Covert video surveillance can be useful in abuse cases, but some reason for caution
Covert video surveillance can be useful in abuse cases, but some reason for caution
Policies and right equipment are keys to success
Risk managers should consider using covert video surveillance (CVS) when patient abuse is suspected and not be deterred by worries about invasion of privacy or liability, says Mary Anne Hilliard, JD, BSN, CPHRM, chief risk counsel at Children's National Medical Center in Washington, DC. While those concerns are valid and must be addressed, CVS is too valuable a tool to let it go unused because of fears that it might cause legal difficulties.
Hilliard has worked in risk management at the pediatric facility for 10 years. In that time, she has used CVS several times to investigate suspected cases of Munchausen's syndrome by proxy (MSBP), in which parents or other caregivers secretly injure a child or cause illness to feed their own need for drama and attention. Proving MSBP can be very difficult because the perpetrators are careful to hide their actions and often know how to simulate medical conditions that could be attributed to other causes, Hilliard says. (See box below for research regarding the use of CVS to detect MSBP.)
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Hospital shows value of CVS in abuse cases In 1993, Children's Healthcare of Atlanta at Scottish Rite added rooms to perform inpatient covert video surveillance (CVS) of suspected cases of Munchausen's syndrome by proxy (MSBP). A report seven years later concluded that the secret cameras can be invaluable in proving that children are being abused.1 Forty-one patients were monitored from 1993 to 1997 and then their records were reviewed retrospectively by a team of physicians, risk managers, and social workers. They found that a diagnosis of Munchausen's syndrome by proxy was made in 23 of 41 patients monitored. CVS was required to make the diagnosis in 13 (56.1%) of these 23 cases and was supportive of the diagnosis in five (21.7%) cases. In four patients, the surveillance was instrumental in establishing innocence of the parents. The analysis revealed that Munchausen's syndrome by proxy was more common in Caucasian patients than in other ethnic groups at the hospital. "Fifty-five percent of mothers [suspected of MSBP] gave a history of health care work or study, and another 25% had previously worked in day care," the report said. "Although many of the caretakers fit the profile of MSBP, such as excessive familiarity with medical staff, eagerness for invasive medical testing, and history of health care work, these characteristics were not sensitive indicators of MSBP in our study. Even when present, they were not sufficiently compelling to make the diagnosis." The Scottish Rite team concluded that CVS is required to make a definitive and timely diagnosis in most cases of MSBP. "Without this medical diagnostic tool, many cases will go undetected, placing children at risk," the report said. All tertiary care children's hospitals should develop facilities to perform CVS in suspected cases." Reference 1. Hall DE, Eubanks L, Meyyazhagan S, et al. Evaluation of covert video surveillance in the diagnosis of Munchausen syndrome by proxy: Lessons from 41 cases. Pediatrics 2000; 105:1,305-1,312. |
She receives about two inquiries every year regarding staff and physician suspicions that a child is the victim of MSBP. When physicians and staff suspect MSBP, CVS sometimes is the only option for proving or disproving that that the child is intentionally being harmed. Hilliard must approve any requests to conduct surveillance, but she says she does not shy away from the strategy.
MSBP isn't the only use for CVS. Nursing homes sometimes utilize CVS because of the patients' particular vulnerability, says Andrew R. Rogoff, JD, a partner in the Philadelphia office of the law firm Pepper Hamilton, who has nearly three decades of litigation experience in the pharmaceutical and health care industries.
Many nursing homes have been sanctioned for putting their elderly residents at risk, and more cases of abuse go unreported, so CVS can be an attractive option for proving abuse by staff, notes DaQuana L. Carter, JD. Carter is an associate with Pepper Hamilton who specializes in the area of health effects litigation. On the other hand, Carter says, residents also experience injuries that are not the fault of their caregivers.
It is not unusual for a family member or concerned staff to suggest CVS as a possible solution, but as the risk manager, how should you respond? Will the tapes provide ammunition for a lawsuit? Will the presence of cameras in the rooms cause your staff to quit? Will the video invade your patients' or your employees' privacy?
CVS can be a valuable tool, but it does come with some thorny issues for risk managers to consider, Hilliard says. The legality of secretly videotaping is well established when abuse is suspected, she says, but it still is a good idea to check with your counsel about state and local laws that may restrict its use. A subpoena usually is not required, but Hilliard says a conservative approach would be to get one from the police anyway to provide more support if the targets choose to sue later.
Another issue to consider is how you will monitor the videotaping. Will you simply turn the cameras on and review the videotapes at a later time? Or will you have the cameras monitored in real time? The answer may depend on the circumstances, especially the nature of the suspected abuse and how much an immediate intervention would help, Hilliard says.
"If you end up with a videotape that shows abuse and no one was watching the cameras so they could intervene, you could end up with allegations of failure to intervene," she says. "But it can be demanding to have someone sit and monitor that feed 24 hours a day, so that's an important decision. Sometimes when the abuse happens, it is quick and the parents call for medical help immediately anyway, so monitoring is not always absolutely necessary."
