Reducing Risk: 4 Best Practices for Patient Video Monitoring & Recording

Patient video monitoring in healthcare settings, especially nursing homes and other long-term care facilities, is now commonplace.

But no Louisiana laws gave nursing home residents or their family members the right to set up remote video monitoring devices in their private residential areas until the Nursing Home Virtual Visitation Act took effect in 2019 — an important distinction in this claim study.

Explore how patient video monitoring played a role in deciding the case, the way Louisiana laws influence recording healthcare conversations, and how to move forward in handling video and audio recordings of care at your facility or clinic.

The Claim

The patient was an 80-year-old female who had suffered a stroke and utilized a wheelchair for mobility assistance. A Patient Compensation Fund complaint was filed in 2017 alleging that she fell due to improper fall precautions and monitoring by the facility staff.

As a result of the fall, the patient suffered a fractured hip. She developed significant complications and passed away within six weeks of the fall event. The panel found a breach in the standard of care for failure to follow proper protocol after the patient’s fall.

The Nursing Home Virtual Visitation Act

It is important to note that, when the Nursing Home Virtual Visitation Act became law in 2019, nursing home residents and their family members were given the legal right to set up remote video monitoring devices in their private residential areas if they meet certain criteria. These criteria include:

• The resident or surrogate must give the facility’s administration authorized notice that the video camera was installed.
• They must ensure the camera includes an accurate record of date and time if it records activity.
• The costs for the device, its operation, installation, and removal are all to be paid for by the patient or family member.
• If the patient has a roommate, they must obtain written consent from that patient or their surrogate to install a patient video monitoring device in nursing home rooms.

The timing of this law is an important component of this camera monitoring claim study because the incident with this patient occurred in 2016 — well before any Louisiana law allowed for remote video monitoring by patient families.

The Conflict

During the panel phase and subsequent litigation, video footage from the family’s monitoring camera was entered into evidence. The admissibility of the camera evidence was heavily contested with opposing testimony from both sides as to whether the family had given notice to the facility that they had placed a recording device in the patient’s room.

Ultimately, the footage was allowed. The video clips submitted do not show the actual fall, but they do show the bed in its lowest position, the side rails up, the patient’s clutter-free environment, and the bedside table being accessible.

The plaintiffs argued that the patient’s wheelchair was not placed near the bedside at the time of the fall and that the patient was attempting to access the chair when she fell. The case went to trial and the jury awarded significant damages to the patient’s heirs.

Safeguarding Your Organization

Louisiana is a “one-party consent state”. This means if one party who is involved in the conversation consents to the recording, then it can be recorded. In relevance to this claim, it means that if a patient or family member is involved in the care conversation being recorded, their consent is the only one needed. The care conversation can be recorded without the knowledge or consent of the other person, the healthcare provider. If the recorder is not part of the conversation, then consent should be obtained verbally or in writing.

In Louisiana, it is illegal to record conversations you are not part of and to leave a device to record in a room after you leave. That’s why it is very interesting that the court allowed the recording to be used as evidence without documented consent or knowledge from the organization in this case.

Many concerns arise from the existence of patient and family recordings, including allegations of medical malpractice, social media rants, reputational enterprise risk, and undermining the element of trust in the physician-patient relationship.

Here are four ways you can address video and audio recordings created by patients and their families within your healthcare organization:

• Ensure a policy is in place that addresses video and audio recording within the organization. Most organizational policies do address recording in specific departments — like Labor and Delivery, for example — but frequently do not state if recording is allowed elsewhere within a healthcare facility.
  
  Since healthcare organizations have an obligation to protect the privacy and confidentiality of all patients, it’s recommended to not allow any photos or recordings in areas where other patients would be included. Policies should also allow staff to refuse to be photographed or recorded while on duty.
  
• Train staff on the recording policy and how to address situations like these when they arise. Confronting someone by asking them to discontinue recording can be uncomfortable. Some people may become angry or challenge the staff. Training staff to handle these types of situations with proper verbal and non-verbal communication is critical. Caution should always be taken by staff members not to delay the care of a sick patient, especially when in an emergency, to confront someone trying to record care.
• Document information about the recording of care. Anytime someone is recording care, it should be documented in the medical record. An occurrence report should be completed if the recording is not discontinued upon request.
  
  If the organizational policy does not allow recording, Staff should communicate the policy to the person recording, and they should be asked to stop. Sometimes the recorder may challenge the employee and the situation could quickly escalate. Security may need to be involved in the event someone insists on continuing to record.
• Manage your healthcare organization’s enterprise reputational risks. Staff should be able to appropriately handle any negative content identified in social media.
  
  It isn’t uncommon to see negative comments and recordings of care in a healthcare organization or by a specific provider on social media. Many organizations only allow designated people to comment on behalf of the organization and handle these types of situations. A policy should address rules of engagement in social media and only designated individuals should directly intervene. It must be recognized that the organization’s reputation could be damaged depending upon what is being posted and, in the event of defamation, legal action may be sought.

Patient Video Monitoring in Nursing Homes

Patient video monitoring in healthcare has numerous benefits. Cameras in nursing homes are meant to provide peace of mind that patient care is being provided to the highest standard and, in the worst-case scenario, reveal elder abuse and neglect that might otherwise go undetected.

However, patient privacy laws must also be observed, and video recordings open the door for HIPAA violations if your healthcare organization and other patients are unaware of a camera’s presence. Ensure your facility or clinic has firm policies regarding video and audio recording, train your staff members on those policies, and enforce them. That’s truly the best practice to avoid liability.

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Need more social media guidance? LHA Trust Funds claims experts discuss some of the top social media exposure scenarios and how to handle them.

Your claims defense starts with the investigation. LHA Trust Funds Claims Operations Director Jamie Lamb offers tips on Conducting Workplace Investigations & Writing Occurrence Reports in our latest webinar on June 8 at 10 am. Register now.