing his identity...so why are we so outraged by this, but those in power not only condone, but partcipate in allowing filming of patients for TV. Granted, we would expect a higher standard from a Dr. than TV people who are just there for "the story" and could care less about the patient...but the actual act itself...hospital admin. should be terminated for allowing a patients modesty to be compromised as well JD

Joel Sherman said...

JD, I think I approach this from a different perspective. I do not think that privacy and modesty abuses are becoming more common. I think the opposite is true. Decades ago male chauvinism was the norm in society and in medicine. Behavior that is clearly unacceptable today, especially under HIPAA, was common in yesteryear. Of course, there were no digital cameras and cell phones then so this particular offense couldn't have happened. But crude comments, especially in an OR environment were routine then in my limited OR experience. Most surgeons were army trained and quite hard boiled chauvinists. Only Alan Alda on MASH was a sensitive soul. But I agree that it is likely that if this doctor hadn't been showing off his picture to others, it never would have been formally reported, the same as with the nurses’ comments you cite.
I too wonder how he took these pictures. No, someone would not usually be carrying a cell phone into the OR I would think, though practices may vary. Maybe it occurred in a prep room when the patient was mildly sedated before he was brought into the OR. At any rate, I cannot imagine a hospital environment where you could take an open picture of a patient's genitals for private usage without putting yourself at great risk for discipline and censure.

Anonymous said...

While I would tend to agree with you on the rude comments and male chauvenism, I wonder if what was spoken in public mainly by males has been toned down as much to sexual harrassement and hostile work environment suits as concerns for the modesty of patients. The elimination of male orderlies with the percentage of females in nursing I would think has compromised modesty in many cases (assuming most modesty concerns are opposite gender based). I would think in this area, there has been a huge reversal with patients, esp. males not being given an option for same gender care.

But to the subject of this thread, there is a thread on allnurse regarding the Dr. taking pictures. It is interesting to read the range of responses, from it was no big deal and should not be punished (honest one person posted that) to the deserves to be terminated, and everything between. While the vast majority felt the act was a violation, many thought his termination was to strong. I think it is unfortunate his chosen profession was a strip club owner, it detracted from the real issue of what the Dr. did. Personally I don't think Mayo's had a choice, they had to protect thier reputation, and personally, I hope he is reprimanded, required to do further education and penance and given another chance. I am extremely pro patient on the modesty issue, but what the guy did was a really stupid thing and he deserves to be severely punished, but I am not so sure he deserves to be barred from practicing medicine, he is already paying a big price and I would assume he and Mayo's will be paying financially also. I also feel this very thing, or at a minimum a very similar thing is happening with the filming for the Trauma in the ER etc with hospital admin permission. While we must hold providers to a higher standard, they themselves claim such a position, ....the media has a lot to do with the severity of the issue. just my personal opinion.
Dr. Sherman, anyone else see any similarity in allowing film crews in the ER without permission? or am I out there in left field by myself on this one?

Joel Sherman said...

JD (?), yes the chauvinism of the past I agree has mostly disappeared due to concerns over harassment lawsuits rather than modesty. I'm sure crude comments still occur in places, but taking pictures elevates the crudity to a new level. Can you imagine anyone, especially a woman, trusting this particular surgeon again? Be that as it may, I would be in favor of his being put under suspension of duties for 6 months to a year and nothing else especially if this was a first time offense. If it wasn't a first offense, he had no business being a chief resident. I do not believe it warrants a permanent suspension of his medical license. As Mike documents many worse offenses don't result in permanent loss of license. As an aside, if this hadn't been leaked to the press, would the incident been covered up? I don't know, but I'll bet he wouldn't have been fired.
There are contrasts and similarities to ER filming. At least in ER filming, it's not being done because someone wants to get a prurient kick out of it (though I don't know if that applies to TV viewers). And just as importantly I understand that identification is impossible from what they show. The Arizona incident had no redeeming features although it is not clear that the physician identified the patient (though unique scars and tattoos are one means of identity). That might have been done by the press leaker. What both incidents have in common is an incredible disrespect for patients and their privacy. Dr Hansen though has been reprimanded and will suffer for what he did. The ER shows go on, despite grave public ethical concerns with no apparent progress in stopping them.

Joel Sherman said...

As expected, the feds are not interested in pursuing a HIPAA violation against Dr. Hansen. Not likely state charges will be brought either, though it remains possible. None of that stops the patient from suing.

Anonymous said...

Isn't it amazing, I read the other day where some local perv got jail time for taking pictures under dressing room doors at a mall with a camera in a duffle bag. But the Dr. who has damaged not only the patient, but his profession will likely walk. To be honest, I think he should be severly repremanded, suspended for a time, forced to undergo retraining, take additional education, and perform community service perhaps in a free clinic...but I would question whether it make sense to banish him from medicine. He crossed the line, made a really stupid mistake and is paying dearly, and will likely pay for a lifetime, but I would lay money he would probably be the least likely of any provider to repeat such a travisty. But then, every now and then, someone is made an example. Is this transgression worse than the nurses on allnurse taking turns checking out a male patients penis....they covered each other, they didn't get caught, but they did write about it in public and I would bet no one went after them. If this was me (which isn't likely as I have neither a tattoo nor a...) anyway or if it was my child I would be screaming for his head, but I am not sure what the right punishment is....Dr. Sherman, do you think he should be banned from medicine? JD

Joel Sherman said...

No JD, I don't think he should be banned from medicine. As you say he has already suffered for his stupidity and immaturity and is unlikely to repeat the offense. I would consider loss of a medical license more appropriate for those cases where a patient is physically harmed or physically assaulted. Remember this doctor is not really a sex offender. He took pictures of the patient's tattoo because he undoubtedly thought it was funny. And he has probably helped the victim's strip show business to immense free publicity.

I just reviewed the lawsuit mentioned above against Trauma, Life in the ER. To my amazement the company responsible for filming this most reprehensible series is none other than The New York Times Co, who gives us 'all the news that’s fit to print! Search on 'Jack Dosch' to find the section in this legal review. Still can't find out what happened to this lawsuit.

Anonymous said...

I hope everyone enjoyed their holidays. I'll be paying for mine, in a number of ways, for quite awhile.

If a football coach surreptitiously photographed a showering player's tatooed penis and passed it around to his buddies so they could get a good laugh, he could be prosecuted beneath Missouri's invasion of privacy law -- a Class B felony, I believe. Were the physician in question to have engaged in his deviant behavior here in MO and given the law doesn't become impotent by virtue of people having the misfortune of falling ill and entering a healthcare facility, I would think that physician could be held culpable using the same statute. -- Ray

Anonymous said...

I just read a case in the newspaper where a guy got 4 months in jail for taking a picture with his cell phone up a sales clerks dress. It will be interesting to see what comes from this case. While one could argue the medical setting should lessen the severity and crimminal charges would not be appropriate...one might also argue that the fact that we place such trust in providers would dicate a higher expectation therefore the transgression is worse and arguably the penalty should be more severe. I find myself unexplicably feeling crimminal charges are not appropriate for this offense while at the same time I feel the fact that it was a trusted provider makes it worse....not sure why that is. I feel he should be severely sanctioned by the medical community and he and the facility subject to financial penalties to the victim. I don't really understand why I feel that way...anyone else feel that way? I think the perv with the cell camera got what he deserved, but don't feel it would be appropriate for the Dr.??????????? JD

Anonymous said...

Personally, I believe there should be three criteria for determining punitiveness of punishment (or level of accountability) for a criminal act; viz., harm, intent, and degree of culpability (whether an act was done purposely, knowingly, recklessly, or negligently). Both acts you describe, JD, appear to have been done purposely. The intent may have been different. Although there probably was something sexual about what the physician did (After all, he probably would not have photographed the tatoo were it on an appendage other than a sexual organ.), there may be no evidence of a sexual motive whereas a sexual motive may have been proved in the case of the man who received 4 months. One could argue that a sexual motive for crime is more reprehensible than other motives such as getting a good laugh with one's buddies (although both may be conceived as selfish acts -- one to satisfy purient proclivities and the other to highten one's prestige in the group). I think an argument could be made that the physician's deviant behavior was more harmful than then action of the man who received 4 monthts.

Of course, in reality, level of accountability is frequently, if not usually, determined by extralegal factors including social statuses of the offender and victim. -- Ray

Joel Sherman said...

Finally come across JCAHO standards for filming:

Standard RI.2.50

Consent is obtained for recording or filming made for purposes other than the identification, diagnosis, or treatment of the patients.

Rationale for RI.2.50

Recording or filming of care, treatment, and services provided to patients can be useful for many purposes, but such recording or filming is likely to compromise the patient's privacy and confidentiality.

Therefore, the hospital should obtain consent from the patient for recording or filming.

Elements of Performance for RI.2.50

1. When recording or filming are to be used only for internal organizational purposes (for example, performance improvement and education), there is documentation of consent, which may be obtained as part of general consent to treatment or another form, if a statement is included in the form regarding the use of recordings or filming for such internal purposes.

2. When recording or films are made for external purposes that will be heard or seen by the public (for example, commercial filming, television programs, marketing), there is documentation of a specific, separate consent that includes the circumstances of the use of the recording or film.

3. Except for the circumstances set forth in EP 4 (below), there is documentation of consent before recording or filming.

