At The Push of a Button: Now's the time to develop & enforce a photo policy

 

 
 
 

Ray Kemp | From the July 2008 Issue | Thursday, September 4, 2008


SINCE OCTOBER 2006, three publicized incidents involving EMS scene photography have resulted in employee terminations and resignations, national news coverage, and embarrassment for the EMS providers and the communities they serve. All three EMS providers involved had one thing in commonƒnone had access to a policy that authorized and governed the taking, use and dissemination of scene photography.

Case 1

In Missouri, an EMT posted images on a local Web site of an ATV accident involving a school bus. There were no images of the patient, but the reaction to his posting outraged his administrators and local elected officials to such a point that the EMT was ultimately fired over the controversial posting. (Search ˙Missouri EMT Terminated Over PhotosÓ atJEMS.com.)

Case 2

In Kentucky, angry family members assaulted a paramedic who had previously been in trouble for posting questionable patient photos and comments on a Web site linked to his MySpace page.

The paramedic took photographs with a cell-phone camera on the scene of a motor vehicle crash (MVC) that killed the family's teenage relative. (He later offered the images to the local coroner after learning the coroner's camera was inoperable; the coroner declined the offer.)

Word of the paramedic's on-scene use of the cell-phone camera quickly spread to the teenager's family. Aware of the paramedics past postings on MySpace, family members assumed he would do the same with the pictures of their relative, and, several days after the accident, they assaulted him at his station. The paramedic sustained only minor injuries, and no evidence ever surfaced suggesting the cell phone images were posted on MySpace or any other Web site, but his shell-shocked board of directors immediately terminated him.

Case 3

In Florida, a paramedic/fire chief ultimately resigned after mistakenly e-mailing scene photographs of a mortally injured female MVC patient with an exposed breast. The fire chief later acknowledged that he failed to review the images prior to sending them to neighboring departments. Regardless, the breast was visible when the photo was enlarged (as it apparently was by at least one recipient). The controversy garnered national media attention and propelled city officials to overreact as a result of a flawed internal investigation. (Search ˙The Anatomy of a Florida Photo ControversyÓ atJEMS.com.)

A Closer Look

oser LookThese three incidents all occurred in small rural communities, and all of the initial complaints came from other EMS associatesƒnot the general public or the patients themselves. So can it be said that EMS personnel are policing each other on matters that may concern patient privacy in scene photographs?

In several incidents I've researched involving EMS scene photography, personal ax grinding appears to be more of a catalyst for lodging a complaint against a camera-toting medic than a true concern over patient privacy. Heightened awareness and overexaggerated fears of HIPAA make thrusting such a complaint against a colleague an action that'll widen the eyes of any EMS administrator or elected official.

Complainants in these three incidents cited potential HIPAA violations as part of their initial charges; however, my research, along with the EMS providers' own investigations into the allegations, concluded that none of the involved scene photos constituted a clear HIPAA violation.

But, by that time, local media were alerted and news of the incident had already spread in their communities and would soon make its way to the national news markets. In one case, the accused photo-snapping paramedic was asked to appear on the Dr. Phil show; the paramedic declined.

In light of the national news attention, embarrassed administrators and elected officials felt compelled to respond with severity. Even though the incidents described here lacked patient-privacy violations, including HIPAA, terminations and a forced resignation were ultimately handed down from the EMS administrators.

The Personnel's Perspective

With nearly every cell phone now doubling as a camera, the threat of compromised patient privacy and/or embarrassment to EMS providers has never been greater. Cell phones can be easily lost or stolen, and therefore scene images could fall into the wrong hands. Worse is the potential to transmit images straight from a cell phone to every stored contact or group with just the press of a few buttons.

In my travels as an EMS photographer, I often meet EMS personnel eager to flip open their cell phones to display a spectacular incident they were involved in. ˙Look, here's one ya missed,Ó one paramedic proudly exclaimed to me. Beaming from ear to ear as if he was sharing images of his firstborn, he showed me a collection of mostly MVC patients, some still trapped in their vehicles and some obviously mortal, with close-ups of traumatic injuries.

When I asked one medic why he kept such images, he replied, ˙So my folks can see what I do for a living.Ó Unfortunately, I've heard the same response from many caregivers.

Other EMS personnel I've talked with seem to use the guise that the images on their cell phones were to document mechanism of injury (MOI) for the ED staff at the receiving hospital, albeit the images were still on their cell phone months or even years after the incident. And, in many cases, there was obviously more photographed than just the MOI.

Surprisingly and disturbingly, several EMS administrators have quietly acknowledged to me their awareness that such photography is covertly taking place within their organization and that they've done little or nothing to suppress the activity. The bright sideƒand the impetus behind this articleƒis that some have indicated their desire to incorporate policy in the future to ban cell-phone photography of emergency scenes.

By Other Means

Another device of scene photography that's quickly gaining popularity is the helmet cam. These small, inexpensive, self-contained digital audio/video devices can be clamped under, or on the topside of, a firefighter's helmet. Designed primarily to record working fires and other scenes, their intended use is to serve as a means for training, incident review and arson investigation.

