What To Do When Patients Press Record in the Emergency Department

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Dear Director: It seems like more and more patients are trying to record me during my encounter with them. Sometimes it’s in the history portion, sometimes they want to record the procedure. I don’t want to end up going viral or get sued. Can I say no?

How many times have you seen friends post a picture of themselves or their family in an ER hospital bed? Technology has changed over the last decade, putting a high quality camera and recorder in everyone’s pocket, while social media has made it “normal” for people to post personal and private matters online. Thus, more of us are being confronted with a camera in our face as we perform our job in the emergency department. I was at a surgeon’s office last week, and there was a big sign at their registration window that said, “Absolutely no pictures or video recording.” I was afraid to even take a picture of the sign for fear that they would kick me out of the office, and I wouldn’t get the care that I need. There is no doubt we need to develop a policy that is in line with modern technology and social behavior.

Background
For decades, hospitals have been dealing with anxious parents as they want to record the birth of their child in labor and delivery. Interestingly, there are actually no national standards for allowing or not allowing recording equipment in the hospital, so each hospital must develop their own policy. And while patients or their families may say it’s their right to record themselves, that’s only true if they’re on their own property. Once they are on hospital property, patients and visitors must comply with hospital rules.


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Motivation to Record
While I didn’t do this for my own kids, it does kind of make sense to me that people would want to make recordings in L&D. The motivation there is generally not to capture an error but rather to record a life-changing family event.

However, just like the family member who starts noting your time of arrival into a room and exactly how to spell your name before you even ask why the patient is there, you have to question why someone might want to record parts of their ED encounter. In this case, it’s likely that the family wants to document something because they assume something went wrong or will go wrong, or they’re already unhappy. My hospital rarely gets complaints about our video policy outside of L&D, so if someone wants to record something in the ED, your radar should be up. While a before and after picture of a laceration doesn’t bother me, it would be very bothersome to have a camera in my face while I’m actually doing my procedure. However, there can be some potential advantages of recording. Some physicians are encouraging patients to record the conversation about discharge instructions so that they can re-watch them if there are questions.

What’s There To Be Afraid Of?
The theory goes that if you’re doing everything right and practicing within the standard of care, there’s really no reason to fear a recording. But a camera and a recording can change everything. Although we work in a fishbowl and are used to “performing” at times for patients, most of us aren’t actors and we all should be focused on the patient and not focused on how we look, act, or speak on camera. Most of us come to work to take care of patients, not for the potential to be an Internet star. Probably most of us heard about the case where a patient turned on his phone recorder prior to a colonoscopy (with the intent of hearing discharge instructions), and then the anesthesiologist made insulting remarks about the patient. The procedure took place in 2013, and the malpractice case concluded in 2015. Clearly the doc wasn’t “doing everything right” and wasn’t professional, but the recording cost them in court and made them infamous.


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Someone making a recording can also get in the way of caring for a patient. In areas of the hospital where a patient can worsen quickly and without notice (L&D and the ED), all eyes should be on protecting and caring for the patient – not on dealing with someone who may be in the way by making a recording.

Hospitals also have an obligation to protect the privacy of their patients (remember HIPAA?). Someone may be making a recording of their family member but then capture another patient in the process who does not want to be recorded and didn’t give consent. While TV news crews can film the outside of a hospital (with the normal people coming and going) from the sidewalk (considered public grounds), you typically won’t see news cameras inside the hospital without someone from your PR office carefully controlling the image and what’s visible so the rights of patient’s privacy are protected.

Physicians and hospital administrators are also concerned about how video may be used. It’s one thing to show a friend how goofy your teenager is after receiving meds from surgery; it’s another if it could be used for litigation. It’s so easy to edit recordings now that a chopped up sequence of events would not show the entirety of the situation and may not be a fair reflection of what happened. Thus, the recording could lose the true perspective of events.

Putting Aside Distraction
I filmed a commercial for a hospital years ago. I’ve had no acting experience since the sixth grade, but the script was simple, I had a teleprompter, and the director thought the whole thing would take a matter of minutes to film. An hour later, I was embarrassed to still be there (on some takes there were issues of the lights reflecting off my bald head and on other takes, I missed my mark when I was walking in) and ready to get back to the ED, but the director thought he finally had a good take. I never thought acting was easy, but this experience proved it to me. It also serves as a reminder about how as clinicians we need to focus on our jobs while not being distracted. Whether it’s a camera in your face or the perceived threat of a lawsuit, these are distractions that could interfere with patient care.