4. The following occurs in situations in which the patient is unable to give informed consent before recording or filming:
The recording or filming may occur before consent, provided it is within the established policy of the hospital and the policy is established through an appropriate ethical mechanism (for example, an ethics committee) that includes community input. The recording or film remains in the hospital's possession and is not used for any purpose until and unless consent is obtained. If consent for use cannot subsequently be obtained, the recording or film is either destroyed or the nonconsenting patient must be removed from the recording or film.

5. Patients have the right to request cessation of recording or filming.

6. Patients have the right to rescind consent for use up until a reasonable time before the recording or film is used.

7. Anyone who engages in recording or filming (who is not already bound by the hospital's confidentiality policy) signs a confidentiality statement to protect the patient's identity and confidential information.


IMO these guidelines are pretty reasonable except that I would disallow any filming for commercial or similar purposes if informed consent cannot be obtained prior to filming. As it stands I think that many of the hospitals that do ER filming are in violation of JCAHO standards and complaints to JCAHO might be fruitful.

Joel Sherman said...

A thought for the day.
Britney Spears was photographed being put on a stretcher and taken to the hospital apparently by reporters hidden on her property. The press is not a covered entity under HIPAA. Maybe it should be, although some constitutional issues are involved. I'm not sure I see a clear difference between hospitals releasing information without permission and the press doing the same thing. Why aren't they held to the same standard of consent? Does our right to know really extend to Britney's sad medical history.
Even Dr. Phil, who was asked to see her by her family commented publicly about her condition, also a violation.
I'd be interested in others thoughts on privacy and the press, though maybe it's a separate topic.

Anonymous said...

Joel -- My understanding is that the press has a First Amendment right to publish what is newsworthy. It doesn't have a right to tresspass and it doesn't have a right to intrude on people's privacy in places where there is a reasonable expectation of privacy (e.g., public bathrooms, emergency vehicles, hospital rooms, etc.). In Shulman v. Group Productions, the California Supreme Court concluded that Group Productions did not have a First Amendment right to film Shulman in an emergency vehicle without her prior consent but had the right to publish what it filmed without prior consent because what it filmed was newsworthy. -- Ray

how husbands feel said...

Folks, please read this news article and tell me what you think. Should this doctor be allowed to show a training film in his court defence even though the lady in the film has not given him permission?

http://seattlepi.nwsource.com/local/346510_doctorrape09.html

Joel Sherman said...

Well, this is purely a legal matter, that's why it's in court. Insufficient details are available from this brief article to really judge. I presume that the women gave permission to the hospital who took the pictures not to the accused physician. The judge will likely have to make a decision whether these pictures are vital to the physician's defense. If so they will likely be permitted. Confidentiality rules are always held to be secondary in criminal cases. It happens all the time. If a court wants patient records to investigate a potential crime, the doctor can protest, but he will usually lose.
If the women's faces aren't identifiable, HIPAA regulations aren't being violated in any event. Shocking pictures which expose people are shown in court rooms all the time. They are not necessarily made public I believe, though it may depend on state laws.

Joel Sherman said...

On the exact same legal question, here's a case from Maryland which reviews the considerations involved when a criminal or regulatory investigation smacks into patient confidentiality. The physician won this one, but each case is decided individually based on the actual need to know.

jw said...

We experienced this situation. The consent forms patients are asked and required to sign have language in small print. After a surgical procedure that we were extremely displeased with both the process and the outcome, we requested and obtained the medical file. It was then we read the fine print on one consent form. After the patient was in the OR holding area, in bed, IV running, vital signs taken, ready for surgery, a nurse approached and ask the patient to sign a consent form that was for blood transfusion if necessary. The patient of course at this time had no corrective lenses and they signed the form. It was only after obtaining the medical record and entire file that on this form the patient also signed consent to having others stand in during their stay in the OR and allowed photos and video taping while in the OR suite. We were appalled and furious. This is basically a standard form used by many surgery centers. Upon complaining to multiple agencies, JCAHO, Dept of Health, Board of Nursing, Medical Board, on and on, nothing of any satisfactory resolve was done. None of these agencies do anything. All you get as a dissatisfified patient is MAYBE a "gee, so sorry you had a bad experience." Doctors are told by their legal counsel never to appologize. The doctors' didn't even give us the time of day. Only the administrator of the surgery center responded. Our advice is to get all consent forms a week or so in advance that you will be asked to sign and read them carefully. Cross out anything you don't want to consent to and fully discuss it with the surgeon. The best thing would be to also have an advocate stand in during the entire time. I don't know the success of being able to do that in today's world, but my contention is there are many people (some with no training of the medical world) that are allowed to stand in. Manufacturers' reps, equipment reps, students, etc. So I don't how they can refuse an adovcate.

Joel Sherman said...

JW,
Your experience is what this thread is about. However you did the right thing by complaining even if you got no direct satisfaction from it. JCAHO and other agencies don't directly regulate hospitals or discipline them. But the agencies note the complaints and may keep them in mind on the next inspection. Even more importantly, no hospital likes to get complaints and they take them seriously as a general rule. It doesn't take all that many complaints to get them to seriously review their procedures. So your complaints may have done more good than you realize.

Joel Sherman said...

Here's an excellent lengthy article from JAMA giving both pros and cons for the filming of patients. It specifically discusses commercial filming in ERs from a standpoint of privacy.

Anonymous said...

There were several things that struck me as I read this. 1st the recognition of impaired ability to give "informed consent" which extended beyond the physical abilty to the emotional state. And 2nd, and more serious, when they went to the pro's a vast majority were for the benefit of others, not the patient. While there were some arguments made that there was benefit to the patient, (more attention or focus by caregivers due to cameras, longterm learning by caregivers etc) I thought they were pretty weak and reaching. When we looked at the Con's, the vast majority were patient related. It would seem in my opinion that the benefits are largely 3rd party and the detriments are mainly patient related. A person does not go into an ER or OR for the benefit of others, they go in becasue THEY need help. They are not there to educate the carefivers nor entertain or inform the public. While DHC may have some benefit to its viewers, lets not forget its main purpose....to make money, it is hardly a non-profit organization.
I really must hang out with a different crowd from the midwest here, according to the article very few people felt intruded upon by the filming of their procedures without them knowing it was happening....I know the vast majority of people I know would have issue with it. Whats the old say, numbers don't lie but liers.....interesting article, it didn't change how I feel about it, but I did think the JACHO and AMA position on it were all and all more reasonable than I antcipated. JD

Joel Sherman said...

JD,
Exactly, the benefits if any accrued to society as a whole, the disadvantages all accrued to the individual patient. I certainly know what I think is more important. That's the reason for this blog.
I too was startled by the statistics quoted as to how many patients objected. Unfortunately the article is no longer available online. I may be able to find it. It's not the same one we commented on before above. But the methodology is also restrained by the fact that they only queried those patients who realized that they were being filmed. And once again, they say it was a county hospital which means it was a population which was more likely to be interested in being paid for their pictures. If it was inner city black, my own personal experience is that blacks have fewer concerns about modesty than the average white person, but I've seen no statistics to back up that suggestion, though others have made it as well.

Joel Sherman said...

Here's a topic I haven't given much thought to, that is the use of cell phone pictures in hospitals, not like the Mayo case above, but to identify patients who are waiting for care, especially in more sensitive areas such as psychiatric clinics or HIV clinics.
Hard to ban and regulate all cell phones though. We have entered a world where privacy concerns get harder and harder to regulate.

Anonymous said...

Joel: Thanks for the JAMA article. I used to have a friend who would say, "I wish I said that," when someone said something profound. In the case of the article, "I wish I had written that."

I just skimmed the article and will read it in detail later. It appears to be an excellent coverage of the issue. Every pertinent legal case appears to be cited.

To me, one of the more interesting cases cited is Wilson v. Lane. This was a U.S. Supreme Court case; a police department was sued for inviting a film crew into a house, without the consent of the residents, while the police were searching for a suspect. The police had a warrant, but went to the suspect's parent's home instead of the suspect's home. What was filmed was never aired, but the parents were outraged that the film crew was there anyway and sued. The Supreme Court's decision was unanimous; the police had violated the 4th Amendment by inviting in the film crew. As to damages, however, the Court, in effect, concluded that the police were too dumb to know that they were violating the 4th amendment so the plaintiff could not collect damages. There was one dissent regarding the latter -- Stevens, I think -- who asserted that it was hard for him to reconcile his belief that police tended to be intelligent enough to know the difference between right and wrong so could not bring himself to confess that they had not intruded with deliberate disregard for the plaintiff's 4th Amendment right to privacy.

What's bothersome to me is that in other cases, such as Schulman v. Group Productions, only the media are sued; healthcare entities responsible for inviting in the media are not held accountable. This means the court must weigh the Constitutional right of the media under the 1st Amendment against the Constitutional right of patients under the 4th Amendment. As far as I know, there's no Constitutional amendment that protects healthcare entities from suit for inviting film crews in to film patients without their consent. After all, one could argue that were it not for healthcare providers inviting the media in to film, then the filming could not take place. Consequently, the healthcare providers carry primary responsibility for the intrusions.

What is especially bothersome to me, is that I can turn on the television just about every night and watch healthcare providers and police violate the law and do so with apparent impunity.

