Cross Exam: The Legalities of Body Cams Raise a Range of Questions

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One of four articles in the Physician, Record Thyself series. Other articles in series:
The Case for Body Cameras: Good for Doctors – and Their Patients by Jeremy Brown, MD
By the numbers: Are Med-Cams Financially and Technically Feasible? by Nicholas Genes, MD, PhD
The Invisible Gorilla: Are doctors ready to have their professional lives on display? by Judith Tintinalli, MD, MS

crossexam wWith any new proposed use of technology comes a new need to review potential regulations and laws. Video recordings of patient interactions would be no exception. Some things consider:

Who controls the video? It seems rather straightforward that the hospital controls the medical record. Obviously a patient would be able to request a copy of the record – which should include the video. Most states have statutory copying fees for medical records. It would be interesting to see how those fees would apply to videos. HIPAA allows patients to amend information that has been used in medical decisionmaking about the patient. Would this requirement allow a patient to delete portions of the recordings?

Speaking of HIPAA, how would we address the issue of other patients being captured in the recordings of one patient? What if a patient wants to make their own video recordings using their own cameras? When my kids misbehave, sometimes I pull out my camera phone and video record their behavior. Now they’ve started pulling out their phones and video recording me as I video record them. Will there be similar “camera standoffs” in the care of patients? If so, how would that affect a physician’s medical judgment? Conversely, how would the spectre of being recorded influence what information a patient discloses to a physician?

What would happen if a patient refuses consent to be video recorded? Even more importantly, should a patient be able to refuse consent? If you walk into a courthouse, a bank, a casino, or pretty much any federal facility, you have given tacit consent to be video recorded. Don’t like it, don’t enter. Many of the places would probably refuse admisison if you tried to avoid being videotaped. Should we apply these rules to exam rooms as well? Things would really get complicated in the emergency department since the hospital is required to provide a screening exam under EMTALA and that exam isn’t predicated on being able to videotape the encounter.

Some police agencies require that police officers have video rolling at all times. Would medical providers be subject to similar requirements? If so, would lack of a recording regarding a disputed incident lead to an inference that the provider or hospital destroyed evidence or did something wrong? Who would be subject to wearing the cameras? Doctors? Residents/Interns? Nurses? Students? EMTs? That’s an awful lot of video footage to store.
What procedures should be followed during examinations of intimate areas? Should recording cease? Would someone have to go in and redact sensitive areas of the video recordings? And would the mere suggestion of recording medical exams of intimate areas cause a public perception of the medical profession as a bunch of voyeurs?

Need I continue? I think that audio records of patient interactions would have most of the benefits of videotaping patient interactions without raising nearly as many privacy concerns. Obviously, video recordings may have their place in medical care as well. As Dr. Brown pointed out, video data would be more valuable in violent patients, psychiatric patients, and surgeries. Recordings of patient interactions would also be useful in teaching future generations of physicians how to better interact with patients.

As we mull the policy concerns and the potential benefits of panopticon, we also have to consider the adverse effects it may have on our workforce. The importance of the physician-patient relationship seems to have eroded over time, but it remains one of the few intimate relationships we still place a special value upon in this society, along with the spousal relationship, the priest-penitent relationship, and the attorney-client relationship. Routine video recordings in any of these relationships would make them more adversarial and diminish their value.

From a policy and legal perspective, I’m not sure a medical panopticon is ready for prime time quite yet.

William Sullivan, DO, JD is a senior editor for Emergency Physicians Monthly.

ABOUT THE AUTHOR

SENIOR EDITOR
Dr. Sullivan, an emergency physician and clinical assistant professor at two residency programs in Illinois, is EPM's resident legal expert. As an attorney specializing in healthcare issues, Dr. Sullivan represents physicians and has published many articles on legal aspects of medicine. He is a past president of the Illinois College of Emergency Physicians and a past chair and current member of the American College of Emergency Physicians' Medical Legal Committee.

3 Comments

  1. Keith Raymond, MD on

    Body cams? Why not three drones buzzing around my head at all times! I need all angles so my You tube blog can cover every shift. The idea of video encounters is idiocy at best. Who would watch, Hospital lawyers! Then comment on what they don’t unterstand. Really?

  2. Robert J. Wise, DO on

    Thank you for bringing some sense to this issue. Big brother is watching, and anyone who thinks the addition of cameras for regular use in documentation of visits benefits the proper application of medical care is naiive.

  3. Harley Schmidlap, MD on

    It depends on the situation, the state in which you practice, and what the coverage(s)l of your malpractice insurance is. l was involved in my first malpractice case in 1992. The Malpractice Insurer’s attorney recommended I settle-it was over $1 x 10**6! He was told by ‘his’ expert, “This case is defensible, but probably not ‘winnable.” Today, thanks to the ‘cloud,’ I’d evaluate plaintiff’s ‘expert’ witnesses and those used by ‘my’ attorney. I’d suggest a line of questioning to ‘my’ attorney. If I couldn’t assist in my own defense, I’d pay for my own attorney. From what I learned during this ‘episode,’ when I was included in 3 more malpractice cases, I was dismissed with predjudice after my deposition. In one of these cases, I was accused of ‘failing to order an upright portable chest x-ray. That was the standard chest x-ray then in the ICU, as was clearly stated in the CXR reports-I read ~6 of them into the deposition record. My belief: Plaintiff’s ‘experts’ read orders only, NOT reports. Other 2 cases, I wasn’t involved in patient’s care on the day of incident. My motto now: If you don’t CYA, no one else will either.

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