Administration and Leadership, Columns, Patient Care

Pro Bono: Capturing Dying Declarations on Video

Issue 12 and Volume 42.

Should we get them on video?

Dying declarations are usually made by a conscious patient who believes that death is imminent and communicates information about the circumstances surrounding their critical injury and subsequent death. In some cases, these statements may be the last best hope for capturing-and convicting-an alleged perpetrator.

Normally, statements made by individuals who aren’t available for cross-examination are considered inadmissible hearsay in a court of law. However, there are exceptions to this rule, and a person’s dying declaration is one of them.

These statements are considered much more reliable than typical hearsay because: 1) it may be the only evidence available from the sole eyewitness to the incident; and 2) when in fear of imminent death, the patient is presumed to lose the motivation to lie.

In May 2016, JEMS published an article by Kristin Spencer and Andrew Fulkerson describing the circumstances in which a patient’s dying declaration may be admissible as legal evidence.1 The article provided excellent pointers on how to accurately document these patient statements in your patient care report (PCR).

But what about obtaining video of a patient statement? Federal and state courts have specific rules and procedures for the introduction of video evidence to ensure its reliability, but they’ll generally allow these videos to be admissible as evidence when they’re relevant to the case and deemed to be reliable and non-prejudicial.

Patient Privacy

These videos become part of the patient’s medical record. Any video taken by an EMS practitioner capturing the physical or mental health condition of a patient is likely protected health information (PHI) and subject to the patient privacy protections under HIPAA as well as state privacy laws.

Those laws don’t prevent you from creating the video, but they do provide restrictions on how it’s used. The EMS agency that’s a “covered entity” under HIPAA shouldn’t release any video that contains any PHI-unless there’s an appropriate exception under HIPAA and state privacy laws.

For example, many state laws require mandatory reporting to law enforcement about victims of abuse, neglect or domestic violence. If an entity believes the disclosure is necessary to prevent serious harm to the patient or other potential victims, HIPAA allows the covered entity to exercise professional judgment and release PHI to law enforcement. If the patient is unable to agree to the disclosure (i.e., incapacitated) and time is of the essence, PHI can be released-provided that law enforcement assures that it won’t be used against the patient.

If a covered entity believes that disclosure of PHI is necessary to prevent or lessen serious and imminent threat to the health or safety of a person or the public, the PHI must be released to someone who is reasonably able to prevent or lessen the threat (e.g., law enforcement). PHI can also be released to the target of the threat.

There are other specific law enforcement disclosures that are permitted under HIPAA, and most require proper legal process, such as a subpoena or warrant, and/or assurances that the information released to law enforcement won’t be used against the patient.

In all cases, it’s critical to consult expert legal counsel before releasing patient statements or patient information. Establish a comprehensive policy now so you don’t have delays during an active criminal investigation, when lives may be at stake.

The Big Question

Should EMS practitioners even be recording video statements when the primary concern is patient care? Your agency needs to decide whether it allows providers to obtain video statements. If your agency does permit videos, you need to consider the type of devices used and what happens to the videos.

Any patient-related videos should be obtained on company equipment, such as an ePCR with video capability. If a video must be captured on a personal device due to urgency, establish a policy that provides for the prompt transfer of video to company equipment as well as the immediate destruction (and verification of destruction) on the personal device.

Your EMS agency must have a comprehensive policy about the circumstances in which patient videos may be obtained, as well as policies about how they’re stored and released. Videos should be stored the same way you would store other PHI. Releasing a patient video to anyone not involved in the direct care of the patient should be reviewed with legal counsel prior to release.

At the end of the day, it’s up to the patient. If they don’t want to be recorded on video, then don’t obtain it. If the patient does consent, get that verbal consent on video.

Finally, never allow obtaining patient video statements to take precedence over patient care-that must be the number one priority. In many cases, the EMS practitioner simply won’t have the time to record video-even if the EMS agency permits it.

Reference

1. Spencer K, Fulkerson A. He’s dying to tell you: Will his last words help convict his killer? JEMS. 2016;41(5):44-47.

Pro Bono is written by the attorneys at Page, Wolfberg & Wirth, The National EMS Industry Law Firm. Visit the firm’s website at www.pwwemslaw.com or find them on Facebook, Twitter or LinkedIn.