So far, I've not read anyone's using the concept "exploitation." I propose that exploitation occurs when people use other people (or elicit a service from other people) to benefit themselves (or others) without the consent of and offer of remuneration to those persons being used. Out of curiosity, I asked four of my colleagues -- philosophy, anthropology, geography, and sociology -- what this definition was a definition of. Each one of them responded, "exploitation." When I asked, "If what is defined here was done systematically over a long period of time in an organization, what would that be?" three of them responded, "slavery."

Well the latter may be a little hyperbole, but the former is not. Whenever film crews and healthcare students use patients to benefit themselves without the consent and offer of remuneration to the patient, they are engaging in the exploitation of patients.

However, I have spoken to healthcare providers who think it is obligatory for patients to submit to the scrutiny and minstration of students and the public because it serves the common good. The logical extension of this assertion makes me shudder. -- Ray

Joel Sherman said...

Just for contrast, here's a very brief account of a doctor in India given a life sentence for filming nude patients and posting it on the net. Hard to tell if there's really more to the story.

Joel Sherman said...

Here's another story of a chiropractor convicted under criminal codes of filming patients without their consent in Louisville. If this is criminal, why is not ER taping also criminal? I don't understand the difference here.

Anonymous said...

You might look into the case of gynecologist Peter Lafuria, who took thousands of pictures of his patients during exams.

Another one to look into would be Dr. WILSON LOCKE LYNCH, JR., who used a hidden camera is his exam room to produce child pornography.

How about Dr. Owen Murphy Panner Jr., who used a hidden camera to photograph pelvic exams he performed on teenage girls.

Then there's dentist Stephen Craig Durbin who used a hidden camera to videotape his female employees as they changed into their scrubs. He mandated they change at the office.

In the UK, Dr. Syed Amjad Husain used a camera hidden in a box of tissues in an exam room.

Dr. Huong T. Luu used a camera hidden in his coat pocket to take photographs of women as he performed pelvic exams on them.

Dr. Scott Toshihiko Takasugi was accused of takibg photos of female patients without their knowledge.

You can read about these creeps in Mike's database. He gives the link elsewhere in this blog.

CLW

Joel Sherman said...

There's no lack of cases CLW. Recently in New England many thousands of nude photos of children were found hidden in the basement of a deceased endocrinologist, George Reardon, who had been working at a Hartford hospital, St. Francis. The hospital is now being sued by many former patients who claimed they were molested. The cases will undoubtedly go on for years.
Too bad the doctor died 10 years ago and can't be punished, but society is certainly better off without him.

Joel Sherman said...

Here's the case of a woman suing a plastic surgeon for posting her nude pictures which were full frontal taken before and after skin surgery to remove excess fat. Apparently she OK'd the photos being taken but not the publication. Her face was not included in the pictures so I'm not sure how this will play out legally, but I would think she has a good case.

Joel Sherman said...

Here's an interesting article on the other side of the story, videos taken with permission for a whole range of educational reasons, often with the patient's express encouragement.
As in all things in medicine, there are multiple takes on every issue.

Joel Sherman said...

Here's a story of an egregious abuse from the Philippines where surgeons and nurses permitted the filming of the extraction of a perfume bottle from the rectum of a patient. This video was posted on YouTube, showing them laughing during the procedure.
One can only hope it couldn't happen in the US.

Joel Sherman said...

Here's a lengthy and detailed discussion of the practice of ER filming without prior consent from a 2001 AMA position paper. I find it quite good. They clearly oppose any filming that takes place without prior consent.

Joel Sherman said...

Here's an article on the subject from an emergency medical news journal.
Note that the article clear states that not only is privacy violated, but the care the patient receives is different. The practice of medicine is disrupted. Sometimes the patient might get more medical attention than normal, but it is probably disadvantageous in the majority of instances.

Joel Sherman said...

A post on allnurses claims that hospitals with OR-TV for OR filming, uses a network where the cameras are never off and can be monitored by distant non medical technicians at all times. I fear it sounds believable. Few details or references are given unfortunately.

From allnurses see post from Feb 04, 2008, 01:18 PM by dutch.

Anonymous said...

I read the allnurse post, 1st thought is I hope I never meet the WitchyRN nurse, yikes, what a B, and it appears from her sign on she knows it.

I had surgery, elective, the nurse gave me the consent when I was on the gurney IV;s in, not much you can do at that time...she said they almost never film its just a formality...I believed her, the whole TV thing is another issue all together, I wonder how many people were "exposed" to this and had no idea, all they knew was they signed the consent. I think things like this unfortunately undermine the trust between providers and patients and a few bad apples ruin it for the industry as a whole, the whole intentional failure to full disclosure is just sleazy in an industry that needs complete trust. The little gain is offset by the loss of trust and respect. Great feedback on getting the consent forms early etc, to bad many people don't know about it

Joel Sherman said...

For contrast, here's an article referencing TV in the UK with videos taken and broadcast with permission.
I have no problem with these shows but I find it kind of amusing to contrast American and British customs. I don't expect to see shows like this on American TV anytime soon. But who knows?

Anonymous said...

There is actually a link on the voy blog to exerts from the show.......never going to see that on network....never going to see me on something like that....but as long as everyone is fine with it and informed. more power to them.

Anonymous said...

THIS JUST IN FROM THE UK:

A 45 year old Registered Nurse from Chadwell Heath, Romford has received a two year Caution by the Nursing and Midwifery Council (NMC) at a hearing held in London on Monday, 28 April 2008.

Sherril Gurley was employed as a Staff Nurse at Basildon University Hospital in 2006 when she used her mobile phone to photograph a female patient as they sat on the toilet and as they left the bathroom.

On a separate occasion Ms Gurley made inappropriate comments to a colleague about the size of a patient's genitals and showed a photograph of male genitals to the colleague. Although her actions caused no direct or indirect harm to either patient, the independent panel of the Conduct and Competence Committee panel deemed that Ms Gurley's behaviour fell short of what is expected of a Registered Nurse.

Commenting on the panel's decision to issue Ms Gurley with a two year Caution, NMC spokesperson Kristy Hempel said:

"Sherril Gurley's actions failed to protect the dignity of vulnerable patients in her care. Displaying a lack of regard for the ethics required of a Registered Nurse, she also failed to uphold the reputation of her profession and breached the Code of Professional Conduct. While the circumstances highlighted Ms Gurley's lack of insight, the panel took into account testimonials that spoke highly of her abilities and conduct since the events and an expression of regret and apology. The independent panel decided that given that the incidents were isolated and her good work history, a two year Caution was the appropriate sanction."

SHE SHOULD HAVE GOTTEN 2 YEARS
SUSPENSION! WHAT WOULD HAVE
HAPPENED TO A MALE?
--CHUCK McP

Joel Sherman said...

Thanks for the story. Here's the reference.
Don't really know if the penalty would have been very different if it was a man (see the Mayo story above) or in this country. But the article doesn't say if the nurse lost her job or not. That surely would happen in this country, though someone else would eventually hire her.

Anonymous said...

Dr. Sherman:

Here are a couple of important URLs
regarding medical situated reality-TV
shows that have grossly infringed on
privacy or made false promises to
trusting patients.

Tasteless manipulation of patient
feelings/understandings in the
pursuit of audience ratings thru
sensationalism is the hallmark of
many of these shows.

In these two cases, it is even the
same production company/network sited
in both incidents.

Very detailed and well worth reading.
They clearly show the patient as just a
pawn or knife fodder in the production's interest.


http://fl1.findlaw.com/news.findlaw.com/hdocs/docs/realitytv/williamsabc905cmp.pdf

http://www.houstonpress.com/2002-09-05/
news/reality-tv-bites/full

Jesse K.

Joel Sherman said...

Thanks for those very interesting references Jesse. I'm unfamiliar with both and it will take me awhile to go through them. Do you know if there was any final outcome in these cases? Did they both lead to lawsuits? I certainly would think suits would be justified based on the information given.

Joel Sherman said...

Few more comments on these 2 cases. The Extreme Makeover case was apparently settled out of court for an undisclosed amount. The case is all about the devastating but difficult to predict outcome, the woman committed suicide. The filming company, New Screen Concepts, did get full consent, so that is not an issue, though it was certainly a consent that no one should ever sign, giving all rights to the company and none to the participants. Apparently the company told them that no lawyer would ever approve of the contract. So they were forewarned. If it were not for the death, making a court case chancy for the company, they certainly would have gotten nothing. The case reminds me of a similar one from a Chicago talk show some years ago (I can't recall the names) where they promised a guy that an admirer of his would appear to profess a secret love. Turned out the secret admirer was another man. The contestant was so humiliated that he shot and killed his admirer. The show was sued by the murdered man's family and didn't last long after that. Anyone who appears on these shows should be well aware that they thrive on humiliation. One should only agree to appear if you're a masochist.
I have greater interest in the second case out of Houston. Here as in ER filming the family was not given a clear idea what they were signing and what was involved. Under conditions of extreme duress they were blatantly taken advantage of. According to guidelines I've reprinted above, they could have revoked the permission for filming at any time (and should have), but they had no idea what they were getting themselves into until it was too late. Apparently no decision re filing a lawsuit has been made from this case yet. If it was me, I would surely look into suing not only the production company but the hospital and physician as well. There is no excuse for obtaining anything less than fully informed consent here. The cursory consent they gave should be invalid. It would have taken at least an hour to explain to the parents what they may be getting themselves into.

