Cedars-Sinai Medical Center

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A BI-WEEKLY PUBLICATION FROM THE CEDARS-SINAI CHIEF OF STAFF March 24, 2017 | Archived Issues

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Who Gets to Observe Physician-Patient Encounters?

Joel M. Geiderman, MD, co-chair of the Emergency Department

When a Michigan woman gave birth to her fourth child in 1880, her physician brought a friend to witness the event. Upon learning that the stranger was not a medical professional but a jeweler and "tinker of watches," the mother sued them both — and won.

The case marked one of the first times the judiciary recognized a patient’s right to privacy in a medical setting. But since then, there’s been surprisingly little guidance about the observation of the physician-patient encounter.

These days, emergency departments and operating rooms commonly field such inquiries from medical educators and reality show producers. But with a lack of clear policies, how should providers evaluate the requests?

Joel M. Geiderman, MD, co-chair of the Emergency Department, examined the issue in a recent article published in the Annals of Emergency Medicine. He explored the identity of potential observers, their motivations and the ethical and legal concerns that accompany their being present.

"I have said 'no' many times, but I could find little direct guidance," Geiderman said. "When I wrote another article on commercial filming, some chairs with less authority in other departments told me it was good to have something to refer to."

In his most recent article, Geiderman described a range of observers, noting there are frequently valid requests from students seeking a medical career or people involved in the chaplaincy. Of lesser weight are appeals from pharmaceutical employees or artists seeking to enrich their work, Geiderman said. On the dubious end of the scale are reality TV shows, he added.

When considering potential observers, Geiderman suggested viewing them through the lens of patient privacy. When patients feel their privacy is respected, they tend to speak more honestly and openly about their health. This dynamic helps build a valuable bond of trust between physician and patient.

Patients, however, may be willing to forgo privacy for the sake of a social good like medical education. Some patients might even get a psychological boost participating in a documentary film. But physicians should be aware that some patients might consent to an observer out of fear of receiving lesser treatment if they refuse, Geiderman said.

From a legal standpoint, a patient’s privacy is safeguarded by federal law, and providers who knowingly violate privacy rules face stiff penalties. Federal law also mandates swift, unfettered treatment of emergency department patients.

In one striking privacy violation, New York Presbyterian Hospital agreed to a $2.2 million settlement after allowing a reality show to film a man’s death without consent. His wife learned about the footage only after watching it on television, according to news reports.

The American Medical Association also has developed policies to prevent unnecessary intrusions upon patients. The AMA policy states that if an outsider is privy to a patient encounter, the patient must be told of that person’s role and given the power to exclude them. If a patient lacks decisionmaking ability, the AMA policy adds that observation by a nonhealthcare professional represents a
"substantial invasion of privacy and generally should not be permitted."

The AMA also recommends distinguishing between observers who will contribute to patient care from those who won’t. It also warns against accepting payments in exchange for permitting observers.

Geiderman recalled a company that offered to pay up to $1,000 for a monthlong observership of foreign medical students. He cited research that showed even small gifts could influence physician behavior and have the potential to wrongly place an observer’s interests above a patient’s needs.

"The solicitation was pretty egregious," Geiderman said. "It felt like a payoff."

Ultimately, Geiderman advises that it is acceptable to seek patient consent for an observer only when the request will lead to discernible societal benefit. (Surrogates can consent on behalf of incapacitated individuals.)

If there is no clear benefit, he added, patients shouldn’t be asked.