Friday, September 20, 2013

A prank in the OR backfires



An anesthesiologist at a California hospital pasted stickers simulating a mustache and teardrops on the face of a hospital employee while she was having surgery on a finger.

According to the LA Times, the doctor said, "I thought she would think this is funny and she would appreciate it."

And if that wasn't bad enough, a "nursing attendant" took a photograph.

The patient, who said she had to quit her job because of the humiliation, is suing the hospital and the physician for this confidentiality breach.

The woman who took the photo said she deleted it after showing it to the patient and didn't post it anywhere. One version of the story is that she texted the photo to the plaintiff.

Others have testified that they saw the image on Facebook although the hospital said that there is no proof the photo was ever posted online. Multiple news outlets, including the LA Times, have published the photo which was obtained via court documents. 

One thing is certain. The photo is readily available now.
The plaintiff also claims that general anesthesia was unnecessary and only used so that the picture could be taken.

The anesthesiologist and some hospital employees were disciplined, but the hospital says the patient has fabricated and exaggerated some of her complaints.

At a deposition, a nurse manager at the hospital testified that in 2009, a sales representative took some pictures of a naked patient in the operating room. The hospital maintained that no such photos were ever taken. But then not only barred that sales rep from its OR, it also established a policy that no cell phones or cameras would be permitted in that area. This was an attempt to rectify a human error in judgment and common sense with a system correction. Obviously, it didn't work.

There are lots of issues to discuss.

It seems the OR is not a good place for a prank.

Bad ideas. One, pasting the stickers on the patient. Two, taking a photo (without consent). Three, texting it to the plaintiff. Four, posting it on Facebook (allegedly).

The Internet doesn't forget. Once something is posted it tends to stay there—somewhere—forever.

There is this thing called HIPAA, which contains many strict rules about patient privacy. People have been fired, fined, and even jailed for breaches of patient privacy.

Why didn't the hospital settle this case, which has gone viral? Do they really think they can win? Have they never heard of the "Streisand Effect"?

The hospital had a policy of no cell phones and no photos in the OR, but it was observed about as well as the 55 MPH speed limit. 

If there is nothing else to learn from this case, a hospital should not establish policies it cannot or will not enforce. Lawyers feast on that sort of thing.

Bottom line: The cell phone and its camera are not the culprits here. Smartphones don't take pictures of people; people take pictures of people.

19 comments:

Anonymous said...

Skeptical,

"Why didn't the hospital settle this case, which has gone viral? Do they really think they can win? Have they never heard of the "Streisand Effect"?"

I think the issue is that "risk managers" only can see $$$. They don't look at the hospitals' reputation and the docs' reputation as equal to $$$.

No offense, but don't they teach you NOT to do things like this in your first semester of med school? I've even seen articles that teach med students BEFORE they get there, if you have a Facebook page of your wild parties, a med school counselor is going to see it. You'd better keep your nose clean because if someone is wild, that could be a deciding factor that an interviewer compares you to someone with a "clean" internet record, and says 'I'd rather have the clean candidate'.

Skeptical Scalpel said...

I'm not sure exactly what they teach these days, but I have always said, "You can't teach common sense." It's 2013. This sort of "prank" might have worked in 1972, but not today.

Your point about Facebook is well-taken.

RuggerMD said...

So if we ban photos in the OR, how do us surgeons photograph interesting pathology for use in teaching in the future.
We still find rare and unusual cases that are worth documenting.

Skeptical Scalpel said...

Rugger, that is of course an issue.

Also I was going to mention in the post that when I was covering for four other surgeons on weekends and was the only general surgeon in town, I really could not leave my cell phone in my locker.

Anonymous said...

Us Surgeons?
(should be we surgeons)

Skeptical Scalpel said...

You are correct, but grammar isn't the focus of this post.

Since you brought it up, you should have put "us surgeons" in quotation marks and not capitalized either word. Also, "(should be we surgeons)" could do without the parentheses and is not a complete sentence.

Anonymous said...

I completely agree with SS's points. I do have a few random observations:

It is impossible to ban cell-phones in the OR. The surgeons always leave their phones on, and get the nurses or reps to answer them. I have to say that many of the calls are purely personal (recent examples: Mercedes repair done; special meat order arrived at the grocery). The anesthesiologists and circulating nurses are on them frequently, though the nurses don't make/take calls on them: they just text and web-surf on them.