Joel Sherman said...

Here are BBC guidelines for filming of patients in the UK. They're not very different from what you see recommended for this country.
They still reserve the 'right' to begin filming unconscious patients whose consent is impossible to obtain, though they say they won't broadcast it without permission. They don't say much about getting the consent at times when the patient or families are not under duress and emotional strain.
The bottom line is the same. The patient derives no benefit from this filming. I don't believe that there is any significant value to the public from filming these scenes that can't be obtained from fully informed and conscious patients. They also don't mention any compensation for the patients.

Joel Sherman said...

Here's a different twist. To protect himself, a doctor is filming patient encounters in a clinic instead of using a chaperone. Article doesn't say whether patients are informed of this as they certainly ought to be. This is in the UK no less where this kind of paranoia is much less prevalent than the US.

"My Client runs a clinic and is using CCTV instead of a chaperone. He is overly concerned about the possibility of an accusation being brought against him by a client i.e. molestation or similar accusation of which could happen any time even according to him up to or even beyond 3 years."

Here's the link. See second post.

Joel Sherman said...

Here's an AMA position paper from 2003 which refers to filming of patients for educational purposes only. Commercial use is not considered.
The article is clear that informed consent must be obtained and that consent is voluntary.
This certainly contradicts the position of some hospitals that the pre-op consent form which includes filming as a brief section cannot be changed. I would think that any hospital that uses such a form which can't be crossed out could be the subject of a complaint to JCAHO.

Joel Sherman said...

Here's a twist. A nurse may be fired for taking secret videos in a hospital without permission.
But she was doing an expose’ to reveal horrendous conditions in this UK hospital.
She should get a medal instead of being fired. But whistleblowers are never appreciated by their employers.

Joel Sherman said...

Hopefully many saw the start of new ABC series on Johns Hopkins hospital where they filmed and interviewed real patients and doctors. They included scenes of a female urologist examining a man though nothing x-rated was shown.
After criticism about their first series 8 years ago they were apparently careful to get full prior informed consent and questionable areas where this could not be guaranteed such as psychiatry were not filmed.
Still and all, I don't understand the point of the series. The physicians are obviously playing up to the cameras. No one should mistake this for real life. Did anyone find it truly educational or was it just another pseudo-reality docudrama and a commercial for Johns Hopkins?
Any other opinions?

Anonymous said...

Dr. Sherman
I have to agree with your assessment. It was entertaining to a degree, but it was obvious the intent was entertainment (ratings) rather than education. The Dr. having marital troubles, etc. all have Hollywood written all over them. Then there is the female Uroligist, I doubt that was random or by chance. I don't think the use of an attractive young female to examine male genitiles was luck of the draw. I also think it is more acceptable to use that scenerio on TV then a male gyn. While there have been purely Hollywood productions (Dr. T & his women or something like that with Richard Gere), I think joking or humor about male nudity/procedures is more acceptable. I was watching a local news report and the female TV anchor started laughing about a segment on Prostrate exams, the male looked at her like she had 3 eyes and says thats not funny...she just smirks and giggles. Can you imagine the back lash if a male had laughed at a segment on breast cancer. When the camera starts people change. One has to wonder why a patient would want to be on TV getting a prostrate exam or having a vas reversal.

Joel Sherman said...

Yes, there is absolutely nothing unusual about a female provider doing a rectal exam on a man. It happens likely thousands of time every day. Most aren't done by female urologists, but so what? The only possible reason to show it is to increase salacious interest in the series.
I certainly have greatly reduced respect for any physician who would expose their patients to this kind of voyeurism. This series should lower the esteem that Johns Hopkins is held in the medical community.

Joel Sherman said...

A follow up on the Mayo Clinic doctor in Phoenix who took and distributed pictures of a patient's penis. Dr Adam Hansen will face no prosecution under HIPAA. This is in line with the department's almost non existent enforcement of its policies. There have been only 4 criminal prosecutions up to now among thousands of complaints. Recent criminal complaints listed under the HIPAA thread involved employees who used information for profit. It's a rational distinction. Dr Hansen has indeed suffered greatly for his impropriety and stupidity, losing his position and likely several years from his career. There still may be an Arizona board penalty against him.

Ray B. said...

The BBC guidelines regarding filming patients who are not capable of giving permission (e.g., because they are unconscious) is inconsistent with the decision of the CA Supreme Court in Ruth Shulman v. Group Productions (which I referred to earlier). Shulman was filmed without her consent while in an emergency helicopter. What was filmed was later aired, without her consent. The court concluded that there is a reasonable expectation of privacy in emergency vehicles; ergo, Shulman’s right to privacy was violated by filming her in the emergency helicopter. However, once filmed, Group Productions had a right under the First Amendment to broadcast what was filmed because it was news worthy.

Johns Hopkins and ABC ignored this decision while filming the first Hopkins 24/7. Following its broadcast, I communicated with both the CEO (Edward Miller, M.D.) and president (Ronald Peterson) of Johns Hopkins both whom asserted, on the one hand, “First and foremost, you should know that even though we had no right of review of what ABC taped, we and ABC were exquisitely sensitive to issues related to patient privacy and confidentiality. As you watch the programs, keep in mind that we insisted upon and secured absolute protection of our patients’ privacy at all time. We required ABC to obtain written consent from any patient appearing in the broadcast.” On the other hand, they also informed the reader that ABC film crews were “allowed . . . a virtually unfettered look . . . into the most private corners of the medical world.”

Only someone who lived in Pollyannaland would believe that a film crew interested in ratings could be given “unfettered” access to “the most private corners” of a hospital while, at the same time, being “exquisitely sensitive” to patient privacy. Indeed, both Miller and Peterson admitted that emergency room patients who could not give consent were filmed anyway. If the report by Jeffrey Neira (“Hopkins Reveals Tough Life Greg’s Anatomy Glosses Over”) – who writes that “nothing and nowhere else [other than the psychiatric ward] was off limits – is to be believed, Johns Hopkins has done it again.

The AMA apparently takes the same position as Miller and Peterson when its reference committee writes, “If it is not possible to obtain consent from the patient before filming, then consent must be obtained before using the film for educational purposes.”* It is clear to me that the powers that be at Johns Hopkins and in the AMA speak, as the Apache used to say, with forks in their tongues

ABC’s Jeffrey Neira confesses that Hopkins 24/7 “lionized the medical profession”** and wonders, in light of this lionization, why other hospitals are not “striving for similar media attention.” And, he obliquely criticizes that part of ‘“the medical establishment [that] closed ranks’ against such projects when he writes, “Fortunately, Johns Hopkins has stood against such impediments.” At the risk of being ad hominem, I don’t know if Neira is being purposefully offensive or stupid, but I don’t attribute to malice what can be explained by stupidity, so I’ll give him the benefit of the doubt. I would suggest that it is precisely because a major intent of the documentary was to glorify the medical profession that some in the medical establishment “closed ranks.” In fact, I say kudos to that part of the medical establishment that had the integrity to close ranks against Hopkins’ self-serving display.
* I understand that physicians are not infrequently put into situations whereby they must decide what they believe is best for a patient because the patient is incapable of doing so and no family is present to make the decision for him/her. In this case, the AMA is clearly sanctioning an action that is not in the best interest of the patient, but may be of interest to others. I can hardly think of a better example of exploitation. Furthermore, the AMA’s policy assumes that those who need to be educated will go without pivotal information if physicians are not given the authority to order the filming of patients who are not competent to give their consent. The evidence is inconsistent with this assumption and the AMA should know it (see, f.i., Ubel, et al. 2003. “Don’t Ask, Don’t Tell . . .” American Journal of Obstetrics and Gynecology. 188. 575.) .

** In the first Hopkins 24/7 both the hospital and physicians were glorified. Although nurses are the backbone of hospital care (while physicians are hospital guests), absolutely no attention was given to the importance of the nurse’s role. Indeed, the only nurse depicted in length on the documentary was featured in her role of spouse to one of the patients. -- Ray B.

Joel Sherman said...

Welcome back, Ray.
I actually sent off emails to Johns Hopkins and to the urologist. I of course received no reply, but I didn't expect to and wasn't even sure they got to the intended people.
Didn't see the original series, but I haven't changed my mind on the present series. It is of no educational value and just done to glorify Hopkins. They are real doctors, but that's all. It's better than the reality shows, but that’s not saying much. As far as I know the show has not been criticized by the medical establishment. AMA News had a basically favorable review. Everyone mentions the urology segment as being notable. But clearly it was just done for prurient interest; it reminded me of a striptease where the woman is behind a shear curtain throwing her clothes over the top. They could have made any point they wanted to without showing the guy with his pants down.

Anonymous said...

I could not agree more, now compare that to another new series of a similar nature I just saw advertised. They had a gyn in the group....female of course. I think they find a female examining a male like this titalating, shocking, etc where as having a male examine a female patient as being sexual....improper, etc. Thanks for writing, we all know hollywood has no morals or boundaries...apparently John Hopkins isn't much better and unfortunately, it reflects poorly on the whole medical community JD

Joel Sherman said...

A description of the new Sloan Kettering ICU includes this statement.

Rooms are equipped with web cameras that allow staff to monitor patients from locations outside the ICU

I'm not sure how to respond to that. Certainly it has benefits, but are patients and their families informed ahead of time?

