A nurse accidentally discovers a recording of himself giving patient care posted on the Facebook page of a patient’s family member. Another nurse receives a notice that a State Board of Nursing complaint has been filed against her for disparaging comments she made about a patient, unaware that the patient was recording her on his cellphone.
As smartphones and social media have become ubiquitous, the number of recordings posted online has grown exponentially. Most nurses now know the dangers of posting patient-related content online, but what happens when the roles are reversed and a patient or a patient’s family member posts videos, photos, or content about the nurse? What rights does the nurse have? And what happens when a voice-control device captures a nurse’s inappropriate comment? Is the nurse at risk?
Understanding the issues surrounding a patient’s recording can help you avoid possible damage to your career and emotional health.
Ubiquitous Recording
Recordings are occurring in a wide variety of settings. Patients and families may be recording care in hospitals, long-term care and assisted living facilities, and the home. Patients or families may record for a number of reasons, including:
- To aid in recall of medical information: It can be difficult to remember all the details shared during a healthcare encounter.
- To share information with family or other caregivers: Especially helpful for complex medical situations.
- To document the quality of care: May be used as evidence in case of suspected negligence or malpractice.
Requirements under the law may include obtaining the patient’s roommate’s consent, posting a sign indicating that recording is in progress, and making the resident responsible for camera equipment costs.
In the home, voice-control or “smart speaker” devices such as the Amazon Echo or Google Home may not just be reminding patients to take their medication; they may also be recording what people in the room are saying. Additionally, home security camera systems such as Ring or Google Nest may be recording people as they arrive, leave, and move about the home.
Unfortunately, nurses may not know they are being recorded. A survey of the UK public found that 15% had secretly recorded a clinic visit. The most common reason was simply to improve understanding of medical information and to share with family members.
In the US, these types of recordings may violate wiretapping laws. The federal wiretapping laws (18 U.S. Code § 2511) require only one party’s consent to a recording, but many states have “all-party” requirements, meaning all parties must consent to the recording. Typically, the more restrictive state law would take precedence over the federal law.
When Private Goes Public
When evidence of healthcare professionals behaving inappropriately goes public, it can result in significant professional harm, including possible legal action, for those involved. In 2015, for example, a patient used his phone to record post-discharge instructions for a colonoscopy. He neglected to turn off the recording and was later shocked to hear disparaging comments made by the surgeon during the procedure, while the patient was under anesthesia. The patient subsequently won a $500,000 lawsuit.
Failing to speak up when inappropriate behavior occurs does not protect you from legal action. For example, the anesthesiologist in a video of a surgeon dancing during surgery has been named in a lawsuit.
In the Courts
The admissibility of recordings in court cases varies by jurisdiction, and legal parameters surrounding these issues are still being developed. It is also important to be aware that federal and state legal thresholds may differ, which can affect court decisions.
Recordings may also impact the types and amount of damages awarded as a result of legal action because of the perception that what is said, or the tone of voice used, in the audio or video clip reveals a lack of “feeling” by the defendant. This perception can also be an issue in settlements.
For example, if minor patient harm occurred but the nurse is recorded as making negative comments about the patient, there might be a push for a higher payment.
Self-protection
Nurses can take steps to protect themselves from the negative consequences of being recorded. (See Reducing recording risks.)
Keep in mind that Provision 5 of the American Nurses Association Code of Ethics for Nurses with Interpretive Statements notes that “…the same duties we owe to others we owe to ourselves.”
You should expect patients and families to respect your privacy in the same way you respect theirs. Setting boundaries for recording is a reasonable step. This, combined with not making inappropriate comments or taking inappropriate action that could be detected by recording devices, will help you avoid litigation while providing quality care.
Reducing Recording Risks
Both organizations and individual nurses can take steps to help avoid legal action stemming from recordings made by patients and families.
Organizations
- Establish policies regarding the use of cell phones, tablets, and other recording devices by patients and families.
- Educate staff and volunteers about photo and video rules and policies.
- Post notifications for patients and families to see that restrict the use of cell phones and other devices capable of recording.
- Provide patients and families with written information on organizational policies regarding recording.
Nurses
- Survey the room before delivering care. Note whether any cell phones, tablets, or voice-activated devices are present.
- Politely inquire about their reasons for recording and express any concerns you might have.
- Consult with supervisors or legal counsel if you are unsure how to proceed or believe the recording violates policies or laws. Seek guidance from your charge nurse, supervisor, or legal team.
- Maintain professionalism: Regardless of whether or not you are being recorded, strive to remain calm, professional, and empathetic in all interactions with patients and families.
- Do not pose for photos with patients or patient family members; these photos could end up on social media. If a family member is recording patient care, ask them to stop, explaining that they are violating the patient’s right to privacy under the Health Insurance Portability and Accountability Act.
- Report inappropriate social media posts about you. If you see such a post, take a screenshot or record the posting (for evidence in any potential court case) and report the posting to the social media outlet.
- If you become involved in a lawsuit related to a recording showing you engaged in inappropriate behavior, be honest with your insurer and attorney about the entire scope of the recording. For example, just because only part of a video was posted online doesn’t mean that additional footage won’t appear during a court case.
- Keep in mind that good communication helps reassure patients and families that quality care is being delivered, reducing the need to record to ensure the patient is receiving excellent care.
This article is provided for general informational purposes only and is not intended to provide individualized advice.
