Question regarding HIPAA

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I have a question regarding family members taking photos. A family member wants to take pictures of wounds on a resident. I was told that it would be a violation of HIPAA. Is this true or not?

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Specializes in oncology, med/surg (all kinds).

is the resident capable of consenting? also, i am not sure about this, but your facility likely takes pictures of wounds, so that is part of the medical record, which can't be floating freely out in the universe. i don't think any good can come from allowing them to photograph wounds. this is very touchy, and you should document that whoever is in charge is aware--and whatever the closest thing you have to risk management should be aware. it seems like a HIPAA violation, but patients have rights and could consent to having the photos taken and if s/he couldn't consent, the family would have certain rights. this sounds like the kind of situation that could turn out very badly. also, a nicely healing surgical wound or perhaps an interesting drain (hey--some people have never seen a JP--who knows) is different than a decubitus ulcer. seems fishy. would love to know how you handle it.

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If the patient or a healthcare power of attorney can give consent, I don't know that you can prevent them from taking pictures.

My suggestion would be to make sure the facility also takes pictures (preferably with a date stamp) so that you guys are covered in the event of any kind of dispute.

Have you asked why they want the pictures? Does the family have a reputation for being litigious or difficult?

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Specializes in cardiac electrophysiology, critical care.

Hi,

good question, I will be interested to hear if anyone has an answer on this. I certainly think that a photo could be considered "protected health information" and therefore may be a HIPAA violation in certain situations if it (along with identifying information) is shared without the patient's written authorization (AND the sharing is not the type that falls under the "permitted uses and disclosures" category).

However, I also thought that HIPAA only applied to certain people/organizations ("health plans, health care clearinghouses, and any health care provider who transmits health information in electronic form in connection with transactions for which the Secretary of HHS has adopted standards under HIPAA").

So this makes it sound like the HIPAA privacy rule wouldn't apply to a family member?

I am curious if the patient herself is able to say whether or not she wants her photo taken? From your description of the situation, I am guessing that she is unable to advocate for herself one way or the other??

Source: http://www.hhs.gov/ocr/privacy/hipaa/understanding/summary/index.html

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Specializes in Surgery, Tele, OB, Peds,ED-True Float RN.

Resident says to daughter, "Can you bring in my camera and take a picture of this for me. I can see it vary well from this angle and I'm not sure it's getting better."

Daughter takes pic.

How can we stop this??? It's personal between mother and daughter!

If the resident is unable to consent like this then that is another story!

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Specializes in Surgery, Tele, OB, Peds,ED-True Float RN.

In the PP I meant to say... "I can't see this very well...." Sorry!

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HIPAA does not apply to family members.

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Specializes in Telemetry, CCU.
HIPAA does not apply to family members.

I'll play devil's advocate and say yes it does apply to family members, if the pt specifically states that they don't want a certain person to know anything about them. If the pt is awake and oriented, I would just ask them permission. If in doubt, talk to your supervisor.

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Specializes in Med/Surg.

We had this happen once with a family that had already attempted to sue the hospital once. They also wanted to record everything with a video recorder. Risk management and the lawyers got involved. The pt couldnt give her own consent but the daughter was MPOA/POA. The final decision was she (the daughter only) could take pics of her mom only while she was sitting up in a chair, no staff could be in any of the pictures and she could not take pictures of any wounds of body parts. She also was not allowed to tape anything as it violated everyone elses privacy. Its a pretty sticky situation and yes HIPPA does involve families too. If the pt doesnt want family to know info you cant give it to them.

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We had this happen once with a family that had already attempted to sue the hospital once. They also wanted to record everything with a video recorder. Risk management and the lawyers got involved. The pt couldnt give her own consent but the daughter was MPOA/POA. The final decision was she (the daughter only) could take pics of her mom only while she was sitting up in a chair, no staff could be in any of the pictures and she could not take pictures of any wounds of body parts. She also was not allowed to tape anything as it violated everyone elses privacy. Its a pretty sticky situation and yes HIPPA does involve families too. If the pt doesnt want family to know info you cant give it to them.

No, no, no, no. HIPAA does NOT involve the patients relationship with family members. It only involves certain specified groups and individuals, mostly health care providers, and other entities who work with health care information. If I write that my brother has HIV, that is not a HIPAA violation, as I am not a health care provider involved with his care. There might be privacy issues involved, but that's not the same as HIPAA.

You are right- if the patient doesn't want family to know, YOU can't tell them. There is nothing at all about the patient telling anybody. If the patient wants to take their own pictures- no HIPAA. HIPAA doesn't apply to family members, but it does apply to YOU.

If my brothers wife tells me he has HIV, again, no violation. If his doctor tells me, then, yes, it is a violation.

There is a big issue here that needs to be clarified.

Is the resident capable of providing consent? If the facility has some sort of POA, then HIPAA might-might- apply. If the person taking the pictures has POA or has the permission of the POA, then no HIPAA problem.

THere might be privacy issues- but, again, that is not the same as HIPAA (even though they both involve privacy).

HIPAA only covers you as a provider. It does not make you the HIPAA police.

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if the nurse practitioner is asking for the face sheet of the patient to fax to her is it violation?

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Specializes in Med Surg.

If a family member of a patient chooses to give intimate details about the patient's treatments and condition to the cousin nobody likes, HIPAA can't do a thing about it. That is true even if the patient has specifically stated they don't want this cousin to be given any information.

On the other hand, if said cousin calls asking for information and YOU the healthcare worker give it out, your butt will be grass and HIPAA wil be the lawn mower.

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