Joel Sherman said...

There's no end to variations on this theme. Here's an account of a Swedish nurse who posted pictures of neurosurgery on her Facebook page. The pics have been removed and they were not salacious, but it's a grossly inappropriate use of medical pictures.

Anonymous said...

Dr Adam Hansen was issued a letter
of reprimand by the arizona board
of medical examiners for taking the
famous penis picture.

Anonymous said...

The Johns Hopkins series on tv lessened my respect for them.
They had, in my mind anyway, had a great reputation. The series cheapened them to being a live version of medical drama shows.
the doctors became actors.
I had concerns about such things as being filmed by tv if I were in the ER and unconcious...but to learn of all of the other places and circumstances photos/movies are made and done so with not bothering to ask me First...does nothing to instill faith in the medical institutions..or medical practitioners...Especially if I am unconcious and supposed to be in good and caring hands...
leemacaz

Anonymous said...

Wouldn't unauthorised pictures, videos, etc. violate patient-doctor confidentiality?
leemac

Joel Sherman said...

Of course, leemac, but only if they were taken without adequate permission being given. That's the essence of this discussion: what is needed for prior informed consent to take pictures. Are general consents adequate, and in the ER abuses, consent obtained after the fact?

Joel Sherman said...

Here's an article detailing how two New Mexico hospital employees were fired for taking pictures of patients on their cell phones and posting them on their networking sites. Others were disciplined for not reporting the incidents. Of note is that the patients could not be identified from the pictures. I believe institutions are getting the message that this is prohibited behavior. There would be no ER reality shows if these rules were followed.

Joel Sherman said...

Here's a good summary of the problems with cell phones in hospitals and their potential for abuse.
The case above from New Mexico is a prototype of this abuse.

Joel Sherman said...

Here's the case of a plastic surgeon bared from selling Anna Nicole's Smith breast augmentation procedure. How sleazy can you get.
In my opinion, selling patient films for profit should be grounds for losing your license.

Joel Sherman said...

Here's the dark side of the TV plastic surgery shows. I personally don't think that there's an upside, but that's just my opinion.
I should point out that this article is somewhat off topic as all this filming was definitely done with permission.

Anonymous said...

I don't believe consent for videos or pictures should come from anyone other than the patient. If the patient can't give consent for photos and videos to be taken for any myriad of reasons the opportunity should cease to exist in these circumstances. This ensures the patient's privacy is protected at all costs.

Joel Sherman said...

Here's a recent review of the subject from the British Medical Journal with good discussion and guidelines.

Joel Sherman said...

Not enough details are given here to be sure what was happening but the exchange is still interesting.
It concerns a patient filmed in a treatment room who expressly said he didn't want them there. They left and came back anyway.
The post is current so maybe there will be some further follow up.

Joel Sherman said...

The story of a lawsuit being filed by a Utah woman whose before and after plastic surgery pictures were shown on a TV show she claims without full permission, i.e. she didn't understand exactly what they were going to show.
She probably has a good case as she claims she lost business because of the exposure.

Joel Sherman said...

Here's an interesting topic from a commercial legal website. Apparently some states are looking into allowing or even mandating cameras be installed in nursing homes to prevent abuse. The laws would make it legal to do this without permission. This could include monitoring of washrooms and showers.
Not sure how I feel about this. It would certainly have prevented the incredible abuse in Minnesota by teen aged CNAs. On the other hand, it's probably only potentially useful for demented patients who can't protect themselves at all and infirm but alert patients have limited need.
Any other thoughts?

Joel Sherman said...

Here's a case from Wisconsin which is somewhat reminiscent of what happened in the Philippines where OR staff took pictures of a guy who had to have something removed from his rectum.
The details in this article aren't too clear but these nurses were fired for apparently taking pictures of a guy who had a sex device stuck in his rectum and then posted the pics on FaceBook.

Joel Sherman said...

Here's a follow up on the above story from Wisconsin. The nurses took pictures of the guys x-ray but included no identifying names on the picture. It's still unclear whether they put in on Facebook or not but they related the incident on Facebook. They are not facing criminal charges but could face federal fines for HIPAA violations. I doubt that will happen. I personally believe that being fired is enough punishment, especially given that the patient's name was never revealed. Unfortunately it's not much different than the gossip that frequently occurs in any nurse's lounge.

TT said...

Joel,

For people that are so quick to take the "we're all professionals here" position, this seems like highly unprofessional behavior to me....

While I'm confident the majority of health care professionals would not act this way, there are enough incidents of this type that it is an issue to be concerned with.

TT

Joel Sherman said...

Another foolish person, this time a nurse in a nursing home, taking unauthorized pictures.
Obviously most of the pics were intended as jokes, but including a patient in it crossed a line and she got fired.
Reminds me of a case I saw recently where some high school volunteers posted on YouTube films of themselves horsing around in the hospital corridors. Don't know if the kids got thrown out or not but medical establishments just can't tolerate these kinds of shenanigans anymore.

MER said...

Joel:

I posted that URL for the youtube video "The Day in the Life of a Cancy Striper." I checked out the URL and couldn't find it. I did a search and it wasn't on youtube anymore. I can't recall the hospital now, but the identify of the hospital was quite clear. What I found ironic was that at one point, the kids are getting into an elevator to go up a floor or two, filming everything along the way -- and a nurse tells them that they can't "bring" that stuff with them. She was talking about the food they were eating, not the cell phone cameras.

In fairness to the hospital, my guess is that the video was filmed and posted without their knowledge or approval and when they learned about it they took it off.

But, it does demonstrate that many of these young healthcare workers don't know the rules, the hosptials don't spend enough time teaching them the ethics of their jobs, the rules don't seem to be enforced, and there is not enough supervision for these new and/or young health care workers.

Cell phones and cameras are so small today and so innocuous, that patients need to be very wary of what might be going on around them. That's unfortunate. The trust is eroding even more.

Joel Sherman said...

Thanks MER, I don't think that these incidents are all that common, but it's hard to judge. There's a case evolving now in Arizona with nurses, but the details aren't yet available. Cell phones are ubiquitous, but I have never noticed anyone taking pictures with them in a couple hospitals. So it's not being done openly.
I agree in your case that the hospital likely knew nothing of the video. I haven't seen formal hospital education programs on this issue and likely more education is needed.

Anonymous said...

One thing that worries me is how easily these small camaras that take video are to hide. A nurse, housekeeper or whoever can go into an empty exam room and hide the camara in probably dozens of places knowing that soon there will soon be an examination in there. It could be common but it's just too easy to get away with if they're careful. We know there are plenty of unethical perverts that would have access to any room.

Joel Sherman said...

Here's an EMT who responded to a call for a murder victim and then posted the picture on Facebook of all places.
Not surprisingly he got fired. You'd think they be trained better than that. Surprisingly the EMT was a retired poice officer at age 46. Possibly only in NYC could you retire at 46.

Hexanchus said...

Joel,

The EMT in question was arraigned today on misdemeanor charges of official misconduct - here's the url of the CNN story....

http://www.cnn.com/2009/CRIME/06/04/ny.facebook.corpse/index.html

Joel Sherman said...

Thanks for the update.

Anonymous said...

I may have missed the answer if one has already been posted... if so please excuse me.
IF you are allowed to black out photos/videos on an admissions consent form when you have ability to do so (presence of mind), does this mean that in an emergency if the take pictures (excepting any law enforcement might want) can you block and have destroyed any others they might take? It seems that one could claim that right based on the fact that you are allowed to do so at all.
I, personally, do not like the idea of them doing it in an emergency situation as it seems to be taking advantage of the patients inability to make an informed decision. Although I do understand why law enforcement has a need for some injury photos.
Does anyone have any ideas asto what benefit these would be to the patient.. if any?
leemac

Joel Sherman said...

I am not sure I fully understand your question, leemac.
There is rarely any emergency need to take a picture of a patient or a procedure. If you denied permission for a picture to be taken, I can't think of any circumstances which would justify them doing it over your objections.

Anonymous said...

My question is in trying to determine if there is any medical need for photos or videos.. any reason it is needed for treatment? I ask this from both the times when a specialist is conferenced from distant points and the times when no outside expertise is sought... Can there be any any reason that such photos/videos are of any use in the treatment of the person videoed or photographed?

leemac

Anonymous said...

I am not sure I alsostated that teh issue of phots is more for the times when you are not able to make your wishes known (unconciousness from illness, accident, or in the event the doctor had ruled that at the moment a decision needs to be made you do not have presence of mind sufficient to give or deny permission) I use th epesence of mind because of the number of event which can happen whereby treatment in an emergency room is dictated by law and fear of malpratcie.. and also because a physician may feel tht there is reason to believe a serious injury , which is not plainly evident,, ie spine or head, may have occured but that the patient can not or does not know that it exists. Head injuries and lower back fractures and such may not be apparent for a period of time.
I am not asking about the tv jerks that do it in some name of educational entertainment.
I do know that if you have obvious injuries, bruises, cuts, punctures, law enforcement may take photos..even of private parts and often in abuse situations medical personnel take photos both to satisfy the law and as defensive evidence that such injuries did not occur at the hospital.
leemac

Joel Sherman said...

leemac,
Doctors can and do take diagnostic pictures on unconscious patients to make the diagnosis without permission if family not available. They have no need to take any normal pictures. I never heard of police ordered pictures of living patients being taken either.
Even in rape cases, lacerations and bruises are described in detail in the report, but I have never heard of pictures being taken. Can't imagine bringing in a male photographer (and most are male) to photograph a rape victims injuries.

