Smile, You Are On Candid Camera

While the doctor is busy treating patients, the patients may be busy documenting the doctor on camera. In this day and age when virtually every cell phone and tablet contains a video or photo camera, it is simpler than one might think.

Whether parents or friends who accompany patients to procedures involving examinations, anesthesia or other procedures want to make a recording for their family history, become the next internet sensation or for other reasons, doctors should think twice before permitting cameras in the office. Such use of cameras, even if agreed to it, implicate privacy concerns of staff members or other patients who may not have consented to participating in the video.

For example, here is just one routine office visit video that garnered over 125K views on YouTube. The ten minute long video, apparently shot by the father, features a nurse and a doctor performing a physical, an EKG and an ultrasound examination of a young boy.

Another reason to prohibit the use of cameras in the office is to protect against claims of professional misconduct. Surreptitious audio or video recordings of conversations between a patient and his doctor or patient treatment may later end up in the patient-plaintiff’s malpractice suit against a doctor. It should be noted that some state laws treat surreptitious video recordings differently from audio recordings, setting higher consent standards for video recordings. For purposes of audio recordings, however, both New York and New Jersey have “one-party consent laws” which generally mean that conversations can be recorded if the person making the recording is a party to the conversation. (See N.Y. Penal Law §§ 250.00, 250.05; N.J.S.A. §§ 2A:156A-3, -4).

Preventing the introduction of the recording during litigation could be challenging with the outcome depending on the specific facts in the case. For example, recently, Amednews, the news reporting arm of the American Medical Association, discussed a case in Ohio, also a one-party consent state, in which the Appellate Court permitted a plaintiff to use a secretly recorded audio made by a family with the hospital’s chief medical officer, where he made sympathetic comments and admitted fault to the family.

If a doctor wants to avoid having unauthorized recordings made in the office, one possible way to address is to have a policy, visibly displayed to patients and their friends and family, prohibiting the use of cell phones and cameras in the office.

Here is yet another amateur video showing a patient’s weight loss surgery follow up conversation with a doctor. This video is just one among hundreds and thousands of such videos just a few clicks away on YouTube and other video sharing and social media web sites.