Does Patient Privacy Trump Hospital Security?
A San Diego Hospital’s hidden cameras may have captured too much information
by Cheryl Clark
Contributing Writer, MedPage Today
Surveillance cameras track people scurrying along urban sidewalks, driving on highways, and shopping in convenience stores, but what about hidden cameras in operating rooms? A San Diego area hospital is now grappling with that question and the unforeseen sequelae of its plan to “catch” the person or persons responsible for missing drugs.
In 2012 Sharp Grossmont Hospital, a sprawling healthcare facility located in La Mesa, a community east of San Diego, installed cameras inside computer monitors attached to anesthesia machines used in three operating rooms at the hospital’s Women’s Health Center. The goal, according to hospital officials, was to catch a thief. The result, court documents charge, was multiple violations of patients’ privacy.
An attorney representing a doctor who has been accused of taking the drugs from an anesthesia cart and putting them in his shirt pocket claims the hospital’s “shocking” and “secret” surveillance, which went on for nearly a year starting July 17, 2012, violated the privacy rights of hundreds of patients.
“Essentially, every patient who had surgery or had their baby delivered by C-section or had a tubal ligation during that time, from July 2012 to June of 2013, would have had their images taken at some point,” said Duane Admire, attorney for the accused physician, Adam Dorin, MD. Admire said he does not believe the patients consented to have their surgeries recorded on video.
Healthcare workers’ theft of drugs intended for patients has been an increasing problem nationally. Doctors and employees who steal drugs may be feeding their own addictions, potentially endangering patient care. The Centers for Disease Control and Prevention has made this a special focus.
Attorneys interviewed nationally said it’s unclear whether boilerplate consent forms that patients sign cover video surveillance as a component of monitoring quality of care. However, many said hospitals should make such activities clear, with special language in separate consents.
Medical Board
The controversy is playing out with the Medical Board of California, which last September filed an accusation against Dorin based in part on a 2013 letter from the hospital to the board. A hearing on the action against Dorin’s license to practice is scheduled for October before an administrative law judge.
Admire provided inewsource/MedPage Today with documents Sharp filed with the board, but which are not available on the board’s website. The documents detail the content of the videos.
According to those documents, the surveillance captured 6,966 video clips, some depicting “female patients in their most vulnerable state, under anesthesia, exposed, and undergoing medical procedures.”
One of the documents, a declaration by Carlisle “Ky” C. Lewis III, Sharp HealthCare’s senior vice president and general counsel, said the cameras “would capture images whenever someone entered the room.”
The documents offer details of the clips that implicate Dorin.
The video clips and their depiction of patients undergoing surgery are the centerpiece of the legal action between the hospital and Dorin. Admire has filed a subpoena with the medical board for all 6,966 clips, saying they will show Dorin subsequently taking the drugs out of his shirt pocket and using them on patients or replacing them in anesthesia carts.
Admire said they will also show other anesthesiologists doing the same thing to make sure they had the anesthetic propofol for a patient in an emergency. Additionally, Admire said that the yearlong surveillance operation showed his client removing “a total of 12 bottles of propofol.”
Dorin “has always maintained that he only took drugs out of the carts for proper patient care,” Admire said.
Sharp opposes releasing the video clips to Dorin and his legal team.
“I have explained the concern, that it would invade the most crucial privacy rights of Sharp HealthCare and SGH’s patients, often in their most vulnerable state, under anesthesia and exposed on the operating room table,” Lewis said in his declaration to the medical board. Lewis added that relinquishing the videos would also “invade the privacy rights of Sharp HealthCare and SGH’s other physicians and healthcare providers, employees, and other persons.”
Patient Privacy
It is unclear how many images of patients were captured in those clips because the cameras turned on when they detected motion in the room. Admire estimates that during the 12-month surveillance, some 14,000 to 15,000 video clips may have captured images that patients “have an expectation would be private.”
“That’s our shocking problem with it, that if you ever have a reasonable expectation of privacy, it’s when you’re with your doctor, and exposed,” Admire said.
He added that he’s convinced the hospital’s video surveillance broke the laws on privacy.
“It violates both the U.S. Constitution and the California Constitution, … and there’s no question that if you’re going to violate someone’s right to privacy, you should get their consent.”
Admire said he’s not asking for public release of the videos, only for access to them because he says they will prove his client used the drugs on patients or restored them to the carts.
The attorney said he hadn’t seen consent forms that patients signed before the videos were taken. “But I would be shocked if they were asked, if they were given proper legal consent. Who would do that? Why would they do that?”