Hexanchus said...

Joel,

A number of sites on the web can be found that describe the sexual assault exam procedure and guidelines. Most do refer to taking photographs of injuries, but they must have the patient's specific permission to do so. The exam can easily be done without photos.

Prosecutors like photos to lay in front of the jury because they are a much more graphic representation of the injuries inflicted than simple words in a report, but they're not necessary. The examiner's report and testimony should be more than sufficient.

Anonymous said...

OK thanks Dr.Sherman and Joel....
I was curious if there were ever circumstances where (excluding such diagnostic imaging a sonogram, x-ray, mri) photgraphs or videos were of medical value.
The only example I know of that was valid was at a clinic near where I came from.. The clinic had anurse practioner most of teh time, but a doctor only one or two days a week,,, This clinic was over one hundred miles from doctors (they had to fly in when they came) the area served comprised nearly a thousand people. There they used a 2 way tv hookup to communicate with the doctors office when a doctor was not there and the illness/accident was severe or one that the state did not allow a nurse practioner to do alone. At this clinic any injuries or some things like rashes were photgraphed and the photograph was to be examined by a doctor when he came in.. they used polaroids for years and then digital.. the clinic is now closed because it was at a company town and the company closed their plant and sold the town off.. (today the town is used by stae and feds for counter-terorist training)
leemac

Joel Sherman said...

leemac,
I'm not aware of similar arrangements to the clinic in this company town, but it is certainly rational.
I do know hospitals that take all digital x-rays and send them off on the web for readings, which could even be done in India.
But I would certainly approve of having a web cam filming an encounter so that a distant doctor could view it and provide advice.
They may have done something similar when a doctor in the Antarctica came down with breast cancer and operated on herself. I don't remember the details of that story. The woman recently died.

Anonymous said...

I had an friend that was raped and I remember her telling me of her humiliation when she had to have full-body pictures taken of her in the local clinic (this was at an isolated vacation resort). She didn't mention the gender of the people photographing her but she didn't feel like she had a choice.

She felt like she had been violated not once but twice that night.

I don't know if it was for medical reasons or legal reasons but it happened at the medical clinic.

Anonymous said...

In cases of forcible rape photos
may be taken to preserve physical
injuries done with a female officer. Anyone can refuse any procedure up to a point as its in
the states interest to preserve life which may stem from a court hearing. Aside from that pictures
taken for reasons of trauma are
at the permission of the patient only.

PT

Anonymous said...

Initially 8 nurses and patient care
techs were suspended for taking
cellphone pics of a patients genitals at University hospital in
Tucson. After an investigation,4 of
the 8 were fired. The fact of the matter is regarding these kinds of
behaviors,few are caught and even
fewer make it to the news.

PT

Anonymous said...

I think this is horrible and like it or not your operation may be videotaped. Will these videos be on file for a period of time? Who will have access to these videos? I understand something must be done here but it seems the patients should not be the ones who have to suffer.

Daniel

MSN-

PROVIDENCE, R.I. - Rhode Island’s largest hospital was fined $150,000 and ordered to take the extraordinary step of installing video cameras in all its operating rooms after it had its fifth wrong-site surgery since 2007, state health officials said Monday.

Rhode Island Hospital, the teaching hospital for Brown University’s Alpert Medical School, was fined a second time for wrong-site surgeries, state health director David Gifford said. The hospital also was fined $50,000 after brain surgeons operated on the wrong part of the heads of three patients in 2007. Gifford said his department has issued only two fines — both to Rhode Island Hospital.

Gifford sent a letter and order to hospital CEO Timothy Babineau on Monday.

Story continues below ↓
Babineau said in a statement that the hospital was committed to reducing medical errors and had been taking steps to improve patient safety.

But he also requested a meeting with state officials to discuss the sanctions, saying he was disappointed that the health department had not incorporated into its order separate recommendations from the Joint Commission Center for Transforming Healthcare. A hospital spokeswoman said she did know what those recommendations were.

The latest incident last month involved a patient who was to have surgery on two fingers. Instead, the surgeon performed both operations on the same finger. Under protocols adopted in the medical field, the surgery site should have been marked and the surgical team should have taken a timeout before cutting to ensure they were operating on the right patient, the right part of the patient’s body and doing the correct procedure.

Gifford said the surgical team marked the wrist, rather than each finger, and the surgeon did not mark the site himself. The team did not take a timeout before the second surgery. When they discovered the error, they checked with the patient’s family to see if they should perform the surgery on the correct finger. When they did the surgery on the correct finger, they also did not do a timeout, something Gifford called “amazing” given that they had just made such a serious error.

The order includes a provision that the hospital must assign a clinical employee who is not part of the surgical team to observe all surgeries at the hospital for at least one year. The person will monitor whether doctors are marking the site to be operated on and taking a time out before operating to ensure they’re operating on the proper body part.

It requires the surgeon to be involved in marking the surgical site.

It also gives the hospital 45 days to install video and audio recording equipment in all its operating rooms. Every doctor will be taped performing surgery at least twice every year, although it will be left up to the hospital whether to tell surgeons when they are being monitored, he said.

The purpose is to use it as a monitor and a training tool, he said.

“Professional athletes do it all the time,” he said.

Gifford said he had never heard of another state health department ordering a hospital to install video cameras in its operating rooms, something he said surgeons should welcome.

“You know what? They should be open to that. Clearly there’s a culture of making mistakes, so if they’re hesitant to have someone to look over their shoulder, that says to me that we’re doing the right thing,” he said.

Anonymous said...

Yes isn't it interesting. Presumably if they don't want to tell the medical staff when they will be videoed, for obvious reasons they won't be telling the patients or seeking their specific permission either.

I note no mention of patient privacy or dignity in this article.

Chris

Joel Sherman said...

Thanks Daniel. That MSN story is interesting and the points you raise are valid. Both patient and surgical team should know that they could be videotaped. The patient's agreement should be specifically obtained. The surgeon undoubtedly does know that he could be filmed, but may not know whether they actually are videotaping.
Beyond that though, I do not know how the videotaping can actually prevent these incidents. You only have the evidence after the fact. They may not even look at these tapes unless there is a reported problem.
An unrelated point, most sites forbid republishing of their material though many grant permission to publish short excerpts. I do not know MSN's policy. But all sites would require that a link be given. Please post the actual link to MSN if you still have it.

Joel Sherman said...

Here's a brief article on KevinMD blog about videotaping in the OR suite. The article recognizes all the possible problems and benefits, but doesn't attempt to reconcile them. I'll be interested in seeing what comments are added.

Anonymous said...

Here's an interesting post by a nurse on his blog about the increased use of i-phones by nurses, esp. in the OR.
MER

http://www.impactednurse.com/?p=1565

Anonymous said...

Here's a real jaw dropper of an admission from allnurses:

"We record trauma surgeries "for educational purposes" and are specifically told not to document that such a recording exists...they not only been exposed to the staff caring for them, but it has now been recorded/viewed by how many other people as well. There are also no guarantees that the people viewing distantly will act professionally either."

http://allnurses.com/general-nursing-discussion/patient-modesty-concerns-196068-page13.html

Hexanchus said...

Dismaying as it is, it doesn't really surprise me - just another example of the overbearing sense of entitlement many, if not most medical institutions exhibit. Undoubtedly they have some vague statement regarding videotaping buried somewhere in their admission documents. A trauma situation might be different, in that the patient has no real opportunity to give or refuse consent to videotaping.

What I find really disturbing is the institutional policy to deliberately not document that such a recording exists. This could easily be construed as falsification of the medical record by deliberate omission of pertinent information.

Joel Sherman said...

I agree. That comment is shocking. I wish we had more information. How common is this? What exactly is filmed? And Hexanchus is likely correct that the hospital covers itself by having patients sign a blanket all inclusive permission slip. Not sure that would hold up in court though.

Joel Sherman said...

Here's a story about nurses and others being disciplined and fired for taking photos in the ER of a stab victim who later died, and then posting the pictures on FaceBook.
Hard to understand how employees can not know that this is unacceptable.

Anonymous said...

A few very interesting items:

1. A discussion on allnurses about that new reality show, BostonMed. Many items relative to this thread. Note some of the comments about what appear to be medical personnel taking their own personal photos of these procedures.

http://allnurses-central.com/entertainment-central/anybody-else-watching-497630.html

2. Also, an article about the filming of BostonMed which includes some interesting insights about things like informed consent. Not what they say about how they deal with filming ER scenes. And not what they say about patients not wanting to give consent for urological or other intimate procedures.

http://www.philly.com/dailynews/columnists/ellen_gray/20100623_Ellen_Gray__ABC_News_documentary__Boston_Med__details_the_work_life_at_three_hospitals.html
MER

Joel Sherman said...

I posted this several days ago, but I don't know what happened to it:

Here's a story about nurses and others being disciplined and fired for taking photos in the ER of a stab victim who later died, and then posting the pictures on FaceBook.
Hard to understand how employees can not know that this is unacceptable.
August 14, 2010 10:49 AM

Joel Sherman said...

