Legal News

ACLU Questions Surgery Videotape Requirement Imposed By Health Department

By ACLU

FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org

The Rhode Island ACLU has asked the state Department of Health to reconsider an order it issued against Rhode Island Hospital on November 2nd, requiring video and audiotaping of surgeries at the facility.

The requirement was part of a more comprehensive order directed at the Hospital after its fifth wrong-site surgery in three years. In a letter sent last week to DOH director David Gifford, the ACLU expressed support for the agency's goal of protecting patients, but also raised concerns that implementation of this particular aspect of the order would "lead to a serious and disturbing invasion" of patients' privacy in many instances.

Among the concerns raised in the RI ACLU's letter:

• "It is difficult to think of many more intimate places to be videotaped than on an operating table. Although the order refers to 'patient notice and consent documentation,' none of the details for this consent is spelled out in the order, nor is it clear how patients will be notified. Just as importantly, we question how meaningful any consent will truly be in such a sensitive setting."
• "The order does not address many other key issues, such as the standards that will govern who has access to the videotapes and under what circumstances, how long tapes will be kept, how the patient will be able to obtain copies, and what limits – if any – will be placed on use of the tapes."
• "Since another part of the order requires an independent medical observer to be in the operating room for every surgery performed at the Hospital for the specific purpose of ensuring that proper procedures are followed … taping surgeries strikes us as redundant at best, and extraordinarily intrusive at worst."

The ACLU letter noted that the DOH order was ambiguous as to whether all or just selected surgeries would need to be taped. Even if the latter, though, the ACLU pointed out that the hospital would be required to tape numerous surgeries of any particular doctor in order to randomly examine a few of his or her surgeries.

The ACLU raised similar concerns about audiotaping surgeries, arguing that "in an operating room – as in most other non-public settings – a recognition by hospital employees that they are being audiotaped can have a potentially chilling effect on their speech and conduct." To the extent the audiotaping is designed to evaluate the group dynamics taking place among the staff in operating rooms, the ACLU argued that "knowledge among the staff that they are being audiotaped will inevitably change the dynamics among the group," and that the change will not necessarily benefit either the patients or employees.

For all these reasons, the ACLU letter urged the Department to revise its November 2nd compliance order and eliminate the taping provisions. The Affiliate is awaiting a response.

UPDATE: The ACLU has since received a response from the Department of Health, and will be monitoring implementation of the requirement.

Full post as published by ACLU Newsroom on December 01, 2009 (boomark / email).