Cell phone cameras are creating liability risk for health care facilities

Cameras have been used by employees violating vulnerable patients

Nearly everyone carries a cell phone these days, and a large proportion of those phones include cameras that can be used to take photos quickly and quietly. But consider this: If you wouldn't allow employees or visitors to walk around a patient care area with big, traditional cameras hanging around their necks — and no risk manager would — then, why would you allow cell phone cameras?

Some risk managers are realizing that cell phone cameras should be restricted and closely monitored in a health care environment. Exactly how to restrict them can be a difficult decision because it is impractical to totally ban the presence of cell phones, but risk managers must take action, says Raylene T. Filley, JD, senior managing director of risk management at Rady Children's Hospital in San Diego. Filley knows the risk of cell phone cameras because an employee used one to record his sexual assaults on very young, unconscious patients at that facility. A second incident at Rady, involving sexual abuse of children and photos, also revealed weaknesses in protecting young patients from child predators. (For the background on Filley's experience with this issue, see box below.)

Sex assaults show risk of cell cameras

On July 25, 2007, a former respiratory therapist at Rady Children's Hospital in San Diego was sentenced to 45 years and eight months in prison for sexually abusing young patients and using his cell phone camera to record the crimes.

The case was one of two involving sexual assault on children that underscores the need to protect the youngest patients from predators and how they can use cell phones to surreptitiously record their acts. The first incident involved a respiratory therapist, 55-year-old Wayne Albert Bleyle, who pleaded guilty recently to molesting young, brain-damaged patients. He had worked at the hospital for 25 years, says Raylene T. Filley, JD, senior managing director of risk management at Rady. He admitted to eight counts of forcible lewd acts upon a child and four counts of exhibiting a minor in pornography, using pictures he took with his cell phone.

Bleyle was arrested in March 2006 after authorities traced child porn Internet traffic to his home computer. Prosecutor Laura Gunn, JD, told a judge then that Bleyle targeted children who were "the most brain-damaged, most comatose, most nonverbal — children who could never say anything about it." Bleyle admitted abusing four specific patients, including a 2-year-old girl, and he told investigators that he had abused so many children he had lost count.

Investigators reported to the court that they found images on Bleyle's computer and cell phone that he had created himself using children at the hospital.

A month after Bleyle's arrest, another Rady employee was charged with molesting a comatose toddler patient and transmitting child pornography on the Internet, Filley says. It was not proven that the images were of patients at Rady. Christopher Alan Irvin, a 32-year-old who had been a nurse at the hospital for a year and a half, pleaded guilty in September 2006 and was sentenced to 14 years and eight months in prison.

"We have learned that any time you have kids present, and especially these kids who are the most vulnerable, you are going to have people try to gain access to them for the worst reasons," Filley says. "The presence of a cell phone camera just gives them one more way to commit their crimes and invade that child's privacy."

The hospital has lawsuits pending from the two cases, Filley says. Rady immediately reported the incidents to the California Department of Health Services and was cited for a deficiency. Filley notes that any incident of inappropriate touching automatically results in a citation.

Changes made to protect kids

In response to the sexual assaults involving cell phone cameras, Rady implemented strict controls on the devices, as well as making other changes to policies and procedures.

"We are probably way over the top in terms of standard practices on this issue. We wanted to set the bar very high," Filley says. "The fact that we had this happen twice, back to back, really drove home the point that there was more we could do to enhance the safety of our patients."

Filley says the hospital began making changes within two months of the first staff member's arrest. Hospital officials determined that it was impractical to prohibit visitors from bringing cell phones into the hospital, because that would require searching visitors at the door. But they decided that other changes were necessary, such as prohibiting staff from using their personal cell phones in patient areas. (See box below for the changes implemented at Rady.) Rady has a zero-tolerance policy for violations and infractions could result in discipline, including dismissal, Filley says. Having good policies and procedures, and policing them strictly, can have a significant impact, Filley says.

Hospital restricts cell phones after assaults

After two incidents of sexual assault on young patients, Rady Children's Hospital in San Diego implemented several changes to policies and procedures. These are the changes at Rady:

  • Staff are prohibited from using any cell phone in patient care areas unless they are hospital-issued phones. Some staff, such as charge nurses, need to have cell phones at work, but the phones provided by the hospital do not have cameras, says Raylene T. Filley, JD, senior managing director of risk management. Staff are allowed to receive personal calls, within reason, on the unit's phone lines. They are allowed to bring their cell phones to work with them but they must be stored in their lockers and not taken on the patient care units. They may use their personal phones on breaks in public and in nonpatient areas of the hospital.
  • Personal cameras may not be brought onto hospital property by staff or physicians. While it was considered impractical to prohibit staff and physicians from bringing cell phones to work, Rady officials decided they could completely ban any other type of camera. The hospital provides digital cameras for clinical use.
  • Standard privacy curtains in patient rooms were replaced with a type that has see-through mesh on the top third. This type of curtain shields the patient in the bed from view, but any adult standing the room can be seen.
  • A new policy requires that privacy curtains in patient rooms be left open most of the time. If the curtain must be closed, the policy requires that at least two adults be present behind the curtain. The adults can be any combination of physicians, staff, and parents. This policy not only protects the patient from harm, but protects the staff or physician from false accusations.
  • The hospital developed a child safety training program. All staff and volunteers are required to complete a one-hour training program on child victimization and patient safety, developed with assistance from local child welfare agencies, the National Center for Missing and Exploited Children (www.ncmec.org), former Federal Bureau of Investigation agents with experience in investigating child predators, researchers from the Department of Justice and the National Institute of Justice, and clinicians with experience in treating child predators.

The material covers not only how to protect patients in the hospital, but also how to watch for signs of abuse in any child and how to respond.

