Legal & ethical implications of EMS photography

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From JEMS.com

I Wish I Had a Camera

Legal & ethical implications of EMS photography  

Story & photos by  

David Sharpe, RN, CCRN, CFRN  

Published In JEMS

Remember the last really dramatic call you had? Perhaps it was a spectacular car crash or a cliff rescue in which your team sent rescuers over the side to reach a trapped victim. Chances are, you’ve had at least one call recently where you arrived on scene and said, “Oh man—I wish I had a camera!” A few of us have carried cameras for years, but the advent of lightweight, inexpensive digital cameras has greatly expanded the pool of EMS photographers. And team members not involved with the extrication often have time to take a few photographs. Many of the photos that grace the pages of JEMS have come from EMS personnel who were at the right place at the right time.

This article examines the legal and ethical implications of EMS photography and offers guidelines to help you decide how to snap that shutter without risking your career in the process. Let me stipulate here that I am not an attorney, and this article is not intended to take the place of or serve as legal advice. My goal is to take a rational look at some of the applicable laws and regulations and help you develop a plan to avoid becoming the next landmark court case. Keep in mind that laws vary from state to state, so consult an attorney if you or your department has any doubt about your actions.

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The intense expression on this medic’s face makes a dramatic photograph.  

Why take photographs on scene?

A recent informal online survey revealed that the most common reason to take photos on scene is to communicate with other medical providers about the accident scene itself. Digital cameras with LCD screens that instantly display the image make it easy to demonstrate mechanism of injury. Some trauma centers even have the capability to instantly print the image or project it onto TV screens so all team members can view it. Although a verbal report of mechanism of injury is still needed, a picture can indeed be worth a thousand words.  

Photos are also routinely used for education and training. Open any EMS textbook and you’ll find photographs of accident scenes, injured victims and medical patients. These images help prepare new field responders for the realities of the career they’re entering by illustrating the points made in the text. Consider trying to describe an evisceration or the different types of burns without accompanying pictures; the text alone would be inadequate to clearly explain the difference between second- and third-degree burn injuries (see Figure 1).

Another use for photographs is marketing and promotion of your EMS program. Although these uses rarely call for images of victims themselves, photographs of an ambulance or medical crew in action are often useful. Dramatic images are in demand, but take care to ensure the images shown are appropriate for the intended audience.  

Finally, there’s something to be said for the social value of EMS photography. The public has great interest in what we do for a living, and photographs have tremendous power to effect changes in our society. The Pulitzer prize-winning photo of Oklahoma City firefighter Chris Fields holding the limp body of infant victim Bayles Almon from the Alfred P. Murrah Federal Building bombing shocked the entire world. Images like these help unite us in our feelings and have an impact that no simple narrative can match.  

Privacy & confidentiality

By far, the biggest objection to taking pictures on scene is concern over a victim’s privacy. It’s important to note that two aspects of photography can create problems in this area—taking the image and publishing the image. We’ll talk about both aspects further, but first let’s discuss the laws and conventions as they apply to photographers in general.

The current interpretation of the First Amendment is that an individual in a public place may take photographs of anything they wish as long as they don’t break other laws, such as trespassing. The photographer may also publish those photos to “inform or educate” without permission from the subject of the photo. Take note: Publish can mean any use of the photo—from showing it to coworkers to posting it on the Internet. If a photo is used for commercial purposes, such as advertising, a model release is required from each identifiable individual in the photo.  

Notwithstanding this commonly held right of photographers to take pictures in public places, courts have tended to protect individual rights when the individual is in a compromised situation. Bert P. Krages, Esq., states in his Legal Handbook for Photographers:

“While courts have generally sanctioned the photography of newsworthy events that are exposed to public view, they have traditionally considered certain subject matter to be private affairs that warrant protection from intrusion. ... Courts have been very protective of patients who are being treated at medical facilities or in their homes.”1

 

Figure 1: Photographs help EMS personnel prepare for dramatic injuries, such as this evisceration, before encountering them in the field.  

