Breaking Compliance News Blog

Smartphones: Privacy Risk AND Infection Risk?

Posted by Margaret Scavotto, JD, CHC on 1/31/18 7:02 AM

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In 2016, a Pennsylvania hospital OR unit secretary had incisional hernia surgery at the hospital.

In 2017, she sued the hospital, a doctor, and multiple co-workers.

The employee-patient claims a scrub nurse used a smartphone to take a picture of her exposed genitals while she was under anesthesia. 

Staff who witnessed the photograph allegedly did not stop the photo or report it. Later, a scrub nurse showed the photo to the plaintiff, and to other staff.

In addition to her privacy claim, the plaintiff asserts that the smartphone posed an infection risk to the sterile OR. 

Finally, the plaintiff claims she experienced retaliation after she reported the scrub nurse (who was fired). She claims she was harassed by her co-workers.

The hospital reports a different side of the story - that the plaintiff filed a lawsuit over a practical-joke-gone-wrong:

Washington Health System disputes the version of events that has been published… [The patient] initiated and participated in the circumstances giving rise to her lawsuit by bringing fake intestines into the OR and requesting that they be placed on her abdomen at the time of the surgical procedure as a practical joke… Unfortunately, the object was photographed and that image was shared with Ms. Doe. Notwithstanding her actions, the hospital promptly initiated disciplinary action against employees who violated its policy on patient privacy.

The patient’s response was that she did NOT consent to having any photos taken – in particular, photos of her genitals.  

A policy is not enough

The Pennsylvania health department investigated the privacy complaint, and found that the hospital had a policy that restricted cell phone use – but it wasn’t followed. As part of the health department investigation, an employee stated that cell phones are common in the OR. The health department instructed the hospital to revise its cell phone policy and train staff accordingly.

It is easy to have a disconnect between policies and practice. Use your compliance program to increase policy awareness, and use audits to determine compliance. Key items to address are:

  • Where cell phones may or may not be used
  • HIPAA authorizations for patient photos
  • CMS Survey & Certification Memo 16-33, which clarified that humiliating or demeaning photos or recordings of nursing home residents are mental abuse
  • Securing digital photos of patients.  
  • Training staff on smartphone use – and NOT just at hire and annually. Smartphones are omnipresent; your training approach should be too.

Double check: conduct interviews and walk-through audits to determine whether your policies are being observed.

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Topics: HIPAA

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