WhiteCoat

Pictures in ED Legally Permissible?

The news feed that I read each day came up with a link to an interesting legal opinion in a Georgia district court relating to care in the emergency department.

The case involved federal agents who went to a trauma center to question a patient in the emergency department who was being treated for a gunshot wound. During the questioning, another patient was brought in by ambulance for a gunshot wound. The detective watched as doctors “stuck their fingers into defendant’s chest wounds.” After the patient had been wheeled off to surgery, detectives confiscated the clothing that had been left in the room as evidence. The patient was later indicted for shooting the first gunshot victim. The patient-defendant then sought to suppress the evidence against him that was obtained in the emergency department, alleging that detectives were not lawfully present in the emergency department and that the incriminating nature of the confiscated clothing was not readily apparent.

The district court denied the defendant’s motion.

However, it was the reason for the denial that raised my interest.

In order for an officer to be “lawfully” in a given location without violating the Fourth Amendment prohibition against warrantless searches and seizures, the defendant can’t have an “expectation of privacy” where the evidence is obtained.

According to the district court in Georgia – and several other courts cited in the court’s opinions – patients don’t have an “expectation of privacy” in the emergency department. “A defendant does not have a reasonable expectation of privacy in an emergency, operation, or trauma room that the defendant shares with other patients and in which medical staff administers critical treatment.”

However, that whole “expectation of privacy” concept also applies to other areas of law, for example … photography. People can be legally photographed without their permission in public. That’s why paparazzi sit and wait outside their targets’ homes to take their pictures. People cannot be photographed without their permission in places where they have a “reasonable expectation of privacy” – such as in their home, in a hotel room, or in a bathroom. Otherwise, people would be free to videotape you through the cracks in your drapes.

So now it appears that in certain states patients have no privacy right in an emergency department. See a trauma patient being rolled in while you’re waiting in an emergency department bed in Georgia? This court opinion seems to give you permission to whip out your Nikon and snap away.

Or do courts plan to give different rights to those accused of crimes?

A copy of the full opinion, United States v. Martez Howard (1:10-CR-121-ODE, Northern District GA) can be found here (.pdf file)

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17 Responses to “Pictures in ED Legally Permissible?”

  1. ER Jedi says:

    Very interesting (in my best vampire voice).

    Oh the possibilties…

    By that standard then, we’d no longer to need to have he patient sign a consent form to have a medical photograph taken.

    CCTV could be set up for each room, and we could thus a history without ever having to meet a patient!

    A since there is no expectation of privacy, we can just do away with the curtains. Think how much time we’ll save on pelvic exams!

    /sarcasm

  2. Gene says:

    So does that make the doctor/patient confidentiality concept null and void in the ER? Or only between doctors and patients (and not nurses or technicians, etc)? I agree, a very interesting and somewhat disturbing decision by the court.

  3. rech says:

    People are photographed all the time (in Australia at least) being wheeled from ambulance to hospital (although I am opposed to such photography personally).

  4. Hueydoc says:

    HIPAA ?

    • WhiteCoat says:

      HIPAA still applies to medical providers/hospital employees/agents.
      HIPAA does not apply to patients/families/bystanders.

  5. Ed says:

    I think that the rub with the comparison is that the “perp” had no expectation that evidence from his crime could not be picked up by a random passerby. While patients do have an expectation that their personal information will not be ‘stolen’ and disseminated.

    An expectation of privacy, or lack thereof, does not allow for an illegal act.

    An officer can legally search your trash, however an identity thief cannot use the “no expectation of privacy” to defend his actions were he to retrieve a credit card number from your trash.

    • WhiteCoat says:

      Agree that expectation of privacy doesn’t allow someone to prospectively commit a crime. However, the case involved a law enforcement official’s right to confiscate items when he though that a crime may have been committed, so the issue is retrospective, not prospective.

  6. Lior says:

    The problem here is that you take the technical term “reasonable expectation of privacy” at face value. For the purposes of 4th amendment law, this term has a specific meaning that has very little to do with the ordinary meaning of the word “privacy”.