The popularity of helmet cams is evident on the Internet, particularly with video portals such as YouTube, where you can find dozens of uploaded video of actual working fires and MVCs taken with a helmet cam. Much of the uploaded content appears to come from personal helmet cams and isn't an official department release. However, some of the uploaded content has come under criticism for showing improper fire suppression, poor scene safety and accountability, and dangerous behaviors just to obtain video. These unofficial releases often contain content that can place fire departments and other emergency services in an embarrassing light.

In one instance, a Maryland firefighter used a self-purchased helmet cam to record firefighters rescuing a 63-year-old man from a smoke-filled house. The victim would later die, but the video was aired on local TV news outlets that heralded the footage as ˙heroic.Ó The firefighter came under department scrutiny for using a helmet camera that was not approved by the chief and releasing video of a now-deceased fire victim.

The department issued a public statement urging media outlets to discontinue broadcast of the footage over the air and Internet. ˙The release of this video and the media coverage demonstrated a lack of compassion and sensitivity for the family of the deceased,Ó the statement read.

Over the past two decades, police dash cams have produced video that has helped convict criminals, document law enforcement (both good and bad), as well as provide tons of material for reality television. There's no doubt that the increasing popularity in the use of helmet cams by firefighters and emergency personnel will provide similar benefits, provided their misuse doesn't bring the whole concept to a screeching halt.

But, unlike police dash cams, helmet cams go where the person goes, and are therefore capable of recording much more than a camera focused on a point in which a police car is facing. Firefighters may take them inside homes, offices, automobiles and even in the patient compartment of an ambulance. And remember, they not only record video, but audio as wellƒa serious concern when one gets too close to a caregiver or patient with whom protected health information is being discussed.

Developing a Policy

Careful planning is essential for the development of a solid policy on scene photography. The first step is to draft what I call the ˙Who, What, Where, When and WhyÓ foundation. There's no particular format to this, as long as each one of these elements is addressed as part of the policy.

Who will be permitted to photograph the scene? All personnel? Selected (approved) personnel for only certain types or classifications of scenes? Think about what your service will allow photographically and define the types of personnel for the various tasks that relate to scene photography. It's important that this isn't so vague that it confuses what classification an employee may belong to.

What scene content is permissible to photograph and with what approved equipment? MOI only? Patient care? Patient care with identifiable features? This may connect to the ˙whoÓ category. For instance, you may decide EMS crews engaged in patient care are allowed to photograph only MOI, whereas the department public information officer (PIO) is approved for other types of scene photography, such as patient care.

Determining what specific photographic equipment is approved for use is vital to maintaining control of the images after they're recorded. To maintain the highest degree of image control, EMS providers should strive to approve only department-issued equipment as much as possible.

Cell phones equipped with cameras should never be approved, even if issued to the employee by the emergency service. These have the highest risk of accidental dissemination of images, as well as loss or theft. Some services have gone as far as scratching up the lens on all phones to render the camera function useless.

Where is scene photography permissible? Public scenes only? Homes and businesses (with proper permission)? Patient compartment of the ambulance? This part of your foundation may link to specific personnel approved for photography as described in the ˙whoÓ section of your policy. Again, for example, you can limit EMS crews engaged in patient care to photography only on public scenes where MOI is required. Conversely, a PIO or training officer may be permitted to photograph in other areas, such as the patient compartment.

When is scene photography permissible? Determine if you'll limit scene photography to only certain incident classifications (i.e., MCIs or MVCs with patient entrapment).

Why is scene photography valuable in your organization? At the beginning of your policy, describe the logic and benefits of scene photography to your service and community. Many public services require approval of policies from a governing board of officials, and it's important they understand why scene photography takes place within your service. Should your agency ever be questioned about its scene photography, the ˙whyÓ part of your policy will help support the intent.



Taking Ownership

EMS agencies and fire services must take ownership (via copyright) of any scene photographs taken by on-duty personnel in order to maintain control of image use and dissemination. U.S. Copyright law states that copyright protection is granted to the creator except in two situations. They are: (1) a work created by an ˙independent contractor,Ó and (2) ˙work prepared by an employeeÓ withinthe scope of their employment. In other words, is it the type of work the employee was hired to perform?

EMS and fire-service employers may assume all employees forgo any claims to copyright simply by being employed by their service. In a personal interview, University of Utah copyright law professor and attorney John Tehranian pointed out that this assumption may not necessarily be the case, since scope of employment isn't so black and white under current U.S. Copyright law.

According to Tehranian, ˙Courts use a multi-factored test, which is fairly ambiguous in determining whether something you've created is within the scope of your employment.Ó Tehranian added that the test includes such factors as whether one's pay is being taxed, whether the tools of creation belong to the employee, and how much guidance the employer exercises.

Tehranian agrees that getting something in the form of a policy or job description acknowledging that scene photography is a part of the employee's duties would further insulate an agency from an employee copyright claim.

