November 27, 2017

Video/audio recording of procedures (health care)

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.

Attorneys

Daniel J. Schulte

Practice Areas

Health Care Law