Few published court decisions relate to scene photography directly, with one significant exception: Shulman vs. Group W Productions Inc. This case stems from a television film crew riding along with an air ambulance in Southern California. The flight crew responded to the scene of a motor vehicle collision with a camera and microphone, recording the events on scene and in the aircraft en route to the hospital. The patient later sued the producers of the show for intrusion.

The case eventually found its way to the California Supreme Court, which ruled that because the event was newsworthy, the producers were within their rights to publish the footage without Ms. Shulman’s release. However, according to the Supreme Court, the act of recording the event in the first place may have violated her right to privacy by recording her conversations with the flight nurse and because the interior of ambulances are considered to be private places and, thus, the patient had a reasonable expectation of privacy.1

Although it’s presumed that people in public have no expectation of privacy, an accident victim, even in a public place, can argue they’re in a compromised situation against their will and should not be exploited by photographers.

Because of this, medical personnel may be held to a stricter standard than photographers in general. Most hospitals don’t allow photographs of patients without prior written permission from the patient. The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) sets this as the standard for all patient photography, but stipulates:

“In the event that films are obtained prior to securing patient consent, the films should be sequestered from use or release pending receipt of an appropriate consent.”  

Additionally, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) severely restricts the release of information about a patient without the patient’s consent for any reason other than “treatment, payment or healthcare operations.”1

 

Figure 2: This image focused attention on scene safety, causing our flight program to improve the visibility of flight suits for our staff.  

HIPAA de-identification standards

HIPAA does allow for de-identification of protected health information and its subsequent release without patient permission. Basically, this rule permits educational and informational use of medical information while protecting an individual patient’s identity. The issue of what constitutes de-identification thus comes into question. The HIPAA regulation lists 18 specific data types that must be removed for adequate de-identification. Many of these items, such as medical record numbers, addresses or phone numbers have no real bearing on the issue of scene photographs, but certain others do.

Specifically, these include vehicle license numbers or identifiers, full-face photographic images or comparable images and any other unique identifying information. In addition, names, dates and specific locations are listed as identifying factors, and so should not be used in captions or descriptions of the photograph. The entire list of items can be obtained online at www.hipaadvisory.com/regs/finalprivacy/514.htm.

Consents and releases

Because of these privacy issues, some EMS agencies have issued an outright ban on employees carrying cameras on the job. However, there’s no need to resort to such drastic measures to protect patients or the agencies themselves. As Krages explains:

“The best way to protect oneself from being sued for invading someone’s privacy is to obtain his or her consent to be photographed … It is a good idea to get a release even when permission is not legally required to take a photograph.”

Whenever possible, ask the patient for permission to take photographs and obtain a written release for publication of the images. In EMS however, it’s obviously impractical to ask for permission in advance, and any consent given in this situation will be suspect. This does not mean that photographs cannot be taken. The EMS responder may take appropriate photos and obtain a signed release at a later time when the patient has recovered enough to make an informed decision. Until that time, identifiable images must not be used or published in any form other than for direct patient care, and if the patient or family refuse to grant permission, the images must be destroyed or rendered unidentifiable. (A sample letter and model release form can be found at the end of this article.)

 

Scene photos can assist hospital trauma teams visualize the mechanism of injury.  

 

A practical guide for EMS photographers

1. Remember, patient care comes first. As an EMS responder, your primary duty is to provide emergency patient care and transport. Don’t allow the desire to get that great photo to delay the real reason you’re there. In some cases, I’ve handed my camera to a firefighter or police officer and asked them to get a few quick shots while I assessed the victim, then collected the camera on my way back to the ambulance. Ride-alongs are also great opportunities to get photos on scene without interfering with your own duties.

2. If anyone objects to the taking of pictures on scene, don’t argue; put the camera away and wait until the next call. You may be within your rights to take pictures, but many people, especially under stress, don’t know the law and believe that taking pictures is illegal or unethical. Debating the matter on scene proves non-productive and may even interfere with the rescue. Occasionally a simple explanation, such as “I want to show the ED physician the damage to the car” will soothe the objections, but I wouldn’t take it much further than this.

3. Ask permission whenever practical, especially when taking pictures of patients. Inter-facility calls are usually less frenetic than scene calls, and it may be entirely appropriate to ask the patient if you may take a few pictures. They are more likely to cooperate if you tell them why you want the images.  

