Should Doctors Stop Patients From Taking Smartphone Pictures?

First physicians had to hang signs to remind patients not to talk or text on their cellphones so they would not disturb others. Now that cellphone capabilities have expanded, physicians have a choice: Do they extend that warning to taking pictures with a smartphone?

Though the ban on telephone conversations was motivated by an attempt to keep down the annoyance factor, the implications of snapping pictures inside a practice can go beyond other patients getting a little irritated. If picture-taking is left unfettered, patients could feel violated and sense that a practice doesn’t take patient privacy seriously. On the other hand, if patients want to break out the smartphone for a few shots, is a practice just picking a fight by instituting a no-pictures policy?

How a practice is held accountable when one patient violates another patient’s privacy can be tricky because, technically, patients cannot violate the Health Insurance Portability and Accountability Act. Ultimately, practices are duty-bound to do all they can to create an environment that respects patients and their privacy, experts say. If a patient’s waiting-room picture that gets posted on Facebook happens to include other patients, HIPAA violation or not, those patients might not be too happy.

The first step a practice can take to protect patients from violating one another’s privacy is to identify potential risks associated with smartphone camera use, said Jorge Rey, information security and compliance director for Kaufman Rossin., an accounting firm in South Florida. Those risks may include taking and distributing pictures of patients.

Attorney Andrew Blustein, a partner with Garfunkel Wild in New York, suggests that doctors put up signs declaring their practices a “picture-free zone,” including inside the exam room. Not only do cameras place other patients at risk of exposure, but those pictures could be used against a physician or, at the very least, create an uncomfortable environment.

Blustein said that if a patient’s privacy has been violated, regardless of whether the violation was caused by a fellow patient, he or she has every right to file a complaint with the Dept. of Health and Human Services Office for Civil Rights. The department will not know whether the violation was caused by another patient until it investigates the situation. Even so, investigators will look for patient privacy policies and evidence of training and policy enforcement.

The key to a successful “no photo zone rule” is allowing no exceptions, even seemingly innocuous pictures, such as a baby’s first trip to the doctor. “You can’t create a culture but say here are the five to 10 exceptions,” Blustein said. “So what to do with the mother who wants to take pictures? Well, that’s a question each practice will have to answer.”

Alan Brill, senior managing director at Kroll Advisory Solutions, said that if the prohibition of pictures is framed in a way that explains that the rule is in the interest of protecting privacy, patients will understand.

But, he said, while it is prudent to prohibit taking pictures inside a practice, he wouldn’t recommend that practices ban smartphone use altogether. When patients are sitting in waiting rooms, the wait will seem shorter if they can surf the Web, watch videos and check emails from their smartphones. Preventing them from doing so will just alienate or anger them, as well as create a high sense of anxiety for patients who already are nervous.

Because patients will have their smartphones out and in their hands, staff must pay careful attention to stop those violating the no-photo rule.

And because patients cannot be monitored at every moment, the practice must think about other potential dangers, such as unattended files or unlocked computers in exam rooms, where patients could snap screen shots while they wait. These are HIPAA-based guidelines that should be followed regardless of any photography rule.

However, some physicians said they haven’t gone so far as to ban taking pictures. Instead, they communicate to patients some do’s and don’ts about taking shots in certain places and situations.

Ariel Soffer, MD, a cardiologist with Soffer Health Institute in Aventura, Fla., encourages using smartphones — and even taking pictures with them.

“There’s a great place for smartphones in medicine,” he said. Dr. Soffer feels so strongly about this, he developed an app that sends pictures in a secure, HIPAA-compliant way.

But, he said, patients always should expect privacy in the office. Therefore, he does not allow photography in the waiting room. It’s a rule that is not posted but is enforced by staff.

Even though he doesn’t want patients snapping pictures of one another in the waiting room, he encourages them to use smartphones for other things, such as looking up medical information and watching videos. He has a dedicated Wi-Fi network in his waiting room.

Brill also recommends a dedicated patient Wi-Fi network because of the security threat associated with giving patients access to the same Wi-Fi network that practice’s employees use.

However a practice decides to handle smartphone and photography use, it must establish specific policies. Then employees must be trained on the policies and ensure they are enforced.

Jorge Rey, CISA, CISM, is a Cybersecurity & Compliance Principal at Kaufman Rossin, one of the Top 100 CPA and advisory firms in the U.S.