fireEMS ❘ By Jay Fisher
Imagine the following scenario: You and your partner respond to an auto pedestrian crash on a moderately busy street in the center of a small city. Because of traffic delays, the response time is not the best—10 minutes to the patient—but, it is not extremely bad by any measure. You find a middle-aged female lying in the road; she never lost consciousness and has moderate lower leg trauma. The patient is belligerent because of the perceived slow response and is inconsolable. Despite your best efforts at verbal deescalation, the woman continues to berate the crew. This harassment becomes too much, and you feel your emotional control slipping away. Just as an insult fusillade is about to emerge from your mouth, you look up to see multiple parties holding out cell phones and videoing the entire encounter. Your anger becomes instantly displaced as you now want to shout at every person acting as a modern-day voyeur at this emergency scene. What do you do next?
Does this situation sound unrealistic? Absolutely not. North American roadways do not seem to be catching up with population growth, leading to an increase in crashes and scene response delays. Public safety workers have always taken the brunt of the public’s ire when service has fallen below anything considered spectacular.
And cell phones? There is only one word to describe their penetration into society—ubiquitous. They are literally everywhere. Every person on the streets nowadays has the capacity to be a live-action reporter, and the impact this has on society is tremendous. Remember one of the earliest incarnations of this “viral video” phenomenon—the videotaping of the March 1991 Rodney King beating? Instant video capacity means we are all potentially under surveillance at any time.
The issue becomes whether the nature of emergency medical services (EMS) work, which involves medical care and potential confidentiality issues, somehow affects what can be videoed and when. Should EMS workers be concerned when they see the general public scrutinizing their actions at an incident scene? Can they insist that the voyeur stop what he or she is doing? This article examines those parameters and suggests tactics to address the situation.
The Legality of Video
Generally speaking, no person has an expectation of privacy when out in public. If you are walking down a public street and see someone holding up a cell phone camera videoing your every move, that is perfectly legal. The key phrases to recognize here are “reasonable expectation of privacy” and “the right to be left alone.”1 Put simply, you have no expectation of privacy if you put yourself out into public view.
Things start to get a little hazier once a person enters a sphere where a reasonable person would expect privacy to be respected. The obvious example of this would be a person’s home. The not-so-obvious example would be inside a private business or inside a privately owned vehicle-for-hire.
No rational person would accept a perfect stranger’s walking into someone’s house and video recording the everyday affairs of the occupants. A homeowner’s expectation of privacy inside his residence is paramount. In one case in California,2 the wife of a patient who died of a heart attack was permitted to move forward with her lawsuit against a film crew that followed paramedics into the house to record medical interventions without asking the homeowner’s permission. The footage was later used on a television show without the spouse’s permission or knowledge, causing the wife great emotional distress.
In the EMS sphere, the obvious place someone would expect privacy to be honored is in the back of the ambulance. Once the crew and the patient are loaded, it is foreseeable that potentially invasive procedures may occur and that seclusion should be the order of the day (think of disrobing a female patient to acquire a 12-lead ECG).
However, even this is not so clear-cut. What if you load a critical patient, stay stationary to perform some critical procedures (for example, intubation or securing an IV), and you do not shut the back doors to your rig? What if someone video records all your actions standing outside the ambulance with the doors thrown wide open?
Once again, the general rule is that these recordings are legal. Recording events that would otherwise be private (such as the goings-on at a private citizen’s property) from a public vantage point does not intrude on a person’s seclusion.3 This general rule even extends to video recording from the street what is happening inside a vehicle through a car window.4
Consequently, we should conclude that the law in the United States is generally favorable toward the average person recording the goings-on in public. There are two major reasons for this. First, the First Amendment of the United States Constitution guarantees a free press. With the advent of cell phone technology, it has become extremely easy for the average citizen to become a reporter by simply hitting the “record” button. Thus, the courts have become very hesitant to define who is a “reporter” for news purposes.5 Second, the courts have recognized that a citizen has a protected interest under the First Amendment to record the activities of public officials or contractors carrying out public functions (such as EMS) under a right to know the government’s goings-on.6
What to Do?
It should be obvious that there are times when a person should not be on video. The sick and injured are having a bad day. These people would not want anyone making recordings of what may amount to the worst day of their lives for other people’s entertainment on YouTube.
However, as the legal ramifications of video recording explained above show, people in public generally have no right to privacy. So, should the members of an ambulance crew just throw up their hands and say, “Oh well!” when they observe the actions of the video recorders and the patient’s pain being recorded?