    I’m sure that you encounter patients who have read some medical literature but fail to realize that some of the words they read don’t mean what they seem to mean. Similarly most people don’t understand that scientists use everyday words to mean other things. In mathematics, “Statistical significance” and “ball” are examples.

    This ruling has nothing to do with the “privacy rights” such as your right not to be photographed.

    • WhiteCoat says:

      This is exactly the point that I am trying to argue.

      What you’re saying is that it is OK to make up different definitions for the same phrase whenever it suits law enforcement’s needs?

      If we’re talking about constitutional rights, the phrase “expectation of privacy” should mean one thing. If we’re talking about personal privacy rights, it should mean another. Maybe when it comes to deciding if a crime has been committed, it should mean a third. Not a very good way to create a reliable legal system, is it?

      Please explain the difference in meanings to me. Or better yet, point me to a court decision that delineates the difference.

      Kind of like medical providers saying “you had a heart attack.” When the patient has a surprised look on his face, the doctor says “no not THAT type of heart attack, the “runny nose” kind of heart attack.

      Somehow I don’t see this concept going very far.

      • Matt says:

        The key part is this phrase:

        “Courts in numerous jurisdictions have held that a defendant does not have a reasonable expectation of privacy in an emergency, operation, or—directly on point—trauma room that the defendant shares with other patients and in which medical staff administers critical treatment.”

        You have no expectation of constitutionally protected privacy in a shared room. It’s pretty straightforward isn’t it? If you leave a roach clip in your car in the driver’s seat where anyone can look in the window, you don’t have an expectation of privacy there. In the glove compartment is a different story though. That make sense?

        “If we’re talking about constitutional rights, the phrase “expectation of privacy” should mean one thing. If we’re talking about personal privacy rights, it should mean another. Maybe when it comes to deciding if a crime has been committed, it should mean a third. Not a very good way to create a reliable legal system, is it?”

        Your paragraph doesn’t make much sense.

  7. Matt says:

    Funny thing is cops often get quite pissy about being videotaped making arrests on public streets.

    http://pajamasmedia.com/instapundit/?s=videotape+and+police

    • Guiac says:

      My understanding is that they complain it has to do with wiretapping laws – which apply to voice communications right? So silent videotaping should be legal?

      At any rate I have heard that almost every single case gets dropped by DA’s since they are very difficult to prosecute and most DA’s feel it unlikely they might win the case in a jury trial.

  8. Jim says:

    Hospital policies routinely “violate” your First Amendment rights, whether as patient or employee/agent, to protect a patient’s right to privacy. These are trumped, however, by police conducting an investigation; hospital policies also may reflect this (i.e. reporting of GSW/SW, child abuse, etc).

    People have been fired (and rightly so) for posting photos of “interesting” ED patients on Facebook, etc.

    I read the opinion. To extrapolate it to photography is a stretch.

  9. Sarah G says:

    Actually, in KY medical personnel are not required to report gunshot wounds. Maybe they figure some people have it coming to them.

  10. Nurse K says:

    Our ER has cameras in many patients’ rooms (to watch psych patients mainly). It was told to us that we had to have a sticker/sign up saying that there was a camera in the room and that you may be filmed or else it was considered illegal. Technically, we can watch anyone we want on the camera as long as we have the sticker up (drunks not on a hold, Alzheimer’s patients who are impulsive, etc.).

  11. Matt says:

    Presumably, the hospital is private property; the hospital administration would still be well within their rights to prohibit photography on the premises (which would have to include the parking lot, but probably not, say, the public sidewalk next to the hospital). This could be enforced via trespassing law; no need to resort to constitutional rights (which generally only protect private citizens from actions by or on behalf of the government, anyway).

    • Anonymous says:

      But is the hospital really private property? Can the owner of the building kick everyone out on a whim? The answer is not really, so a hospital falls under the gray area of not being public property where anything goes, and not being private property where privacy can be expected.

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