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Next Steps
The hospital has an obligation to protect the facility, staff, physicians, and patients and doesn’t want to compromise any party. As with many administrative questions, the answer may lie in your hospital’s policy book. Get to know your policy on patients making recordings and make sure your policy is consistent with your work environment and concerns. While the policy may prohibit recording in L&D, it may not comment on the rest of the hospital or it may only prohibit it in L&D during the actual birth. If it doesn’t include the ED, now’s the time to work with your public relations department to come up with a set of rules that are applicable to the ED.

I would propose absolutely no recordings and no photographs that include staff or other people/patients in the ED. Unless it’s a big problem, I wouldn’t advocate putting signs at triage or in patient’s rooms. While I’m not likely to tell a patient not to take a selfie in the ED, I will ask them not to do it while I’m at the bedside. If a patient wants to record something it’s always helpful to be able to say that our hospital prohibits the use of recording devices. If you don’t have a policy, or if they argue with you, I suggest politely saying that this conversation is taking attention away from the patient and not helping the patient and that you don’t consent to being recorded. While I would never advocate walking away from a sick patient, if you have the luxury of time, I would step out of the room. If the family is recording because they’re afraid of a mistake or if there’s a grievance, you can have someone from patient relations come talk to them.

When All Else Fails
It may, on rare occasions, be necessary to call security. If someone continues to record in the ED against hospital policy, you have to remove them. While there are clear needs for hospital security when it comes to a violent patient, I think of calling security as a last resort in this situation, as it may further irritate a patient or family member in what is likely a volatile situation. Therefore, prior to calling security, make sure you’re doing it for the right reasons, which may include following policy, protecting your ability to take care of the patients without distraction, or protecting privacy.

Technology isn’t going away, and just like we’re starting to see more police officers with cameras attached to them, there certainly may come a time when we see more recordings of the physician-patient interaction. I can’t remember the last time a patient wanted to record my interaction with them or that someone in my group mentioned it to me, so for now, I still think we’re early in this evolution. Therefore, we can go ahead and work on developing policies with our administration that take into account some of the patients’ desires while protecting the hospital, staff, and other patients.

ABOUT THE AUTHOR

EXECUTIVE EDITOR Dr. Silverman is Chairman of Emergency Medicine at the Virginia Hospital Center. He also serves as the Chief Performance Officer with Emergency Medicine Associates, a founding partner of Alteon Health. Dr. Silverman’s practical wisdom is available in an easy-to-use reference guide, available on Amazon. Follow on Twitter @drmikesilverman

14 Comments

  1. NIce article.

    JAMA recently did a piece on this exact issue which can be accessed at http://jamanetwork.com/journals/jama/fullarticle/2643728?amp;utm_source=JAMAPublishAheadofPrint&utm_campaign=10-07-2017

    If there is no hospital policy in place, then state law governs when one party consent is sufficient to record conversations. Here is an article which tells which states have which laws: http://www.dmlp.org/legal-guide/recording-phone-calls-and-conversations

    The photography issue is a bit more complex because of HIPAA. There have been lawsuits where a physician has posted a patient photo where eyes are obliterated but other identifying features, for example, a tattoo, has made it possible to identify the patient. HIPAA probably would not apply to a patient or family member capturing and publicizing another patient’s image, but I suppose it might if policies prohibiting photography of any kind were in place and were blatantly not enforced.

    • Mike Silverman on

      Louise,
      I appreciate your expertise and feedback and thank you for providing the links. Unfortunately for me, my column was already in press before the JAMA article came out. Bad timing for me.
      Thanks again,
      Mike

      • I really think a personal family video camera aimed just at the patient during the pandemic is fair to allow… family want to be with their relatives in an emergency and be able to speak for a patient when they are unable to speak for themselves…

  2. Mark Ibsen MD on

    In my state of Montana
    Video is legal in public spaces
    In private
    Recording is not allowed unless the person is informed.

    I don’t see prohibition as likely here.
    What about other states?