No, they should not. Here are a few tips for EMS professionals to, hopefully, stop a video recording being made at an inopportune time:
- Ask nicely that the person stop recording. Believe it or not, there are still rational people in the greater public who respond to reasoning. Assuming you have time and resources to momentarily step away from your patient, if you politely ask the individual to stop recording because that person would not want similar exposure to happen to his or her mother/father/sibling, this will cause some people to respond positively.
- Make the public private. If you look up and see prying eyes (and cameras) in the public studying your every EMS move, it may be best to scoop up your patient and move to a private setting (the inside of an ambulance with the doors shut and the windows blocked off with a sheet, for example). Any reasonable person would consider the inside of a vehicle with no window view a private setting. There is precedence in law for this idea.7 Additionally, the procedures you then carry out in the back of your ambulance out of the public view would be covered under patient confidentiality laws (read: HIPAA). If you look outside your rig and notice people trying to pry their eyes into the rear compartment to see or record the goings-on, it is time to get law enforcement involved and explain that an invasion of privacy or public disturbance is occurring.
- Assess the scene—are you in a public setting? Obviously, a stranger cannot walk into a person’s house and start recording an EMS crew treating a patient inside the residence without appropriate permission and waivers. However, sometimes we find ourselves in private settings and might not even recognize it. For instance, is your call on a private roadway in a gated community? This is not a true “public” setting. If this is the case, you can make a plausible demand for any on-site private security to stop bystanders from recording (especially if recording in that location is prohibited). Are you tending to a patient inside a store that prohibits video recording in all instances? If so, you can request that store management demand that bystanders stop recording the call or face eviction from the business.
- Request that law enforcement take note of the recording person’s name, address, and telephone number because the recording may be evidence in future court proceedings. The idea behind this tactic is that the recording party will be concerned that his or her cell phone will be used in future legal proceedings, thus potentially denying the owner of the device for some unknown period of time. The recording party will then stop recording out of such concern. Also, you can ask the officer to strategically position himself between the recording party and your patient when getting information from the individual, thus blocking any recorded image. There is a foothold in reality for using this tactic. If your patient is the victim of a crime or a tort, it is foreseeable that any recordings of the scene may have evidentiary value in future litigation. This tactic, however, can be considered controversial and has a decent chance of failure. First, you are not asking the police to seize the cell phone and deprive the recording party of the device; that would be illegal. Thus, the recording will potentially continue. Second, you are asking the police to get involved with someone who is not doing anything illegal. Third, there is the chance this tactic will fail when the recording party tells the officer to “go pound sand,” that he or she is not doing anything illegal; the officer will have no other recourse except to walk away. All that said, this tactic might buy you time to get your patient on the stretcher and out of public view.
- Practice excellent patient care. Sometimes, you may find yourself in a setting where bystanders are recording and there is nothing you can do to address the situation. Your attention is rightly focused on the patient. Ask yourself: What do I fear in this situation? Am I afraid that I may mismanage the patient and errors will be preserved for all to see? Do I fear ridicule and criticism from my EMS peers? The easiest way to remedy this situation is to have confidence in your skills and carry out excellent patient care. Make the recording evidence of your competency vs. an exhibit of your failures.
The ubiquity of cell phone technology and Web sites where recorded material can be posted nowadays means that all of us run the risk of instant (and potentially unwanted) Internet fame. This is especially true of EMS work. The fact that EMS scenes involve lights, sirens, big equipment, and the sick or injured means that ambulance crews are likely to be the center of video attention. Because numerous EMS calls happen in public settings, your hopes of privacy are basically nonexistent. However, using common sense and these tips can help you and your patient get the upper hand on privacy again.
1. Prosser, William L., “Privacy,” California Law Review, Aug. 1960; (48:3).
2. Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463 (1986).
3. N.O.C., Inc. v. Schaefer, 197 N.J. Super. 249 (N.J. Super. Ct. Law Div. 1984).
4. Texas v. Brown, 460 U.S. 730 (1983).
5. Glik v. Cunniffe, 655 F.3d 78, 79 (1st Cir. 2011).
6. State v. Russo, 407 P.3d 137 (Hawai‘i 2017).
7. Brown, supra.
JAY FISHER has practiced law for more than 17 years in Georgia and Colorado. He specializes in civil litigation. He is a volunteer fire medic with the Rattlesnake and Kiowa (CO) Fire Protection Districts and works part time as a paramedic for American Medical Response in Boulder, Colorado.
Ran in Issue 11 and Volume 172.