EMS LEGAL TIPS & ADVICE
Should we get them on video?
By Stephen R. Wirth, Esq., EMT-P
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
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
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 “cov-
ered 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. JEMS
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.
Stephen R. Wirth, Esq., EMT-P, is an EMS
attorney and founding partner of Page, Wolf-
berg & Wirth, which represents EMS agencies
throughout the United States. He was one
of central Pennsylvania’s first paramedics
and has worked as a firefighter, EMT, paramedic, flight paramedic, EMS instructor, fire officer and EMS executive.
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.