Webinar Recap 2

In light of current events, SCAHRM has turned to an all-webinar format for our educational events.  Recent speakers have brought attendees some innovative and insightful programs.  We are providing the following recaps, as prepared by various SCAHRM board members so you can get a taste of what we have been providing.  All webinars are recorded.  If you did not previously register for a webinar, but you would like to hear it please contact [email protected] to register and receive the recording.

9/2/2020 – Caught on Tape: Mitigating Damages in the Age of Cell Phones and Granny Cams

Constance Endelicato – Partner, Wood, Smith, Henning & Berman, LLP
Geri Luebeck – Compliance and Patient Relations, Providence Saint John’s Health Center

Recap prepared by:
Terrell Muldrow
SCAHRM Education Committee Member
Risk Specialist, Keck Medicine of USC

What happens when a patient records the provider? Or when the provider records the patient? How about when the provider records themselves proving care, let alone, make a post on social media?  These are valid questions that EVERY healthcare facilities must answer.  SCAHRM’s September 2nd webinar, presented by Constance Endelicato, JD, and Geraldine (Geri) Guzman-Luebeck, focused on how the usage of cell phone, granny cams and social media technology can expose hospitals to potential claims and litigations that arise from the content captured by these audio and video recordings as well as posts.  Constance and Geri showed real-life scenarios illustrated the risk of videographic evidence followed by discussions surrounding the concerns with the ramifications, actions and outcomes relating to the resolution of these occurrences.

What Happens When…
Geri explained that recordings are captured one of two ways, inadvertently and intentionally.  Inadvertent recording is usually accidental and occurs, as an example, when a patient unknowingly audio or video records a conversation or interaction with a provider without malicious intent.  However, intentional recording is when the patient knowingly and without the consent of those present, records a conversation or interaction with intent to use or distribute the recording, oftentimes with malice.

Patients aren’t always the ones behind the recording.  Providers have been “caught in the act” recording unprofessional behavior while providing care or treatment.  As one video showed, a surgeon was recorded mocking a patient, who was prepped and sedated for surgery, while pointing out their flaws with laughter.  Another video showed a physician dancing and singing around the operating room, for “marketing purposes” and uploaded the video to social media.  In another video, a staff nurse was posing next to a very ill patient.  Although the staff perceived these actions as harmless, the patients were not pleased.

In the above occurrences, Geri described that the impact of these recordings and photos and how they can be monumental, disrupting the trust of the patient-physician relationship and/or the health system.  These behaviors can lead to Medical Board investigations and even possible, criminal investigations.  Some of the best methods of prevention emphasized in this webinar is to employ policies against cameras and recorders, staff training on cell phone awareness and always maintain professionalism.

When a provider records themselves while providing patient care or treatment, concerns with invasion of privacy and HIPAA rise to the surface.  As above, this too can create a strain on the patient-provider relationship which may lead to a deficit in patient safety and trust.  Geri recommended not to engage in such recordings unless FULL disclosure and written consent from the patient is obtained and stressed that disclosure of patient personal health information (PHI) to media without prior consent is forbidden unless the patient is unidentified or incapacitated, doesn’t object to facility directory or is a training or public relations video.

Granny Cams…
Constance explained that the use of “granny cams”, especially in skilled nursing facilities (SNF), is increasing.  The use of the “granny cam” in the SNF setting is currently under debate to determine whether the installation and use invades privacy or violates HIPAA even though the intent of usage is to discourage abuse and neglect and promote quality of care and safety.  As a result to the absence of Federal guidelines or laws relating to the usage of “granny cams”, many states have set their own parameters on how to and when to use these cameras and who, if anyone, should be made aware that a camera is in use.  Regardless of the parameters set, each state MUST continue to maintain compliance with HIPAA and Federal Wiretapping Laws.

Mitigating Risks…
Considering the types of claims and litigations that may arise from these recordings and how best to defend the claim, Constance suggested creating separation of invasion of privacy and the 1st amendment rights, review HIPAA and state laws.  When defending the hospital, she revealed that tracking and trending is pivotal for identifying problem-provider(s) or systematics deficits.  Asking important questions, was this an isolated event? Was the event a single act or group involvement? Are there protocols and policies in place that promote safety? Is training available and up to date with the latest standards? All of these questions will help to establish a baseline.

Public Relations Considerations…
Upholding the organization positive image can be tough when faced with damaging evidence such as audio and video recordings.  It is ideal to engage the Public Relations Department (PR) early on to notify key stakeholders, appoint a speaker, mitigate any damage, and to monitor, manage and respond to any attacks against the organization.  When developing action plans in response to the misconduct, acknowledging the occurrence and taking ownership/responsibility should be a priority to preserve public opinion.  Shift action will demonstration compassion and sincerity for correcting any wrong.

To prevent future mishaps with cell phones, “granny cams” and social media, healthcare systems should create an awareness campaign, develop policies or protocols for managing such occurrences, provide orientation and training to all personnel and keep this topic in discuss.  In the Age of Advanced Technology and Social Media, we must be aware of not only our surroundings but how we, as healthcare professionals, conduct ourselves in front of patients and families, amongst other personnel and behind closed doors.