News & Insights

Video/audio recording of procedures (health care)

Michigan Medicine - Michigan State Medical Society (November/December 2017)

By Daniel Schulte, MSMS Legal Counsel
November 27, 2017

QUESTION:

A patient’s wife asked if she could remain with her husband in the ER while I examined him treated his injury. The husband said that this was fine with him. The wife stood in the corner behind the nurse and I who were focused on performing a procedure. When we were finished I turned to let the wife know we were finished and all went well and discovered she was making a video of the procedure with her iPhone. She never asked for permission to make the video and no one provided consent. Can a video legally be made under these circumstances? Do I have any legal recourse?

ANSWER:

This video recording was made illegally. Section 539d of Michigan’s Penal Code provides:

“(1) Except as otherwise provided in this Section, a person shall not do either of the following:

(a) Install, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place.

(b) Distribute, disseminate, or transmit for access by any other person a recording, photograph, or visual image the person knows or has reason to know was obtained in violation of this section.

(3) A person who violates or attempts to violate this section is guilty of a crime as follows:

(a) For a violation or attempted violation of subsection (1)(a):

(i) Except as provided in subparagraph (ii), the person is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.

(ii) If the person was previously convicted of violating or attempting to violate this section, the person is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000.00, or both.

(b) For a violation or attempted violation of subsection (1)(b), the person is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000.00, or both.”           

It was illegal for this patient’s wife to use her iPhone to make this video. The space in the ER where treatment is provided to patients is a “private place”. I assume there are signs posted prohibiting cell phone use, curtains dividing the treatment areas and other steps have been taken maintain privacy in this area. Both patients and the health care professionals working there are entitled to and expect privacy in the ER. Any distribution, dissemination or transmission of this video is also illegal. This is either a 2 year or 5 year felony with fines of $2,000.00 or $5,000.00 depending on whether the patient’s wife has been convicted of making illegal videos in the past. You or the hospital should put the patient and his wife on notice that the video was made illegally and that it should be destroyed. You may or may not want to file a police report to put the authorities on notice of this illegal act.           

Audio recordings of patient encounters are becoming more and more frequent. Patients can easily record a conversation with their phone and the recording may assist in the care of the patient in cases where the physician’s instructions are complicated. A recording also helps a caregiver at home that cannot make the appointment. The law requires that all parties to the conversation have knowledge of the recording and consent to it being made.


About Daniel Schulte ...

Daniel J. Schulte has more than 20 years experience representing small business owners in all aspects of transactional, operational and regulatory legal matters. A Certified Public Accountant as well as an attorney, Dan is the firm's managing partner and chair of the Health Care Practice Group.  

He regularly advises and counsels concerning the formation of business entities, the preparation and review of business and corporate contracts, the purchase and sale of ownership interests in businesses and/or their assets, and the purchase, sale and leasing of real estate. A significant component of Dan’s practice involves representing healthcare professionals in state regulatory matters, including disciplinary and other licensing disputes with the State of Michigan, and federal regulatory matters including fraud and abuse issues. He also counsels on the anti-kickback and Stark laws, preparation of compliance programs, and responding to and negotiating settlements in connection with government enforcement actions.

Dan is well-known for his knowledge and experience in the area of association law, and is primarily responsible for the firm’s representation of the Michigan State Medical Society the Michigan Dental Association and the Michigan Osteopathic Association.  His work related to association law includes the drafting and review of new legislation and the preparation of Amicus Curiae Briefs for filing in Michigan’s Supreme Court and Court of Appeals on a variety of topics affecting health care professionals practicing in Michigan.

Dan writes articles and presents frequently before legal, medical and business groups on a variety of topics, including HIPAA, the HITECH Act, the Stark Law, the fraud and abuse laws, health care compliance plans, business succession planning, asset protection, and estate and tax planning. 

He is ranked among The Best Lawyers in America®, and has been named a “Michigan Super Lawyer” by Thomson Reuters.


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