At Children's National Medical Center, the use of CVS has not yet proven MSBP in any suspected cases, but Hilliard points out that many other facilities have been successful in saving children from continued abuse by secretly videotaping. In the cases in which her facility has used CVS, she says the abuse could not be proven because the camera did not cover all angles of the room; thus, the abuse still could be hidden. In MSBP, the parent often hides the abuse by holding the child tightly or blocking others' view with his or her own body.
"The lesson we learned was that the equipment is a key element to making this work," Hilliard says. "You've got to have enough cameras to cover all parts of that room from different angles so you can see what happens everywhere. That might mean six or seven pinhole cameras hidden in the room."
For the cases at Children's National Medical Center, Hilliard authorized the security department to install a secret camera in the patient's room. Hilliard notes that some pediatric facilities have constructed special inpatient rooms that are equipped with multiple cameras, all hidden and unknown to patients and family. When MSBP is suspected, the patient is transferred to that room under some pretense. Hilliard says that is a good solution if you have the capital for constructing such a room. She notes that the cost of such a room can vary greatly depending on whether you need to construct a room from scratch to accommodate the equipment or can retrofit an existing room. Even in the best case, in which you retrofit a room using the labor of your own security and facilities staff, setting up a CVS surveillance room probably will cost several thousand dollars for the necessary equipment.
A good relationship with the local child protective services agency and the local police department also will prove helpful. You may need their support during and after the videotaping, especially if you find evidence of abuse. Hilliard suggests meeting with those representatives beforehand to discuss the best procedure for contacting them with suspicions, and to establish a rapport.
Surveillance policies needed
Patients and family members should be reminded in admission and consent forms "that they don't enjoy the same privacy in a hospital setting that they might at home, that there are times when the diagnostic process might involve videotaping," Hilliard says. Rogoff and Carter agree that risk managers should develop policies about video surveillance.
"They can model their policy after a Texas statute that allows electronic monitoring in nursing homes with written consent by a resident or a legal guardian of the resident," Rogoff says. "As in the Texas statute, the health care provider can add a provision to the consent form to release the institution from civil liability arising from any privacy violation directly related to the use of surveillance." (For information on how to access the Texas statute, see resource information at end of article.)
Rogoff suggests posting a notice to visitors and employees at the entrance of the facility and, if the surveillance is not secret, outside the patient's room.
Hilliard's policy states that CVS will only be used when two physicians document a reasonable suspicion of MSBP (or other abuse that could be detected on videotape) and other less intrusive diagnostic steps already have been exhausted. The policy also explains exactly how the orders must be written, which includes not referring to the secret videotaping in patient records that can be viewed by the family or immediate caregivers, who might tip off the family. After videotaping, the policy calls for the destruction of any tape that does not show abuse.
A well-crafted policy can protect the hospital from many of the legal issues involved with CVS, Carter says.
"These established policies will make it easier for patients and legal guardians to raise concerns with administrators and reduce the chance of employer liability," Carter says.
What is the bottom line for risk managers? If patients or their families claim that an abusive situation exists, and the risk manager believes the only way to prove the innocence of staff members and avoid costly litigation is by means of CVS, it can
be legally utilized as a last resort, Rogoff says. Carefully implemented, CVS can be integral in uncovering the truth behind accusations of patient abuse, which protects caregivers and their patients, he says.
Hilliard is an even stronger proponent, saying legal concerns should not prompt risk managers to shy away from CVS when it could protect patients from abuse. The easier path is to say the liability risks are too high and forbid surveillance, but that could lead to continued abuse of your patients.
"This is something that we as the risk management profession should be advocating for, speaking as one voice," she says. "This is an area where people will look to risk management for advice, and we should be leaders. Don't be afraid to take some risks to do the right thing."
Sources/Resource
For more information on video surveillance in health care, contact:
- DaQuana L. Carter, JD, Pepper Hamilton, 3000 Two Logan Square, 18th and Arch Streets, Philadelphia, PA 19103-2799. Phone: (215) 981-4582. E-mail: [email protected].
- Mary Anne Hilliard, JD, BSN, CPHRM, Chief Risk Counsel, Legal and Risk Management Department, Children's National Medical Center, 111 Michigan Ave. N.W., Washington, DC 20010. Telephone: (202) 884-4550.
- Andrew R. Rogoff, JD, Pepper Hamilton, 3000 Two Logan Square, 18th and Arch Streets, Philadelphia, PA 19103-2799. Phone: (215) 981-4881. E-mail: [email protected].
The Texas statue on electronic monitoring can be found online by going to the web site tlo2.tlc.state. tx.us. Select "Texas statutes" and then the "search" tab. In the search box, enter "Health & Safety Code Chapter 242. Convalescent and nursing homes and related institutions subchapter." Open that document and go to Subsection 242.841.
Risk managers should consider using covert video surveillance (CVS) when patient abuse is suspected and not be deterred by worries about invasion of privacy or liability.Subscribe Now for Access
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