Those were interesting links, MER, especially the one on philly.com. I've never watched Boston Med. I assume it's supposed to be real live physician patient interactions a la the Johns Hopkins series. Clearly they pay full attention to informed consent and it was interesting though not unexpected that they had more difficulty getting consent to the female urologist segment of Johns Hopkins. I found some of the comments disturbing in that they implied that taking pictures in the hospitals was very common by all involved (though posting them on FaceBook was not).
I don't know what Boston hospitals are involved in this show, but I also find it disappointing that likely prominent institutions have to pander to the mass media for publicity.

Joel Sherman said...

Airport total body scanner images are supposed to disappear as soon as your through it. Well not quite. Turns out they keep large numbers of these scans for 'training purposes.' It does make one wonder.

Hexanchus said...

Joel,

I find the storage of images from body scanners extremely disturbing. How many times have we heard DHS/TSA officials emphatically state that the airport scanners are not capable of storing images. They have flat out lied to the American people.

Now we find that the scanners are not only capable of storing images, but that it is a requirement in the bid specification. The statement that the feature is "turned off" is of little assurance. The fact the capability exists and can be easily enabled is extremely disturbing. Again, they flat out lied to the American people.

Anonymous said...

I was recently watching an episode of "Untold Stories of the ER." I had always wondered how they got informed consent from seriously injured or unconscious patients. I did a little research. What I found out is shocking. Here's what the Joint Commission says about this:
" It is appropriate to film or videotape patient care activities in the emergency room, provided patients -- or their family members or surrogate decision makers -- give informed consent. In a situation where the patient is comatose or otherwise unable to give informed consent and no surrogate decision maker is available, the hospital may film or videotape itself or retain another to film or videotape patient care activities within a policy stating informed consent is required before that patient's film or videotape can be used for any purpose. Anyone who films or videotapes must sign an appropriate confidentiality commitment."
So -- basically, let's say you enter the emergency room alone with no friends or family. The ER can start filming right way with the intention of asking you later. Everything gets filmed. Everything.
So -- what happens if they film you, later ask you for permission, and you say no. Here's what the Joint Commission says:
"The expectation is that the health care organization retains control of the film or videotape until consent is obtained. If consent is not given, then the patient is either removed from the film or videotape or the film or videotape are destroyed."
So -- the ER maintains control of the film, with the patient in it, even if the patient hasn't given informed consent. My interpretation is that the ER can rub out the patient's face and/or otherwise the patient ID, and then use the film however they want.
So -- what happens with "Untold Stories of the ER," I gather, is that the filming starts right away when an interesting case arrives. If relatives are available, they may give consent -- even if they are not listed in an advanced directive. Later the patient is asked for permission.
What if a patient says, not only do I not give you permission to use this film, but I would have never given you permission to film it in the first place? Apparently, patients don't have that right.
And, in all honesty, who really knows what happens to the film if the patient does not give consent. The patient has no control over it.
Here's the source for this information:
http://www.jointcommission.org/AccreditationPrograms/BehavioralHealthCare/Standards/09_FAQs/RI/Patient_Rights_and_Informed.htm
Doug/MER

Joel Sherman said...

That's how I've understood it Doug. I think the few hospitals that film these episodes likely have permanently mounted cameras in all rooms, so that you never really know what's being filmed. You or whoever accompanies you probably sign away your rights on admission paper work without ever being aware of it. I fear the most you can expect is that if your films will be shown commercially AND you're identifiable, they will ask for separate permission. Don't know if they destroy films if permission is refused. They probably don't have to.
It's an outrageous system. I personally would never go to any hospital that did filming for TV shows.

Anonymous said...

Thanks for your comments, Joel. Here are some other issues I have about this situation.

-- Most patients don't know about these "rules." They learn about them, if at all, after the fact. Big signs need to be posted outside ER's clearly stating that filming is going on.
-- In the excitement and emotion of a real trauma, what patient or family member is in any condition to grant any kind of meaningful informed consent.
-- The informed consent should be for the filming to actually begin -- not for it to be maintained and used.
-- The way the Joint Commission words this policy -- "... the hospital may film or videotape itself or retain another to film or videotape patient care activities..." So, essentially, anyone can do the filming. That's how the TV shows get away with it.The hospital "retains" them to do the filming. Based upon that policy, the hospital could "retain" a high school or college film class to do the filming.
-- The Joint Commission policy also states: "In addition, anyone who films or videotapes must sign an appropriate confidentiality commitment." Wow! That makes me feel really comfortable. So -- they sign a paper. So what?
-- Copies of electronic files are easy to obtain these days, often produce multiple copies, and sometimes difficult to destroy. Note that most people don't realize that the newer photocopy machines have hard drives, and record everything that's copied. So, what happens to that machine when it's resold? How do hospital and medical offices make sure the private records of their patients are protected when they get new machines?
-- Relative to this ER issue, filmmakers can now stream what they're filming to a computer so that they're not only recording it on sight, but it's also being recorded on their computer hard drive.
This is an issue that needs to be taken up by legislative bodies in the various states and dealt with.
MER/Doug

Joel Sherman said...

Here's a report from Savannah of hospital employees fired and disciplined for taking pictures of an x-ray of a male patient's 'pelvic region.' The picture was texted between employees and posted by one of them on Facebook, all without identifying information. But apparently, the same picture was also sent to a local newspaper with identifying information. The paper didn't publish it.
No information has so far been given as to what the x-ray showed or who the perpetrators were. My guess would be that it was a picture of an embarrassing foreign body as otherwise these x-rays are pretty dull.
It's amazing the kind of abuses that can happen. Maybe more information will become available.

Doug Capra said...

Joel:

It's good to see this being investigated and the hospital dishing out punishments. But what is intersting is that all these investigations and conclusions and opinions about what laws may or may not have been broken -- all of this is coming out of the hospital. They are investigating themselves. In one sense, that's good. They're taking responsibility. But in cases like this we need outside investigations to be done right away, while the evidence is still around and people's memories are still intact.
MER/Doug

Joel Sherman said...

A nursing student was recently expelled for a year for posting a picture of a placenta on Facebook. No identifying information was posted. The student had apparently asked her instructor's permission to take the picture, but not to post it. (The full picture which I've seen elsewhere does show the placenta.)
I do think that this is an overreaction. Any other opinions?

Anonymous said...

I suppose this could be considereed an over-reaction. But an important principle needs to be consistently upheld in cases like this i.e. Patients are not objects to be displayed for the benefit of the medical profession. That is not their function. They are unique,human beings with rights. This also applies to parts of their bodies as well. Consider that new book out about how medical scientists "stole" DNA from a patient and created an entire industry around it to make a profit. Now the patient's family wants a piece of the action. Who owns a patients DNA material?
Medical professionals need to include the patient in any decision that regards their body or body parts -- that includes taking pictures and/or posting them on social media. Patients and pieces of their bodies don't belong to the medical profession. Assuming that they do is the ultimate insult to human dignity.
Having said that, it perhaps would have been better in this case that the nursing student and the instructor were reprimanded and required to be retrained in patient privacy issues.
MER/Doug

Joel Sherman said...

I agree Doug. A reprimand would have been enough. Expelling a kid for an issue that likely was never clearly explained to them is taking it too far.

Anonymous said...

Medical ethics needs to get ahead of the 8 ball on these social media issues. I just read an interesting thread on all nurses about the fear of Facebook. Most nurses suggest that nurses don't post anything about work on their Facebook page, nor let their coworkers on the page.
Perhaps it's out there -- but I'd like to see some clear guidelines written out by the AMA and nursing associations about what's considered ethical with blogs and social media. I stated my opinion about the basis of the ethical position in my last post. That should guide all the specifics.
This thread is an interesting read:
http://allnurses.com/general-nursing-discussion/fear-facebook-nurse-525008.html

Consider all the doctors, nurses, cna's, patient techs, etc. who have blogs and write about their work. They may think they're covering up patient identities, but they may be surprised. There's a difference between a professional page, led by the profession, with the purpose of promoting the profession and helping cure and treat patients. There's a difference between that and individual doctors and nurses with personal blogs and Facebook pages designed for their own personal reasons. I'm not saying these personal pages are all bad or can't be useful, but their motivations are mostly personal, not professional.
Doug/MER

Joel Sherman said...

I agree Doug that many professionals get into trouble on their blogs. One has to be very careful relating any anecdotes from work situations. I rarely do it.
But it was fashionable for awhile to post all kind of patient anecdotes without giving names, though often with enough information that the patient could potentially be identified. Our infamous 'Keagirl' was among them. I don't think it's a coincidence that she has abandoned her blog.

Anonymous said...

In the case of videotaping hospital patients whom family or advocates feel are being abused or neglected, the person videotaping has the right to tape, based on the person's special protected status, as a person with disablity, and if there is a reasonable expectation that the said patient is being abused or neglected by hospital staff, videotaping is allowed, to document, prevent or cease the abuse or neglect. It is also in public's interest to know that hospitals are increasingly abusing and neglecting autistic patients, due to their failure to understand autism, especially severe autism. However, it is important the advocate videotaping make a diligent effort to keep the faces of other patients and hospital staff off the camera. In a case like this, the top priority is patient safety, human rights, and as such it is in the public interest to see how this autistic population is treated in US hospitals.