The EMS law firm Page, Wolfberg and Wirth has a sample camera-use and cell-phone policy on their Web site that offers language you can use to incorporate copyright ownership and scope of employment into your policy (www.pwwemslaw.com).

Image Control

One of the most important elements to include in your policy is an outline of the process that will take place once an on-scene image is recorded. It's vital that images are transferred from the image device to an appointed photographic control officer (PCO) in an expedient manner and that this process is clearly defined in your policy. The longer images remain on a photographic device, the greater the chance the images will escape your service's control.

Using removable digital memory cards (micro SD, SD, CF, etc.) provides an effective means to transport new images to the PCO. Blank digital memory cards should be kept on hand to replace the used cards while their data is uploaded to asecure database for cataloging and content review.

The PCO could be your HIPAA privacy officer; however, in larger services, the HIPAA privacy officer may be more closely tied to the front office or billing duties, and therefore unfamiliar with fire-ground techniques, proper patient standard of care, etc. In addition to patient privacy concerns, such as HIPAA, all scene factors of the image need careful scrutiny to avoid embarrassment to your organization should the images be considered for publication or dissemination. A combined review of images by the PCO and HIPPA privacy officer may be warranted.

All images should be cataloged and stored in a secure database using photographic database software. There are a number of inexpensive software packages available on the Internet for download, such as ACDSee or Adobe Lightroom. Be sure your PCO erases or (preferably) reformats the digital memory cards before returning them to your digital devices.

Conclusion

In addition to HIPAA privacy rules, all states have some form of privacy law (either common, statute or both), and your service, especially your PCO, should be familiar with it before disseminating any of your images. Your service may need to consider consultation with an attorney specializing in privacy law.

The development of a policy governing the use or non-use of such devices as cell-phones cameras, helmet cams, digital cameras, etc., should be a paramount priority to any EMS, fire or other emergency service. With just the few cases I've cited, one can see that the risks of ignoring policy development only increase a service's exposure to legal suits, negative media coverage, community embarrassment and the potential for destroyed careers.

References

1.
U.S.C. Title 17 _ 101.



2.Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).



3.˙Photographer's Guide to Privacy,Virginia:The Reporters Committee for Freedom of the Press; 1999.www.rcfp.org/photoguide.

Ray Kemp is a contributing photographer forJEMS and the owner of 911 Imaging, a professional EMS, fire, rescue and police stock photography company. His photography has appeared in numerous EMS publications and textbooks. During his 17 years in EMS and fire services, he spent his last six years as public information officer for the St. Charles County Ambulance District in Missouri.




Connect: Have a thought or feedback about this? Add your comment now
Related Topics: Administration and Leadership, Leadership and Professionalism, Legal and Ethical, Jems Features

 

Ray KempRay Kemp is a contributing photographer for JEMS and the owner of 911 Imaging, a professional EMS, fire, rescue and police stock photography company. His photography has appeared in numerous EMS publications and textbooks. During his 17 years in EMS and fire services, he spent his last six years as public information officer for the St. Charles County Ambulance District in Missouri.

BROWSE FULL BIO & ARTICLES >

What's Your Take? Comment Now ...

Buyer's Guide Featured Companies

Featured Careers & Jobs in EMS

Get JEMS in Your Inbox

 

Fire EMS Blogs


Blogger Browser

Today's Featured Posts

 

EMS Airway Clinic

Mechanical CPR is Producing Resuscitation Results Beyond Expectations

Discover why clinical studies are finding mechanical CPR just as effective as optimally-performed CPR.
More >

Multimedia Thumb

New Technology Helps Missouri Ambulances

Strategic GPS tracking helps in Springfield.
Watch It >


Multimedia Thumb

Profile: Hospital Wing Air Ambulance

Take a look inside this Memphis service.
Watch It >


Multimedia Thumb

New Monitors for Wyoming EMS

Grant helps Torrington EMS get new equipment.
Watch It >


Multimedia Thumb

London Medics Increasingly Attacked

One medic describes her violent confrontation.
Watch It >


Multimedia Thumb

Violence, Arson in Ferguson

Crowds in Ferguson and elsewhere react to decision.
More >


Multimedia Thumb

California Bus Rollover

One killed and dozens injured.
More >


Multimedia Thumb

Buffalo Residents Dig Out and Prepare for Flooding

Flooding expected as heavy snow melts.
More >


Multimedia Thumb

Field Bridge Xpress ePCR on iPad, Android, Kindle Fire

Sneak peek of customizable run forms & more.
Watch It >


Multimedia Thumb

VividTrac offered by Vivid Medical - EMS Today 2013

VividTrac, affordable high performance video intubation device.
Watch It >


Multimedia Thumb

LMA MAD Nasal™

Needle-free intranasal drug delivery.
Watch It >


Multimedia Thumb

Braun Ambulances' EZ Door Forward

Helps to create a safer ambulance module.
Watch It >


More Product Videos >