The Picture of Health

• By Laura Williams
• Jul 20, 2011

New Yorkers recently had their trust violated when they found out that a Long Island pediatrician was indicted for sedating young girls in his office and sexually assaulting them as part of what he told them was a “medical procedure.” The main evidence against the pediatrician? Video of the crimes, recorded by a surveillance camera hidden among items on the doctor’s desk.

Doctors typically use cameras to prevent criminal behavior rather than to record it. Prescription drugs are enticing, and even regular medical supplies, especially needles, can be a target for a petty thief – or an unscrupulous employee. There’s always good, old-fashioned money to steal, too, from the cash register or from unaware patients biding their time in the waiting room.

Surveillance cameras can prevent and help prosecute these losses, but installing them in medical offices raises a host of privacy issues, much as the camera in the Long Island pediatrician’s office would have had patients known it was there. An expert in burglar and alarm law, Ken Kirschenbaum, of Kirschenbaum & Kirschenbaum PC, said cameras in doctor’s offices often inhabit a legal gray area.

“Many jurisdictions have specific statutory prohibitions for particular areas – bathrooms, dressing areas, bedrooms – where it’s illegal to install and utilize cameras,” he sad.

He added that there are two types of law surveillance systems could violate. The first a statute such as those he mentioned, where state specifically bars cameras in doctors’ offices. The second comes from common law. This commonsense legal tradition holds that it is unlawful to have surveillance in areas where a person can have a reasonable expectation of personal privacy, because the surveillance would violate that expectation of privacy.

Kirschenbaum said that, depending on the state, the liability for privacy violations can extend beyond the end users to include integrators who install a system in an area such as a patient examining room in which it will clearly violate a person’s privacy. This is something integrators should watch out for.

But doctors need not consign themselves to the continual loss of supplies and cash to theft; Kirschenbaum said that, in his opinion, doctors can install cameras in such a way as to avoid legal trouble.

First, he said, patients should be well aware that they are being filmed. Installing surveillance cameras in conspicuous areas and posting signs about their presence should indicate to patients that they are being watched. Going a step further, doctors should ask patients to sign consent forms, which would provide additional assurance that the patients know and understand that surveillance cameras are recording.

Additionally, the location of the cameras matters, too. “The camera can be installed in a waiting room, focused on a counter, for example, where doctors leave supplies and things of that nature,” he said. “Perhaps they have hypodermic needles – the camera should be focused strictly on that, not any area where a patient would be treated.”

Above all, Kirschenbaum said, to diminish the probably of legal problems resulting from surveillance, be careful with the footage once it’s been captured.

“The greatest risk (of legal action) in any CCTV situation or audio listening device situation is really the misuse of the data once it’s collected,” Kirschenbaum said, “because even data that is viewed and collected illegally, if no none knows about it, there’s not going to be any (legal) issues.”