    • Thats not Montana specific, thats the entire United States because it falls under “Freedom of the Press” per the Supreme Court. Due to HIPPA it IS true that patients have the “reasonable degree of privacy” asserted to in the Constitution, but for the people stating about recording in public vs private, A Hospital IS public allowed (though not NECESSARILY public property inherently, like a government run hospital many counties have) and so certain times and situations may still fall under the first amendment and restricting or refusing care because of that could result in not only heavy Civil litigation (covered potentially under malpractice, but if it was their REFUSAL to see, treat, or care for somebody not due to medical evaluation but only on the base that they were recording they might very well be able to be sued directly or at least the hospital/county themselves directly due to unfair discrimination not malpractice, similar to a civil rights lawsuit, because there was no practice at all and refused to practice for discriminatory non-medical reasons) but also potential criminal charges (especially, if not only, when it is ruled as not malpractice but civil/Constitutional rights violation, and likely only when the person is visibly injured and/or ill) due to a health care professional egregiously putting someone’s life in danger (or resulted in death) by refusal of care for no lawful or reasonable reason which in doing so not only violated this persons civil/Constitutional rights, but also put them (and the public potentially) in danger and great risk of serious bodily harm or death.
      Malpractice is really just any medical care that results in negative (usually egregious, life changing or death) outcomes that were negligent in nature(simple up to large mistakes ((unintentional)) but that of which could have been prevented had the medical professional performed their duty((duties)) correctly and in accordance with reasonable expectations of the profession/scope of the medical professional), and/or not a reasonable medical decision that other doctors in the same field would consider(or perhaps even say its so outdated or illogical that it calls into question the ethics and ability to practice of the doctor). Most of the time negative effects or death even aren’t considered malpractice but are either reasonably unproventable, or the care was (even if generally unorthodox or uncommon) reasonable to provide with the knowledge at the time of said care, and other doctors have previously use the same or similar care for the same or similar symptoms/illnesses/injuries, and/or there is a reasonable conclusion drawn by the doctor, supporting the decision made at the time, that this care could potentially help/cure/heal/save the patient/limb/health and that any risks associated with said decision are, at the time, less threatening or likely than the refusal to do so.
      Constitutional/Civil Rights violations are not likely to fall under malpractice as they have nothing to do with medical care provided or lack thereof (even if the degree of care provided was due to that; a good example being Purposely giving lax or negligent care to somebody simply because they’re black ((regardless of any other listed reason just being a certain color or race or any other protected class has no place defining degree of care under the law))and is not only illegal, but a hate crime that potentially could evolve into assault, attempted murder, or murder. That being because it was targeted harrasment with at best ill, if not nefarious, intentions resulting in the stated negative outcome)

  3. Geez,,,how corrupt is it going to get??1st,,,Some SHRINK labels all CPPP’S as ,”addicts,,” to cover their own butts,,,thus screwing up all data,,,,,making all data lies,,Now,,,,”they,” are trying to make sure no truth is every documented in hospitals.,,,,,wth,,,,,My recording a nurses conversation over the phone SAVED MY LIFE,, she was constantly lieing to my pain management doctor about me/my MEDICINE,,CLAIMING I WAS FILLING IT EARLY,,, day 29,,,instead of day 31????/wth,,,,after doing a lot of paper work,.,getting all my receipts for payment of my meds,,,it was proven the pharmacy was entering all scripts a day early to be more efficient,,,WHICH I DO NOT HAVE A PROBLEM WITH AT ALL,, I hate waiting in line at the pharmacy,,,but because of this nurses lieing,,,we had to dig back into records etc,,it took us 2weeks,,,because of this nurse lieing,,,, to find out the truth,,that NO-ONE was filling any scripts early,,,no-one,,,it was just enter into the computer early to save time….but that nurse,,who had it in for me,,,claimed I was filling early,,I had recorded her over the phone,,refusing to allow me to speak to my doctor,,refusing to give me a appointment w/my doctor,,,,just being a all out b—ch,,,BECAUSE SHE DIDN’T LIKE ME,, ends up,,,in a recent e.r. surgery,,,i was in pancreatits,my gallbladder was completely calcified,and to quote the surgeon,”,your internal organs are badly beaten up,,your gallbladder looked like a dam gravel pit ,completely calcified,”.,…Now,,,if I did not record this lieing nurse 2 years earlier,,i would of been discharged from pain management w/NO MEDICINE,, for physical pain from pancreatitas,,gallstones blocking ducts,,oh and their was a lower lung collaspe,,,but discharged w/no medicine for very painful MEDICAL CONDITIONS,
    THIS IS WHY WE RECORD,,BECAUSE SOME DOCTIOS LIE,NURSES LIE,,,TO COVER THEIR OWN ASS’S,, and they do not give a dam about the patient,,,who if u wrongfully label as a addict,,or drug seeking behavior ets,,WILL NEVER EVER SEE PHYSICAL RELIEF FROM PHYSICAL PAIN FROM ANY MEDICAL CONDITION EVERY AGAIN,,,,DO U GUYS HAVE THAT RIGHT??TO FORCE PHYSICAl PAIN ONTO ANOTHER LIVING SOUL,,,BECAUSE OF YOUR LIES,,YOUR COVER-UPS,,,THIS IS WHY WE RECORD,,,’
    If any part of any hospital receives tax payers monies,,it is a public entity,,thus,,recording is allowed,,,and OBVIOUSLY NEEDED TO SAVE LIVES FROM THOSE DOCTOR/NURSES WHO CHOOSE TO LIE ON PATIENT RECORDS TO SAVE THEIR OWN BUTTS,,,,maryw

  4. I don’t really understand why it would matter as long as another patient isn’t being recorded? My son recently had to visit our Houston freestanding emergency room and we passed the time allowing him to Facetime with his Grandma, it made things a lot less stressful and before we knew it, it was time go to home!

