Administration and Leadership, Columns

Pro Bono: The Patient Selfie Trend

Issue 7 and Volume 41.

The selfie craze seems to continue in full force. One paramedic recently commented that a patient took a selfie in the back of the ambulance against the paramedic’s wishes. The paramedic questioned what, if anything, can be done to stop this.

We all know that the Health Insurance Portability and Accountability Act (HIPAA) prevents EMS crews from taking pictures of patients and posting them on their personal websites without the patient’s permission. But what happens when the tables are turned? Can a patient take a picture of an EMS provider against the provider’s wishes and post the picture on social media? Do EMS providers have any right to privacy in the back of an ambulance?

People generally have the right to take pictures in public places. This means that if the ambulance is heading down a public street, people have every right to take a picture of it. But the inside of an ambulance isn’t a public place. Hospitals are beginning to adopt policies to prevent patient selfies inside the hospital out of fear that they’ll capture sensitive information regarding another patient. Ambulances, on the other hand, rarely have more than one patient in the back. Assuming that the ambulance is cleaned between calls, there shouldn’t be any protected health information lying around. So it’s highly unlikely that any patient taking pictures in an ambulance would violate HIPAA.

What happens if the EMS provider is the subject of the picture or is otherwise in the picture? What happens if they adamantly objects to having their picture taken, but the patient takes a picture anyway? What happens if there’s also a sign posted in the ambulance that prohibits patients from taking photographs? There has to be something the EMS provider can do to stop the patient from posting the picture, right?

EMS agencies can certainly post a sign in the back of an ambulance asking patients to refrain from taking pictures, but what can a provider do if the patient ignores the request and takes a selfie anyway? Grabbing the phone out of the patient’s hand could be considered battery. Many states have right to privacy laws, and the right to protection against unreasonable interferences with an individual’s right to privacy is well recognized. Although state laws on this will differ, in general, to have a cause of action for invasion of privacy someone has to:

  • Take your picture or image for their commercial advantage;
  • Publish facts placing you in a false light;
  • Publicly disclose a private fact about you; or
  • Intrude upon your private affairs or seclusion.

EMS providers don’t have any right to their own private affairs or seclusion in the back of an ambulance, and posting your picture taken in the back of an ambulance isn’t likely to disclose private facts about you or place you in a false light. This means that the only real way an EMS provider could have an invasion of privacy claim in the back of an ambulance would be if a reporter or an internet blog site would post a picture of a provider against their wishes. If the a selfie-happy patient takes a picture of himself with you in the background to tell his tale of woe on Facebook, there’s really not much you can legally do about it.

Although all EMS providers can probably agree that there ought to be a law prohibiting selfies in the back of the ambulance, right now there isn’t one. Of course, it was concerns similar to this that led to the passage of HIPAA. If this becomes a big enough problem, perhaps Congress or state governments will pass legislation to protect the privacy rights of EMS and other healthcare providers. Until then, EMS providers will have to rely on patients’ willingness to follow rules and directives.

Concerned EMS providers should talk to their agency’s management and suggest a policy be developed and a sign be posted in the back of each ambulance to inform patients of the policy. Then, when you see a patient take a picture, you can point to the sign and ask the patient to delete the photo. If that doesn’t work, you should inform management and refrain from commenting about the patient on social media-that could potentially be a HIPAA violation. Sometimes life is just not very fair, is it?