Legal: Using patient videos for teaching requires informed consent

July 1, 2008

Dr. Photo has lectured at numerous American Academy of Dermatology meetings. His lectures are well-attended and receive the highest attendee rankings. His PowerPoint presentations are always noted for their exceptional clarity.

Key Points

D. Photo has lectured at numerous American Academy of Dermatology meetings. His lectures are well-attended and receive the highest attendee rankings. His PowerPoint presentations are always noted for their exceptional clarity.

Recently, Dr. Photo added videos to his presentations. Physicians have applauded the learning value of these videos. After a recent lecture, he is served with a lawsuit for showing a video of a recently treated patient without her permission.

He is shocked. She had signed a consent form that allowed him to both perform the dermatologic procedure as well as take photos of the procedure; however, there is no mention of videotaping in the consent form.

He assumes that consent for photos should also apply to actual videotaping of the performed procedure.

Privacy concerns

When looking at the right to show such videos, the courts have recognized that a patient always has discretion regarding consent to being videotaped in a medical procedure.

The value of individual patient privacy must be weighed against the public benefit of learning from the videotape. For the videotape to be used, even for educational purposes, the physician must obtain specific consent from the patient.

The need for consent for the physician to use photographs of a patient was demonstrated in the well-known case of Vassiliades v. Garfinkel's. In this case, the District of Columbia Court of Appeals held that a physician invaded the privacy of a patient, because consent was not obtained before photographs of the patient were shown at a presentation.

The court concluded that the photographs were "embarrassing and emotionally distressing," and the publicity was highly offensive. The court concluded that the privacy rights of the patient outweighed the public's right to knowledge.

Videotapes of a medical procedure, like photographs, could have a great effect on the education of the public and learning physicians. However, the court stated that the privacy rights of the individual could never be overlooked.

Informed consent

The principle of informed consent establishes the patient's right to consent to treatment or procedures after being informed of the benefits or risks involved.

The informed consent doctrine has three goals - to include the patient in the decision-making process, to involve the patient in values and choices that affect the social and physical aspects of life, and to ensure the patient is aware of the potential benefits and hazards of the treatment.

Therefore, the informed consent doctrine would logically apply to patient approval of the videotaping of medical procedures, much as it would apply to the performance of that very same medical procedure.

In complying with the principle of informed consent, a physician or his videotaping personnel should notify the patient about the benefit of the videotaping.

Potential patient care benefits might include the effective documentation of the procedure, the use of the taping as a reference for future procedures and/or the use as a teaching tool for other physicians.

There is value in using videos for teaching purposes, but acquiescence to the videotaping must come with appropriate patient consent.

Guidelines

Such an approach is consistent with the guidelines published by the Interagency Committee for Medical Records. These guidelines recommend a uniform approach for the videotaping of medical procedures, specifying, in part, "The patient must provide written consent before an episode of care is videotaped."

Although the report suggests that videotaping for educational purposes may be justifiable, such videotaping ideally should have some benefit to the patient.

Of note, the guidelines also mandate the destruction of the videotapes after written documentation of the episode of care is complete.

The only exception to this provision is that the videotapes may be retained "for a specific interval for a specific reason."

What that time interval is, and what the specific reasons are, remain unclear. However, at some point, it would prudent to destroy such videos, because doing so would ultimately protect a patient's privacy rights.

Dr. Photo should be lauded for the quality of his teaching presentations. Adding videos only improves the value of his presentation.

However, he must be certain that his patients have provided consent for videotaping and are aware of his purposes.

Dr. Goldberg is the director of SkinLaser & Surgery Specialists of New York and New Jersey; director of Mohs surgery and laser research, Mount Sinai School of Medicine; and adjunct professor of law, Fordham Law School.