Adair County Ambulance District„(Mo.) EMT Chris Drennan had no idea that photographs taken on an accident scene involving a 13-year-old boy would result in a firestorm of controversy that would ultimately cost him his job of 11 years.
On Aug. 23, 2006, Drennan and his partner responded in their ambulance to an ATV accident involving a school bus in rural north central„Missouri. When they arrived on the scene, they learned the patient had been riding his ATV behind a school bus when the bus suddenly braked, causing the patient to crash into the back of the bus. Suffering from head and internal injuries, the patient was airlifted from the scene by Air Evac and taken to a level one trauma center in„Columbia,„Mo.
After the patient was flown from the scene, Drennan took his personal camera and photographed the back of the bus, where the patient had impacted it with his ATV. Also photographed was the damaged ATV, an interior image of the ambulance where the patient was taken for stabilization while waiting for the helicopter_s arrival, and the helicopter just as it was lifting off with the patient. None of Drennan_s photographs have any images of the patient.
Local„Kirksville,„Mo., television station KTVO arrived on the scene and videotaped the back of the bus, showing the patient_s blood, broken window and bent bumper. KTVO aired its footage on the evening news the same day. None of Drennan_s photographs were used or submitted to any media outlets.
Two days after the accident, an Internet forum thread about the ATV accident was starting on a local„Kirksville community Web site. The site is a ˙talk about anythingÓ site, where locals share thoughts on politics, local events, polls, etc. The thread about the ATV accident was started by one of the forum moderators, and the thread provided a link to the local KTVO news Web site that provided information on the accident.
For the next five days, several comments followed the original accident forum thread. Most comments were in support of the incident involving the patient and the ATV as a ˙lessonÓ in helmet safety and operating ATVs in a ˙responsibleÓ manner. There are no thread comments from Drennan up to this time.
On Sept. 3, 2006, 11 days after the ATV accident, Drennan posted the photographs he had taken of the back of the bus and ATV on the accident forum thread. Seeing the earlier comments on how the incident should be a learning experience, Drennan thought the photographs would help support educating the public as to ATV helmet safety.
˙I wanted parents to show this to their kids a say, ÂHey this could happen to you,_Ó Drennan says.
The posting of the photographs received accolades from all but one forum member who disagreed with the posting of the photographs. As a result of the controversy of the photographs and the high profile of the accident in the community, Drennan sought out permission to use the photographs on the Web site from the patient_s family, even though there are no images of the patient in any of the photographs. Drennan met with the patient_s family while they were transferring their son to another medical facility. Drennan displayed the photographs to them and asked for their permission to use the images ˙in order to inform and possibly help others.Ó
The parents consented with, ˙if it would help someone else.Ó Securing only verbal permission and learning that there must be written authorization, Drennan later obtained signed permission for publication of the photographs as well as release of personal health information several days later. However, during the time of obtaining a release, the photographs remained on the Web site.
After learning of the Web postings, newly hired Adair County Ambulance District (ACAD) Chief Jason Albert suspended Drennan on Sept. 15, 2006, pending an investigation. Allegations included dissemination of Protected Health Information (PHI), a breach of ethics concerning confidentiality, and a willful, violent, negligent or other improper act, which brings discredit to the district.
The investigation was concluded on Oct. 5, 2006, and Drennan was notified of his termination. ACAD Chief Albert cited five violations for the grounds of Drennan_s termination, including a allegation that the district owns the photographs because they were taken while on duty. This new allegation is cited from Drennan_s termination letter as follows: ˙You have failed to secure proper authorization from my office or the Ambulance District prior to the distribution of records owned by us.Ó
However, the ACAD policy manual does not address photography of incidents while on duty as part of the job function of their EMTs or paramedics. Because Drennan_s ˙scope of employmentÓ is clearly not for the purpose of photography for hire, then lack of policy and/or written agreement that defines this as a part of a job function fails Section 101 of the United States Copyright law ˙work made for hireÓ definitions. Copyright protection in this case would generally be given to the photographer, Drennan, and not ACAD.
