Uses and ethics of cameras in ambulances

By Allison J. Bloom

Future uses of cameras in EMS

It is no secret that if it’s cool and it’s new and it will make our jobs easier, we want it! Especially if it is something already in use by our public safety counterparts. But, while the constraints discussed above may seem far-fetched because law enforcement agencies use dash and body cameras and microphones all the time, and they don’t need to get consent or put up notices, the reality is that in most states, there are exceptions written into recording laws for law enforcement activities.

Since EMS is not law enforcement (even though there are law enforcement EMS units), the exceptions to the recording laws currently on the books most likely will not apply to EMS, and would require legislative changes to allow EMS to record patient encounters.

Another barrier to recording patient encounters is that although the field of video conferencing and multimedia messaging technology is advancing quickly, there is currently no consensus in the health care community on how it should be used most effectively. There are, however, a number of studies and initiatives currently taking place, including the National Public Safety Telecommunications Council’s EMS Committee and the development of a new Nationwide Public Safety Broadband Network (NPSBN) being constructed by FirstNet.

The EMS Committee is currently studying the use of prehospital (EMS) mobile telemedicine and is examining the role of technology in the EMS field. Specifically, the EMS Committee will be developing case studies and creating recommendations on how new technology and applications can improve pre-hospital care, including developing operational use cases for prehospital telemedicine (video and picture images).

For example, is there a benefit to having a paramedic stream live video of a burn patient to the emergency department or is a snapshot picture sufficient to visualize the severity of the injury? Would a video clip of a field stroke assessment be sufficient for the ED or neuro team or would live video be better? Would pictures or a video clip from an accident scene help the trauma team prepare? Would EMS system medical directors or online medical control physicians prefer to visualize and interact with a diabetic patient in their home before authorizing an EMS crew to not transport the patient for evaluation, or simply to document a refusal?

FirstNet, in turn, will allow EMS agencies to access a dedicated high-speed data network that will allow secure live video, pictures, text, patient data, and vital signs telemetry to be shared with receiving physicians, hospitals, and trauma centers, in addition to automated crash telemetry sensor data that is becoming standard on many vehicles.

Naturally, EMS agencies are especially interested in how the NPSBN being constructed by FirstNet will be used, and it bears watching closely. However, the work of both the NPSBN and NPSTC’s EMS Committee are still in their infancy, and it will be a while before there is consensus on best practices for recording and transmitting audio and video during EMS patient encounters. Which brings us back to the question of what can you do today in terms of recording patient encounters?

Current practical uses of cameras in EMS

First, keep in mind that there is a difference between live-streaming audio/video and recorded audio/video. On the one hand, live-streaming audio/video has potentially great benefits, such as telemedicine or live real-time consults with remote physicians or medical specialists. If live-streaming is truly being done for telemedicine purposes, chances are it is being done as a consult for the patient, and hopefully not for the purpose of the medical control physician “checking up on” his/her paramedics. However, true live-streaming audio/video is not recorded in any way, so if someone did want to record or capture the live-streaming consult, the same recording rules would apply.

What about on-board ambulance cameras in the patient compartment which have the capability of manually-activated recording? These types of cameras have a live-feed monitor in the driver’s compartment so the driver can see what is taking place behind them in the patient compartment. Many also have recording capability; in the event the driver sees or hears something suspicious, they can reach over and hit a recording button which will then capture 20-30 seconds before and after the recording, as well as the length of the actual recording itself.

Legal considerations when recording

Many EMS agencies already use these devices to protect the safety of their personnel, as well as for patient safety purposes. As with any other recording, proper notification in accordance with your state’s laws must be provided that video monitoring and/or recording is in use in the patient compartment, and if your state requires consent to record, then proper policies, mechanisms, and controls need to be in place to obtain that on a case-by-case basis.

Also, once recorded, even if the recording was made for safety or quality assurance purposes, and even if the focus of the recording was on the caregiver and not the patient, the recording becomes part of the patient’s medical record and must be appended to it accordingly.

Finally, everything is potentially “discoverable” in a lawsuit. The real question is whether something which is discoverable due to its responsiveness must be disclosed, or whether it is protected from disclosure due to some exception or privilege in the law. These are questions that only an attorney can answer for you, but keep in mind that there may very well be mechanisms out there, including the Patient Safety and Quality Improvement Act (PSQIA) of 2005, which may provide protection from discovery for certain reports and other documents which are generated as part of a formal patient safety and quality improvement process in conjunction with a Patient Safety Organization (PSO). However, even with the protections afforded by participation in a PSO, the “raw” audio and/or video recordings will most likely still be discoverable because they “contain objective facts gathered contemporaneously with an event” which are not entitled to privilege protections under state or federal law.

So, before you start thinking about creative “work-arounds” to the laws in your state, such as playing a recorded message over the ambulance loudspeaker that “this call may be recorded …” or adding yet another patch to your uniform which says “Video Recording Device in Use” just below your ID badge (ideas which have been suggested in social media and group discussion boards) … think again!

Remember that just because the technology makes something possible, it does not mean that it is the right thing to do. All it would take is for one video of a patient care encounter to find its way into social media or the internet, or one lawsuit holding that the patient was not properly notified or did not properly give consent, and the whole premise of recording calls for positive purposes, such as training, quality assurance, or telemedicine, will be lost.

This article scratches only the surface. Research your state laws regarding audio and/or video recording, and consult with an attorney who is knowledgeable in such matters to review your agency’s specific needs and obtain appropriate advice on these and other related matters before investing in cameras for your ambulances and personnel and implementing new technology.

Read Part 1

This column is not intended as legal advice or legal counsel in the confines of an attorney-client relationship. Consult an attorney for specific legal advice concerning your situation.

References

1. Krusac v. Covenant Medical Center, Inc., (2015 Michigan Lexis 923)

About the Author

Allison J. Bloom, Esq. is currently an attorney in private law practice in the field of EMS Law. Her practice is focused on providing risk management and legal services to EMS and Fire agencies, concentrated around governance, legal and regulatory compliance, Records and Information Management (RIM) and Information Governance (IG) compliance, ethics, electronic discovery, technology, and corporate and business law. Allison is a nationally-recognized author and speaker and lectures frequently on EMS legal topics. She is also currently certified as an EMS provider in her home state of Connecticut. Contact her via e-mail at allison.bloom@abloomlaw.com.