Surgeons get the nurses or reps to take pictures all the time. I don't know the legalities involved if the patient's face is excluded, but I have never seen a surgeon taken to task for it. Most of the time, the educational benefits are doubtful; it's more like a personal collection to show off to colleagues. It is similar to cops taking personal shots at gruesome accidents.

Depending on your smartphone settings, any picture you take may be automatically send to the Apple/Google servers. That is, your "private" snapshot is in the Cloud.


Anonymous said...

Having a conversation with patients is very useful. My husband required a procedure that's rather rare. His vascular surgeon wanted to record it for teaching purposes. They discussed it openly, reached an agreement: no face shown, genitals draped, GPS turned off, the right to view the video maintained, no other recording allowed, etc. It was not difficult. And if any other photography/video had surfaced, it would be a HIPAA violation.

Patient's wife

Skeptical Scalpel said...

Anon, thanks for bringing this up. It is a simple solution to the problem.

Anne said...

I think that photos like this, and also pornographic photos of hapless patients, are one reason anyone who knows anything about the internet doesn't like the idea of doctors (or emergency responders, or anyone who would be in a position to see - and photograph - them at their most vulnerable), wearing Google Glass.

I have seen several enthusiastic young medicos over at the KevinMD blog and elsewhere claiming that Google Glass is "the future of medicine" and that patients just better get used to it, and besides, they're already being captured on CCTV when they're out in public, so who cares?"

Yeah, no. You're not going to video me and mine during our medical interactions and upload (by default) those videos to the un-secure and non-HIPAA-compliant Google Cloud.

If you wouldn't allow a stranger to video and upload to Google a video of your wife or daughter undergoing an intimate procedure or exam, don't demand that anyone else allow it either.

Skeptical Scalpel said...

Anne, I share your concern about Google Glass. If you think cell phone cameras are a problem in the OR, wait until everyone has a Google Glass. There is no way to know if you are being recorded. It will be interesting.

Anne said...

I have heard some Google Glass fanatics claim, "but there's a little red light that comes on when they're recording - it's not like you could record secretly!" My teenage son had a quick answer to that, when we were talking about it over dinner. He said he'd just borrow some of his sister's black nail polish (don't judge, please - she's going through a phase! hopefully a short one!) and paint over the LED.

"Interesting" is a good word for it. I just hope it's not INTERESTING-interesting, as in the Chinese curse.
:-/

Skeptical Scalpel said...

Yes, the little red light can be easily obscured. Luckily, the few videos I have seen from Google Glass in the OR are so out of focus and choppy that it's hard to tell what is going on.

Anonymous said...

Only someone having to work in a hospital day in day out could understand the context here. There is much the outside wold does not understand or realize about what occurs in the OR.

I see both sides here. I for one have pulled quite a few pranks in my days in the hospital. (Saline filled rubber tubing clamped off carefully by a unsecured locker door). However, I kept them typically confined to the locker room and physicians lounge.

The other side is while stress relief and enjoyment is important, you should never compromise patient care. Anything that endangers a pt physical well being or privacy is a concern.

Bottom line, when they put on a gown, they are no longer Sally the nurse from the cath lab, they are now your patient and deserve to be treated with the same dignity and care as any other patient.

Ask yourself this: had this NOT been a hospital employee and was a typical patient, would the behavior been ok?

Skeptical Scalpel said...

Anon, you make an excellent point in your last sentence.

SeaSpray said...

This post and some comments (regarding violation of privacy) are disturbing. I may write about this from a patient perspective since I had been a frequent flier to ORs a few years back. the "M" word comes to mind tho - MORTIFIED!

Medical humor can be exquisitely funny at times and the staff I worked with in the hospital had fabulous senses of humor. But one night ...they called a nurse (friend) up to the trauma rm (mixed company standing around waiting for her) in the ED and when she got their they flipped the light on and told her the mammo hanging was hers. She was a terrific person and could laugh with the best of them, but I also saw the quiet horror on her face. She handled it gracefully, laughing and all but she was embarrassed and I didn't blame her. But ...doing something to a vulnerable patient in the OR ...I have to write more about this. Too many thoughts for here. Trust? Violated? Humiliated? and more.

Skeptical Scalpel said...

SeaSpray, thanks for commenting. That story about the mammogram is awful. What is funny about that? Nothing, as far as I can tell.

Sandy said...

The questions is do I really want an anesthesiologist administering anesthesia to me, who would pull such a stunt? Uh....nooo.

Skeptical Scalpel said...

Sandy, I don't blame you for feeling that way.

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