    • this is mainly concerning health care staff being recorded but also about visitors taking film of vulnerable friends and family (say someone who’s sedated In the ICU and unable to consent) and potentially then posting them to social media. Sadly, that kind of thing happens a lot. People increasingly have no boundaries where sharing images on social media is concerned.

  5. john harrod on

    There are audio tape recorders so small and powerful they can be placed in a pants or shirt pocket and will pick up all voices. As for video recorders,there are some that can be a aimed from a purse or handbag and would never be noticed. So stop your complaining. You probably have been audio or videotaped already and didn’t know it.

    • Stop complaining? Seriously? That’s like saying “your computer has probably been hacked before so stop complaining”

      • No it’s the same as saying stop complaining about your audio or video being captured,The same as everyone’s already is all the time even unknowingly. So If we’re letting it be obvious and known that were recording there shouldn’t be a prob. at all. esp while in the ER Lobby where it’s public, Considering there’s no expectations of privacy in a public area. And in our own room recording our own medical information or a family member’s. We have the right to document/record everything we do in life. Your policies and policies like HIPPA only apply’s to the nurse’s, Dr’s n anyone contracted to work their. That’s exactly the reason the Dr. got in trouble for uploading pic’s of a patient… Period. They can only give out “our” Medical Records to us or to other Dr’s that may need them otherwise we have to even sign papers in order for them to give them out. “We” the Patient’s have Patient Privacy not the other way around. We have Patient Rights, and the Dr’s, nurse’s have to follow certain policy procedures when dealing with our Private Medical records… For OUR SAFETY. They can’t just take pic’s or video of us or any of our records and post em online or show/give it to just anyone they want. But “WE” should “always” be able to record our private information/records in our own room if we choose to. ESP our ultrasound visits and the BIRTH of our own CHILDREN!!. Nobody should have the “RIGHT” to stop a family, MOM/DAD from recording there “PRECIOUS MEMORIES”!.

      • This is medical care though, legal to record under the 1st Amendment (unless it is recording patients) and has saved many A) Lives from recording what ends up being malpractice that helped to prove (not necessarily even ((yet)) to a court) to other doctors or the police and allowed proper medication and/or care to be given because lying doctors/nurses (usually covering themselves or in retaliation for reporting them) could add bs to your files that is hard to disprove (and harder to prove that it wasnt only unnecessary but unreasonable) as well as potentially refuse pain medication or other more helpful treatments that are denied because of past, present, or possible likelihood of drug use/abuse. B) People from unreasonable burdens (usually large hospital bills) that are yours or your families responsibility because a doctor prescribed a less used or effective medication that was more expensive so they’d get more money, or any malpractice that (per the name) could’ve been prevented and both of these plus other situations caught on audio or even video that could help you or your family win litigation and take the burden of those bills off of you. Doctors are at work, not patients themselves. Though I do believe that most doctors at least try to do their best or what they can at the time, just one can literally end your life or cause you great harm and if a legal action of yours like recording can save you or others, if others recieve the same or similar treatment, then why wouldn’t any of us do so? I can tell the writer of the article didn’t do much research because A) There are professionals used to determine if a photo, audio, or video recording/clip has been altered or tampered with and are used quote frequently in court (especially when that is a primary peliece of evidence) and B) Not only failed to mention 1st Amendment Laws and the rights of citizens, but did allude to make it seem as if recording is inherently going to be negative or the intent is inherently negative which is wholly against the purpose of the 1st Amendment (being that those are 5 freedoms automatically given as a right and should be not ONLY automatically assumed lawful but that the legal exorcize of is NOT considered suspicious, unreasonable, or a breach of the peace)

  6. John E Erickson on

    In my case, prohibiting video recording in the hospital means that I can’t get medical care. I suffer from agoraphobia and the only way I feel safe outside of my house is if I am recording everything that happens to me outside of it. I would recommend considering this when adopting recording policy. If that policy prevents someone from getting care (like me), then it is not a good policy. As it is I have told everyone that I live with to not call 911 if it looks like I need to go to emergency because they won’t allow me to record my visit. My death could be in your policy makers hands.

  7. Pointing out that video recording helps patients receive justice after medical staff have committed neglect, abuse, or broken other laws such as HIPAA doesn’t create a compelling arguement *against* recording

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