ACAD has apparently dropped the PHI allegations, because the photographs do not contain any identifiable images of the patient. However, Drennan_s termination letter states as one of the violations: ˙You failed to secure proper written authorization prior to the dissemination of potentially protected health information from the patient or his legal guardian.Ó
When asked about ˙potentiallyÓ and its bearing on Drennan, Chief Albert states that comments made on the Web site by Drennan may be a violation of PHI. In one of the threads on the Web site, Drennan responded to a posted question about the patient_s condition with, ˙He came back to KV [Kirksville] today. He is in rehab.Ó
Because the patient was transferred to the A.T.„Still„Rehabilitation„Center in„Kirksville, it is unclear in the thread comment if Drennan was commenting about the facility itself or a location within the facility. It is still unclear if identifying the patient_s location within the facility (particularly to„EMS) violates HIPAA, because HIPAA allows hospitals that maintain a patient directory to release patient condition and general location unless there is an objection by the patient or legal guardian.
According to Drennan, he stated he was unaware that the comment might violate PHI, and as a result of learning this, he went back to the parents of the patient and secured a signed release. Drennan_s attorney, Seth Shumaker, states in a termination rebuttal letter submitted to the ACAD board that the signed release ˙once given, operates prospectively as well as retroactively.Ó
The patient_s parents had not seen the Web forum until after an article of Drennan_s suspension had made news in the„Kirksville Daily Express. In a written statement to ACAD, the patient_s mother was ˙appalledÓ when she logged on to the Web site where the photographs were posted. However, the patient_s mother did not object to the posted photographs themselves.
In her statement, she was taking objection to comments on the forum thread„prior to Drennan_s posting of the photographs. She wrote: ˙This is not helping anyone, only judging us a parents and my son whom they don_t even know, as a careless ATV driver. This was an accident and the people posting the comments on this site were crude and very judgmental.Ó
It should be noted that none of the forum thread comments prior to the posting of the photographs were made by Drennan. The parent_s reaction to the Web forum comments is understandable, in light of the tragedy they have endured with their son_s accident and recovery. However, one can hardly hold Drennan responsible for the comments made prior to his posting of the photographs.
The photographs posted on the forum were in a manner to support previously posted public comments about ATV responsibility and safety. The posted responses on the forum as a result of the photographs seem to support my conclusion. If just one life or injury can be spared as a result of Drennan_s photographs, then the entire community of„Adair„County will have benefited from his images.
What could have been a positive educational PR tool for ACAD concerning ATV safety has turned into a muddy publicized dispute over the suspension and termination of Drennan. Although his photographs are no longer an issue as far as violating any HIPAA privacy rules, the posting of the photographs on a local Web forum sparked a debate as to their intended purpose.
Drennan_s comments on the forum have a possibility of PHI concerns, but that appears to be a moot point, because a signed release was obtained from the parents allowing such disclosure. If Drennan realized there may be a risk, at minimum, he should have consulted with his employer, ACAD, although this procedure is not addressed in the ACAD policy manual.
The ACAD policy is vague in addressing patient confidentiality and consists of only a few short paragraphs that take up little more than half a page. The policy manual doesn_t acknowledge the existence of HIPAA and the policy for ACAD to comply. This observation was supported by ACAD Chief Albert in a recent interview in which he stated that he intends to expand the patient confidentiality policy in the future. Nothing about the use of photography while on duty, the dissemination of images and copyright is covered in the ACAD policy either.
We now live in an era when what was once discussed over the fence with our neighbors is now openly discussed on Internet forums and blogs all over the world.„EMS employers and providers need to be keener to the fact that these discussions are increasingly taking place on the Internet and the need for continued privacy awareness.
In high profile accidents such as this one, a common sense approach to ethics on the Internet should also considered. Photography should also be addressed as well, especially with just about every cell phone out there today doubling as a camera.
Both sides share responsibility for this controversy. Despite Drennan_s intentions to help promote ATV safety, he fell victim to poor ACAD policy and awareness, as well as his own failure to communicate with his employer. Drennan_s final fate rests with his upcoming appeal to the ACAD board of directors. Perhaps they can acknowledge that both sides have learned from this experience and return an 11-year„EMS veteran to his position with the Adair County Ambulance District.Ray Kemp is a contributing photographer for„ JEMS„and the owner of 911 Imaging, a professional„EMS, rescue and police photography company. His 14 years in EMS included six years as public information officer for the St. Charles County Ambulance District in„Missouri.