"We learned from law enforcement that you will rarely catch a child abuser in the act. What you will find predators doing is violating policies in order to gain access," she says. "That's why we have tried to create an atmosphere here that is intolerant of people trying to violate patient safety policies."

Liability risk if you don't have policy

In another case, a staff member at a health care facility, did not sexually assault a patient but took a photo of a patient in "a very compromising situation, and this was a very vulnerable patient," says. Bruce Cranner, JD, chair of the Medical Liability and Health Care Law Committee of DRI — the Voice of the Defense Bar, a group based in Chicago that represents 22,000 defense counsel nationwide. Cranner defended the staff member, who had used a cell phone camera. "The person took the photo as a gag, but it ended up in a lawsuit," he says.

The hospital took the position that the act was committed without the hospital's knowledge and outside the scope of employment. The settlement eventually was made with the individual staffer and not the hospital, Cranner says. Nevertheless, the hospital suffered from the bad publicity surrounding the incident.

"There is exposure if the hospital has not established a policy and where the hospital is not taking reasonable steps to make sure the patient is protected," Cranner says. "Hospitals should have a policy prohibiting the use of cell phone cameras."

Cranner notes that most hospitals already have policies that restrict cell phone use because they may interfere with medical devices, so it may be simple to expand that policy to specify that the camera function also is prohibited. (See article below for the latest information on limiting cell phone use because of telemetry concerns.)

Cranner recommends amending any existing policies on photography in the health care facility to include the use of cell phone cameras. He notes that people are so casual about using cell phone cameras, not even thinking of it as a "camera" so much, that some might argue they didn't think using the cell phone violated the prohibition on photography.

"I think a hospital that does not specifically include cell phone cameras in their policy on photography faces some exposure," he says.

HIPAA violation also possible

In addition to all the other reasons a cell phone camera can be dangerous in a health facility, a photo of a patient could be a violation of the Health Insurance Portability and Accountability Act (HIPAA), says Meredith L. Borden, JD, an attorney with the law firm of Venable in Baltimore.

"A photograph could reveal someone's protected health information — not just the fact that they're at the hospital, but their injury or what their particular illness might be," she says. There also can be criminal and civil claims for unauthorized photography, even if the patient is an adult and not nude, Borden says. Some states restrict the unauthorized photography of a person not in a public place, and the health care provider could be named in any lawsuit as well as the individual taking the photo, she says.

"The risk to the employer in these situations is great," she says. "There are myriad ways that you can be penalized if someone takes an unauthorized photo of someone in your care."

Staff vigilance is important

The staff at Rady also were encouraged to monitor the use of cameras by parents. The use of cell phone cameras and other cameras is allowed, but staff watch for parents taking photographs of children not their own, Filley says.

Filley reports that the staff at Rady have accepted the cell phone restrictions well. They were so disturbed by the incidents that happened at the hospital that they were willing to do anything to prevent a recurrence, she says.

The vigilance of employees is a key part to making such a policy work, Filley says. Rady employees now know that anyone using a cell phone in a patient care area should be monitored, and violations of the hospital policy must be immediately reported.

"Our staff are the strongest part of this effort," Filley says. "They know what is at stake, and they will not just go about their business if they see someone using a personal phone around patients. They will speak up."

Sources

For more information on restricting cell phone cameras, contact:

  • Bruce Cranner, JD, DRI — The Voice of the Defense Bar, 150 N. Michigan Ave., Suite 300, Chicago, IL 60601. Telephone: (312) 795-1101. E-mail: dri@dri.org.
  • Raylene T. Filley, JD, Senior Managing Director, Risk Management, Rady Children's Hospital, 3020 Children's Way, San Diego, CA 92123. Telephone: (858) 966-4980. E-mail: rfilley@chsd.org.
  • Meredith L. Borden, JD, Venable, Two Hopkins Plaza, Suite 1800, Baltimore, MD 21201. Tele-phone: (410) 528-2304. E-mail: mlborden@venable.com.

Cell phones don't interfere, report says

Many health care organizations routinely ban the use of cell phones because they can interfere with some medical equipment, but a new report says that fear is overblown. Other experts, however, say caution still is warranted.

In a study published in Mayo Clinic Proceedings, researchers say normal use of cell phones results in no noticeable interference with patient care equipment.1 Three hundred tests were performed over a five-month period in 2006, without a single problem. Involved in the study were two cellular phones that used different technologies from different carriers and 192 medical devices. Tests were performed at Mayo Clinic campus in Rochester, MN.

The study's authors say the findings should prompt hospitals to alter or abandon their bans on cell phone use. Mayo Clinic leaders are reviewing the facility's cell phone ban because of the study's findings, says David Hayes, MD, a cardiologist in the Division of Cardiovascular Diseases and a study author.

But ECRI, a nonprofit health services research agency in Plymouth Meeting, PA, disagrees. In a February 2007 notice, ECRI continues to recommend against lifting cell phone restrictions completely in health care settings. In a recent report, ECRI noted that some news articles suggest that newer cell phones do not produce significant interference and that improvements to medical devices have reduced risks to the point where usage restrictions are unnecessary. "However, there is published evidence demonstrating that while risks may have diminished somewhat, they have not disappeared entirely, and well-documented cases of cell phones affecting medical equipment do exist," ECRI states.

For more on ECRI's research regarding cell phones, go to the ECRI web site at www.ecri.org and enter "cell phone" in the search box. [Editor's note: Contact Hayes at the Division of Cardiovascular Diseases, Mayo Clinic, 200 First St. S.W., Rochester, MN 55905. Telephone: (507) 284-2511.]

Reference

1. Tri JL, Severson RP, Hyberger LK, et al. Use of cellular telephones in the hospital environment. Mayo Clin Proc 2007; 82:282-285.