4. If you do take pictures of patients or others who may not be able to protect their own rights (such as children) use discretion and good judgment. Bystanders may misinterpret your motives. In 1997, a news photographer was attacked while taking pictures of children on a playground to illustrate an article about springtime. Local residents assumed his motives were dishonorable, so they demanded his film, then beat him nearly to death, leaving him with permanent neurological deficits.  

5. Obtain a release from all identifiable patients before publishing the photographs. Although you may technically be able to claim the scene was publicly visible and thus did not require a release, you could still find yourself accused of violating the caregiver-patient relationship. A signed release is the best protection against such lawsuits.  

6. Don’t take pictures of the patient in private places, such as their home, the ambulance interior or in the hospital. As determined in Shulman vs. Group W Productions, even taking a photo in these circumstances may violate the patient’s privacy.

7. Recognize your employer’s concerns about your activities. If your employer feels uneasy about allowing you to carry a camera, show them the benefit you offer by taking pictures on the job. Use your photos to illustrate educational presentations, make them available to company training departments or submit good images for the company’s brochures or calendar. All companies need good photos for their own public relations, and helping out with this need serves your own interests as well as the employer’s.

8. Learn to use digital imaging software, such as PhotoShop or PhotoShop Elements (the less expensive version). This software allows you to improve the quality of a mediocre image or edit out unwanted, distracting elements in the shot. It’s also essential for de-identifying images of patients, by altering their appearance or removing unique identifiers.

 

This image can be used for training on the subject of helicopter landing zone safety.  

The practice of EMS photography is rapidly gaining acceptance around the country. Until recently, EMS responders who took pictures on scene had done so almost as a hobby, but privacy and confidentiality issues have caused some employers to limit this activity. As with all EMS activities, a professional approach and careful adherence to guidelines will help demonstrate the value of cameras on scene. EMS personnel with an interest in scene photography should help develop policies to encourage the practice, while recognizing established standards of confidentiality.

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Sample Release Form & Cover Letter

Zippy-Quick Ambulance Service

123 East Main Street

Anytown, USA 12345

(555) 555-5555

Re: Request for photo release

We are writing you today in respect to your recent ambulance transport by our service. In accordance with current industry practices, it is common for our crew members to take photographs at emergency scenes when time permits. These photos are most often used to show hospital trauma teams the accident scene in order to clarify mechanism of injury and aid in your treatment. Some images are later used for education and training, marketing and community outreach programs, such as public safety presentations.  

We take your dignity and privacy seriously and will not use images in which you are identifiable without your permission. Attached, you will find a consent form that you may use to grant this permission. Because the nature of some photographs may be distressing to some individuals, we have not included copies of the photos with this letter, but will make them available to you at your request. We appreciate your consideration of this request and wish you a speedy recovery.

Sincerely,

___________________________

Consent to Be Photographed and Published

Consent to Be Photographed and Published

I, [subject’s name] , consent to be photographed on [date] by [photographer’s name] , while [description of context or subject matter]. I understand that photographs may have been taken prior to this consent and agree that those photographs are covered by this consent. I further authorize that the photographs may be published for any purpose and in any form. Examples of such uses may include (but not be limited to): education and training of health-care providers or the general public, public relations or marketing efforts and accident prevention programs. If the subject of the photographs is a minor, I grant this consent as their parent or legal guardian.

Signature____________________________________

Date____________________________

Note: These sample forms are provided for discussion purposes only.

They are not intended for use without the advice of legal counsel.

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About the Author

David Sharpe, RN, CCRN, CFRN, is a flight nurse with CALSTAR in South Lake Tahoe, Calif. He has more than 20 years of field experience as an EMT, SAR team leader, military medic and amateur photographer.  

References

Krages BP: Legal Handbook for Photographers. 39, 2002.  

Shulman vs. Group W Productions. 18 Cal. 4th 200, 955 P. 2d 469, 74 Cal. Rptr. 2d 843 (1998).  

Hjort B: “Practice Brief: Patient Photography, Videotaping and other Imaging.” Journal of AHIMA.