Cameras in Surgery Pit Patient Privacy Against Hospital Safety

The women suing a California hospital for recording their private medical procedures, including hysterectomies and surgeries after miscarriages, say they never agreed to be filmed.

But it was all there in writing.

Eighty-one women allege the hospital filmed them partially robed on operating tables, both conscious and unconscious, during medical procedures. The patients claim in a lawsuit filed last month that the hospital unlawfully invaded their privacy, but health-care lawyers say maybe not.

Like most hospitals, the La Mesa, Calif.-based Sharp Grossmont Hospital requires its patients to sign an admission agreement before being treated.

The admissions form is many hospitals’ answer to federal and state requirements to notify patients about everything from payment obligations to privacy rights. At Sharp, it’s also where patients are told they can be recorded.

The recordings in question took place between July 2012 and June 2013 while the hospital was investigating whether an employee had stolen propofol, a powerful anesthesia drug, from drug carts in operating rooms in the women’s center.

Surveillance Not Barred

The federal health-care privacy law doesn’t outright prohibit surveillance, said Reesa Benkoff, a partner at Wachler & Associates P.C., a Michigan-based law firm that represents health-care providers.

“Videotaping in and of itself doesn’t always require consent,” she said.

Hospitals are allowed to film in general areas where patients lack a reasonable expectation of privacy, like waiting rooms and parking lots. But Benkoff said there may be instances in more private areas where videotaping also would be allowed, for example, if the cameras were in place for patient safety.

Health-care providers need to consult with their lawyers if cameras are being put in areas where patients have a reasonable expectation of privacy, she said.

When a woman first sued Sharp on behalf of herself and other similarly affected woman in 2016, the hospital claimed she consented to being filmed when she signed the hospital’s admission agreement.

The consent language, the hospital said, was in the first line of the first paragraph in the two-page form.

“You consent to all hospital services rendered under the general and special instructions of your physician(s), and to the taking of photographs and videos of you for medical treatment, scientific, education, quality improvement, safety, identification or research purposes, at the discretion of the hospital and caregivers as permitted by law,” says the agreement, a copy of which the hospital provided to Bloomberg Law.

A state court judge refused to certify the class in 2017 and plaintiffs’ attorneys have been working since then to identify all the women who were recorded. The new complaint says approximately 1,800 patients were filmed.

Sign Here

Patient admission agreements are standard among hospitals, but Patterson Law Group’s Allison Goddard, who is representing the women in the case, said they can’t be used to violate patient privacy.

“How frightening for them to say that gives them permission to film you without you saying anything about it,” she said in an interview.

Privacy rights advocates argue patients are forced to sign all kinds of documents like this in times of duress without fully understanding what they’re agreeing to.

“They shove it under your face and say you have to sign it to come in,” said Deborah Peel, founder and president of Patient Privacy Rights, a Texas-based organization. “They are designed to be deceptive and misleading.”

But attorneys for health-care providers say these types of forms aren’t unique to the health sector. Banks and even social media sites use similar consent forms.

“When you have a patient signing an agreement saying, ‘I have read and I agree to the terms in this form,’ they should be held at their word,” said Emily Black Grey, who manages the health-care section at Breazeale, Sachse & Wilson, LLP, a Louisiana-based law firm.

Guard That Tape

Sharp may be in the clear for taping the women, but health privacy lawyers say questions about how it handled and stored the footage show potential legal vulnerability.

The lawsuit claims the hospital stored the recordings on desktop computers that could be accessed by multiple users—some without the need for a password—and failed to track who accessed them. The hospital also allegedly deleted half of the files and can’t confirm how they were destroyed or if appropriate steps were taken to ensure they are unrecoverable.

Those could be violations of the Health Insurance Portability and Accountability Act, which requires health care providers to safeguard a patient’s electronic health information.

Privacy rights lawyers say hospitals need to be careful when collecting personally identifiable information, which can include video surveillance.

“We see constant examples of hospitals that trip up when they collect data for one purpose and then share it for another purpose that was never agreed to by the patient,” said James Hodge Jr., a professor of public health law and ethics in the Sandra Day O’Connor College of Law at Arizona State University.

Sharp’s parent company apologized on April 4 in an open letter to the San Diego community for any distress its investigation of the propofol thief caused the women they recorded. Chris Howard, president and CEO of Sharp HealthCare, said the surveillance methods employed in that investigation are no longer in use, and the hospital has made changes to its protocols to ensure the situation is not repeated.

Grey said hospitals should use this lawsuit as a case study in how to carefully conduct surveillance.

“I’m not convinced by this lawsuit that the hospital was inappropriate in taking that action,” she said. “Could they have done better? Probably, but I can see a situation where that would be the only way to catch the bad guy.”

The hospital has not yet filed a brief in court replying to the latest complaint and John Cihomsky, a spokesman for Sharp, said the hospital would not comment on an active legal matter.

The case is Lincoln v. Sharp Healthcare, Cal. Super. Ct., No. 2019-00016922, filed 3/29/19.