Sharp HealthCare’s vice president for public relations, John Cihomsky, declined to say whether the patients were asked to give consent for their surgeries to be recorded, or explain what laws or regulations authorized the surveillance operation with the use of video cameras that captured patients’ images.
He provided a statement that acknowledged the surveillance operation and said, “Each video camera was ‘motion activated’ and situated in a manner so as to limit its view to the area in front of the anesthesia cart,” and that “when the investigation was complete, the video cameras were removed.”
He added, “While images of patients were occasionally recorded, the focus of the investigation was on times the operating rooms were not being used for patient care.
“Sharp has retained the video in a secured environment during the pendency of the disputes involving Dr. Dorin. Sharp will destroy all the video when those matters have been concluded. Sharp will continue to refuse to produce any video that contains images of patients or protected health information, just as we protect patient information in all other formats.”
The Big Picture
Privacy and drug abuse surveillance experts around the country had varied opinions about whether Sharp Grossmont’s use of video surveillance to catch someone removing medications was appropriate.
“I have two concerns,” said Kimberly New, a Knoxville-based attorney who specializes in preventing and detecting drug abuse and drug theft in healthcare settings.
“There are video voyeurism laws that prohibit such filming without consent,” New said, adding that Medicare’s requirements for hospitals to be reimbursed, called conditions of participation, “also prohibit such filming without explicit patient consent.”
“In my opinion, boilerplate language in a consent for admission would not satisfy either standard,” New said.
Keith Berge, MD, an anesthesiologist at the Mayo Clinic in Rochester, Minnesota, who has led efforts to detect drug theft among healthcare workers there and nationally, said Sharp should have made “every effort … to aim (the camera) in such a way that the activity can be monitored while keeping the likelihood of showing a patient to an absolute minimum. They made this harder than it needed to be by not attending to that detail.”
The hospital compromised patient privacy, said Julianne D’Angelo Fellmeth, an attorney specializing in physician licensing and discipline and administrative director for San Diego’s Center for Public Interest Law. But, she said, there are colliding interests at stake.
“You’re trying to go after the diversion of powerful and highly addictive narcotics from a hospital, which are only supposed to be used in an operating room and not any place else. I don’t know that’s the best way they should have done this, but it was probably, to them, a reliable way.”
Robert Gellman, an attorney and privacy consultant in Washington agreed that it’s a messy situation. But, he said, he has a hard time understanding “why it’s OK for the hospital to take these photographs, and use them against the doctor, but when the doctor turns around to say I need more photographs to show I’m innocent, all of a sudden this is some terrible invasion of privacy. It seems like the hospital is talking out of both sides of their mouth, and this is just a fight among lawyers.”
Dorin resigned from the hospital in October 2013, and now provides anesthesia services under contract at Palmdale Regional Medical Center, a private hospital outside of Los Angeles.
Last September, more than 2 years after Dorin was told he was seen on video taking propofol, the state board filed an accusation against him. The document notes he “was observed on camera on multiple occasions, entering one or more of the operating rooms … and removing items from the drug carts, including propofol, and placing the items into his shirt pocket.”
On April 4, during an interview with investigators, Dorin “denied taking propofol from anesthesia carts.” Later, “confronted with video evidence to the contrary, (Dorin) admitted removing items from the drug carts, including propofol and placing the items in his shirt pocket.”
Admire said his client denies the allegations.
He explained that propofol was at that time in short supply, and that the hospital has a vendetta against his client for calling attention to “lax control of drugs” at the Sharp Grossmont.
Admire said that two other anesthesiologists told hospital officials and a peer review committee that taking drugs from anesthesia carts was common practice.
Additionally, Admire said, Dorin initially thought investigators were asking him if he took the propofol out of the hospital. He said no, because he had not, Admire said.
In July 2014 , Dorin filed a lawsuit in San Diego Superior Court against the Medical Board of California objecting to its investigation and saying that it had no legal foundation. He claimed that the hospital had an “axe to grind” against him because of his whistle-blower activities against the hospital. One of those involved Dorin’s now-acknowledged leak that resulted in a 2008 San Diego Union-Tribune article in that revealed Sharp Grossmont Hospital was under investigation for a medical error that resulted in a prominent New York man’s death, and a resulting lawsuit.
“[Dorin] complained, and, as a result, was made a scapegoat — thus, the Sharp investigation,” the lawsuit said. Admire said that Dorin’s case against the medical board has been dismissed.
Cihomsky was asked how many surgeries or patients were captured by the video cameras, and why after Dorin was confronted in April he continued providing anesthesia services at Sharp Grossmont until October 2013.
Cihomsky responded, “since this is an active case, we believe our statement is sufficient at this time.”
Filed under: General Problems
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