March 15, 2011
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Question
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Ken,
I have a potential customer, he is a OB/GYN. He has requested that we install cameras in his exam rooms. Patients that choose not to be chaperoned create a possible liability for accusations of sexual harassment. He would like to install these cameras for his protection against a frivolous lawsuit. He is willing to post signs in the room indicating the area is video recorded.
Should I install these cameras or walk away from the job in your opinion?
Sincerely,
Tom Powers
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Answer
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Questions regarding cameras in doctor's offices come up frequently. Obviously you can't install a camera where privacy is expected. Generally privacy is expected in bath rooms, dressing rooms and bedrooms. An examination room in a doctor's office is a grey area and I think some common sense applies; you don't have to pass on the job. but certain precautions should be observed.
Cameras should not be covert but open and obvious. Signs can be used, but don't think signs are all that will be needed. The cameras should be positioned so as to view as little of the patient as necessary, and certainly not in a way that captures the patient in a compromising or embarrassing spot. Of course the purpose of the camera is to protect the doctor, and technically the patient as well, so the view will have to be compromise privacy to some degree. Focusing on the doctor is of course permissible.
By the way, audio would also be permitted if consented to. If a doctor announced that the room has recorded audio at the beginning of each examine, and the patient's consent was recorded, it would be permitted. Be certain that in an "all party" state that everyone in the room has consented.
Since Jennifer Kirschenbaum,Esq specialized in health care law, I thought I'd run this question passed her, and her focus is on the doctor and his consent forms. See her response below. She raises a great point. If there is going to be a problem with video or audio data it's going to be how that data is misused. Of course misuse can arise with a local DVR and recording device in the doctor's office, but off site monitoring and storage may be more difficult to "police". It's another consideration. Be sure to check your jurisdiction's laws because some impose penalty not only on the user [or abuser] but on the [hapless] installer. Give your subscriber instructions on the proper use - lawful use - of video and audio data.
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To Tom and all:
Certainly patients should be required to sign written consents. HIPAA is
invoked whenever "individually identifiable information" is involved. Here,
a patients face and body are certainly "individually identifiable". Will
this be remote monitoring or local DVR with only the doctors office having
access? If its only local access, maybe tell the installer to have a
disclaimer/waiver signed. If its remote, walk away unless there is a great
indemnification provision because there is no guarantee the doctor will get
appropriate disclosures.
Jennifer Kirschenbaum, Esq.