Joel Sherman said...

Interesting comment Anon. I'm not familiar with the problem. Do you have any links you can give?

Anonymous said...

"In the case of videotaping hospital patients whom family or advocates feel are being abused or neglected, the person videotaping has the right to tape..."

Anon -- You seem to be referring to the patient or patient advocate's right to video if they suspect abuse. I don't disagree with you. But this video, then,is coming from the patient or the advocate, not from the institution. We've been talking here about the hospital, without patient permission, starting the cameras as the patient enters the ER, then later asking permission to video. That's different.
Still, I'd like more info on this, particular the autism aspect of your story. Could you provide us with any links?
Doug/MER

Joel Sherman MD said...

Here's a link to an interesting NY Times ethicist column wherein he discusses med students taking cell phone pictures of students and then posting them on Facebook with humorous comments. Clearly unethical to me. If the med students don't know any better yet, someone ought to clue them in quickly.

Doug Capra said...

Joel:
I checked out that site. Disturbing. Gallows humor? Battlefield humor? These students and others need to be reminded who exactly is on the battlefield and on the gallows. If the students were bleeding or had their personal necks in the noose, they might see things differently. I'm not suggesting that this kind of humor may not have some beneficial effects on caregivers. But they need to be careful about how they use it and who happens to overhear or see.

Anonymous said...

I posted this link on the Bioethics blog.

Thought you might be interested in this report where nurses have been dismissed in an Australian Nursing Home for:
"The anonymous whistleblower told The Sunday Telegraph that the "Genital Friday Club" involved photographing the genitals of the residents on an iPhone and then passing the images around for colleagues to guess who they belonged to.

It was alleged three nurses had told an elderly woman with dementia that her husband was having an affair with her best friend while she was in care."

This is the link to the article.

http://news.ninemsn.com.au/national/8220305/nurses-fired-for-abuse-of-elderly-residents

Chris

Joel Sherman MD said...

Thanks Chris. It's an interesting story, worth keeping track of to see what charges are eventually filed. It goes way beyond just taking pictures if the allegations of starving a patient are true.

Anonymous said...

I have worked in hospitals for my entire career, but only recently had become a patient and I was surprized at how a patient is coerceed into "consenting" to filming, unauthorized observers etc. During my last outpatient surgery I read the consent carefully and crossed out all references to allowing filming or to allow observers, residents, drug company reps or visitors in the OR while my surgery was being done. My surgeon had promised that he would personally do the case, bier block only, no sedation, but everyone tried to get me to agree to the possibility of gen anes (crossed it out) and to allow observers (crossed it out) and had the surgeon and anesthesiologist sign the modified consent. After the pre-surgery "time out" I asked each person in the OR to identify themselves; incredibly there were 2 residents, a student nurse and a premed student! I blasted the surgeon who lied to me (he kicked them out) and I told him that I was withdrawing my consent unless he had a damned good excuse for lying to me. He didn't and a long discussion ensued resulting in me tossing my paper hat on the floor and hopping off the table and leaving. Good thing that I had made the anesthesia doc sign the "no general or no sedation" addendum on the consent..I'm sure that they would have drugged me and claimed that this didn't happen. During my colonoscopy a year later, my endo doc asked my permission for 2 nursing students to observe; she was worried that I might not agree since I wasn't getting any drugs (don't trust anesthesia anymore). I agreed because she ASKED first. I hope that my prolonged farting in front of these pretty girls was entertaining. I eventually got an apology from the first doctor who lied to me, but not before I told everyone at the hospital of the incident. Patients should not be viewd as pieces of meat who sign away their rights just because a clerk says: "sign her so we can treat you" Thats not informed consent.

Joel Sherman MD said...

That's an amazing story, anon. I will also copy it to the informed consent thread as it is even more pertinent there.
Most patients would be unable to get their surgeon and anesthesiologist to sign the hospital consent forms as they are nowhere around when the clerk gives you a form to sign. In your case it was likely only feasible because you discussed it with your physician beforehand. That should be routine, but almost never is.

Joel Sherman MD said...

Here's the retelling of a legal case which cost a surgical resident a job and maybe his career. The case was settled out of court and never went to trial so I assume it was never made public.
The surgical resident took and distributed a picture of a penile tattoo on a preop patient who was already under anesthesia. A woman staffer reported it.

Joel Sherman MD said...

An interesting thread on allnurses concerning the increasing trend of 24 hour video monitoring of patient beds, usually in intensive care units. I wonder how many patients and families are really aware of this? It probably doesn't happen that express permission is asked for. So a patient could be being bathed etc. while the video of this is displayed at the nurses' station for all to see.
What are your thoughts on this?

Hexanchus said...

Joel,

CMS's interpretive guidelines for 42CFR482.13 specifically address this issue - see the following quote:

"People not involved in the care of the patient should not be present without his/her consent while he/she is being examined or treated, nor should video or other electronic monitoring/recording methods be used while he/she is being examined without his/her consent. If an individual requires assistance during toileting, bathing, and other personal hygiene activities, staff should assist, giving utmost attention to the individual’s need for privacy. Privacy should be afforded when the MD/DO or other staff visits the patient to discuss clinical care issues or conduct any examination.
Additionally, audio/video monitoring (does not include recording) patients in medical-surgical intensive-care type units would not be considered violating the patient’s privacy as long as patients/patient representatives are aware of the monitoring and the monitors or speakers are located so that the monitor screens are not visible or where speakers are not audible to visitors or the public. Staff must take appropriate precautions to provide patient privacy while patients are toileting, bathing, or being examined."

That's pretty clear.

Note that this applies to direct audio/video monitoring only - recording is not allowed.

Joel Sherman MD said...

Thanks Hexanchus. I had little doubt that being monitored at the nursing station so that all staff could see would be against privacy mandates. But how many patients and families are really aware of the possibility? It's usually covered on long form statements you're asked to sign on admission which few people actually can stop and read. It would be rare in my estimation that specific permission is requested and granted.

Hexanchus said...

Joel,

All the more reason everyone should take the time to read ALL of the documents before signing them. Make the admitting folks sit and wait while you take the 10 or 15 minutes or whatever it takes to thoroughly go over it. If any of it is small print, ask for copies in a larger, more readable font. If you find anything you object to, cross it out by drawing a line through it & initialing it. If even half of the patients would do this they would be forced to address it as it would bring the admitting process to a crashing halt.

CAPEMAN1 said...

I can't believe that a nurse or doc would let their patents at their most vulnerable time would let a tv crew film them ,,,really ...my trust in nurses and doc went down a few hundred pegs...nurses taking pics and gossiping about paitents and they barley seemed to be disciplined...are you medical professionals or locker room jocs

Joel Sherman MD said...

This case is new to me. A New York state pediatrician is charged with secretly filming naked young girls in his office. He also had on his computer a book he was writing, a 'how to' guide on molestation.

Totally disgusting. Dr. Rakesh Punn is a foreign medical graduate from India. One hopes this country can screen medical students better, but who knows? They couldn't screen him out in post graduate medical training.

Joel Sherman MD said...

Here's a pretty horrible case. of a nurse's aide posting online nude pictures of an elderly nursing home man in the process of having a bowel movement.
She was convicted of misdemeanor violation of privacy, and sentenced to 8 days in jail, a $500 fine and a prohibition against ever working with the elderly, children or other vulnerable people again, among other things.

Joel Sherman MD said...

A California plastic surgeon is accused of videotaping his patients in the nude while they are changing. The guy claims to be a plastic surgeon to the stars as he has been on TV several times.
It's a strange fetish for a plastic surgeon would see a lot of nude women in the course of his practice. Losing his license and becoming a convicted sex offender will put a crimp in his Hollywood hopes.

Anonymous said...

About the time he was arrested a urologist from Mt Sinai
was arrested for taking pics of women under their skirts
with a small camera.

PT

Joel Sherman MD said...

Here's the other side of the coin, patients secretly taping their physicians and staff in Canadian hospitals. One such recording was used to convict a psychiatrist for sexual assault.
Any thoughts?

Joel Sherman MD said...

A report of a TV show invading the privacy of a dying patient in Sweden.
I guess reality shows can get worse in this country if that's what happens in Western Europe.

Joel Sherman MD said...

A breaking news story of a Maryland Ob-Gyn who reportedly committed suicide after being caught filming secretly a huge number of patients.
Patients worst fears come true.

Anonymous said...

What are the ethical principles involved/breached (including secondary) (e.g autonomy and confidentiality) with a nurse taking a photo of a patient's wounds/bruising whilst the patient is unconscious? (please be in depth) What do you do as a bystander? and what are the consequences?

Joel Sherman MD said...

A brief report of 2 nursing home aides filming elderly women without their consent and distributing the images.
Both women are facing criminal charges.

Joel Sherman MD said...

More cases of OR personnel taking unauthorized pictures in the OR with cell phones. Two separate cases are given, one of a salesman taking pics of a nude patient. No details are given.
The other may have been intended as a joke taking a pic of an another employee under anesthesia.

Joel Sherman MD said...

There seems to be a lot of this. Here's an incident of a urologist taking a picture of an anesthetized man and sending it to others for non medical reasons. Few details are given. Don't know if the patient was exposed.
There seems to be more of these incidents, likely representing the ubiquity of cell phone cameras.

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