Fame, rights, and videotape☆
Article Outline
Abstract
[Geiderman JM. Fame, rights, and videotape. Ann Emerg Med. February 2001;37:217-219.]
See related article, p. 220 .
May the thirst for gain and the desire for fame
Be far from my heart.
—Prayer of Maimonides
12th Century
Several years ago, the out-of-hospital care coordinator at our hospital approached me to seek my approval, as department chair, for participation in what she termed “an exciting media project.” A cable television production company was proposing to film a reality-based program that involved riding along with paramedic units, filming critically ill and injured patients at the time they were initially evaluated and treated, and accompanying them as they were brought into the emergency department for either lifesaving stabilization and treatment or to be pronounced dead. The proposal letter explained that the “video journalists” on the project would work alone and carry small digital cameras that allowed for “a kind of intimacy and accuracy you normally don’t see on television.” There were assurances that the crew would adhere to the “journalistic standards” (never defined) of the parent company, a well-respected newspaper, and that a signed release would be obtained from “every person appearing on the screen.”
My first response was to question how, under such circumstances, a truly informed consent for videotaping these patients could be obtained. I was told that the patients would routinely be taped and then asked for their permission to be shown on television and that those who declined (or objected) would not be shown. The problem with this approach was immediately apparent: by the time the patient was asked for his or her permission to participate, the right to privacy would have already been violated. I flatly refused to take part in such a charade.
What followed was a firestorm of sorts. The filming was set to begin on the day the project was presented to me and, in fact, by the time I refused, television crews were already riding with city ambulance units that brought patients to our hospital (the regional emergency medical services [EMS] medical director had already approved the project). Furthermore, the paramedics, as well as many of our physicians and nurses, had been excited by the prospect of appearing on national television. All were upset by my decision not to participate. It was pointed out to me that various other agencies and institutions had agreed to participate and that only we were not going along. (This reminded me of the arguments one gets from teenagers who are told by their parents that they cannot do something; namely, “look who else is doing it,” or, “everyone else is doing it.”) In addition, several personnel were distressed by the loss of face they were suffering because of my decision not to take part in this video venture. Oh, to endure the loss of one’s 15 minutes of fame.
At that point, feeling the pressure, I took the extraordinary step of calling for an “administrative” bioethics consultation. The distinguished head of our bioethics program, who immediately responded, unflinchingly counseled that not only was this after-the-fact consent not ethical, but that even if consent were obtained in the field before taping, it would be rendered suspect by the conditions (and possible duress) under which it would be obtained. Patients or their surrogates who were approached under such difficult and traumatic circumstances would be in no frame of mind to give valid consent. Arguably, they would temporarily lack capacity to give such consent. They easily might also feel that they would receive inferior care if they did not accede to the wishes of their caregivers. (Patients or surrogates in this latter situation are sometimes referred to as being of inferior rank in a “status relationship.”1) It became apparent that there was no workable arrangement under which acutely ill and injured patients being treated in the field by EMS personnel could ethically be videotaped for later airing on television.
Much to my dismay and surprise, it came to pass that not only was the proposed program successfully videotaped (in venues that did not include our hospital) and aired, but several other copycat and derivative programs either already were on the air or would eventually be produced. In fact, the phenomenon of the media observing and filming in EDs had and has become so commonplace that many well-meaning and esteemed practitioners and institutions have participated precisely because it appears so “normal.” Unfortunately, in the United States, the notion of the ED as theater has developed and flourished virtually unchallenged. Herein is presented the challenge.
Over the past couple of years, requests for filming in our ED have recurred on a regular basis. On one occasion, a television production company approached the well-known hospital where I work and proposed mounting video cameras in our critical care rooms to record resuscitations on a routine basis. This aroused an additional concern in me—namely, that the presence of such cameras might deter patients from coming to the ED. In response to this, I was given the reassurance that if, for instance, a member of our Board of Directors or a celebrity was brought in, they would not be filmed. This clearly runs counter to the principle of distributive justice (it also fails the “universalizability” test2) in that the burdens of potentially being exposed and filmed during a moment of crisis would fall unequally on various members of society. In a more recent situation, a network news producer proposed that a crew be present during a trauma resuscitation but not film the patient’s face. Instead, the cameramen might film a trauma resident’s facial expressions or follow his or her hands while a procedure was performed. I asked the producer how she would feel if she were brought into the ED and had all of her clothes cut off and had intravenous lines, a nasogastric tube, and a urinary catheter inserted under the watchful eye of cameramen. Her answer was that she “would not like it” (thus failing the “impartiality test”2) and the discussion promptly ended.
Colleagues from around the country have assured me that requests for such filming are widespread. News outlets in every major market have 2 to 3 hours of local news programming to fill every day, and nothing sells better than “live” coverage of some event. In addition, networks have film crews stationed throughout the nation, gathering footage for their reality-based offerings.
What are these offerings anyway? Although news organizations argue that these programs help fulfill some societal “right to know” or that these events are in the public domain, the actual fact is that reality-based shows provide low-cost programming to outlets hungry for original content with which to fill time slots. And for the public, these programs offer little more than titillation and escape. In the final analysis, what do these programs offer other than to move the scene of the freeway accident, prone to miles and miles of neck-craned, slowing motorists, into the home? Is this anything but voyeurism? One is reminded of the classic satirical film Network and the more recent phenomenon of Who Wants to Marry a Multimillionaire. What will come next, Who Wants to be a Trauma Victim?
Aside from ethical considerations, the practice of filming in emergency situations without adequate consent raises significant legal concerns. There is, of course, a constitutionally held right to a reasonable expectation of privacy. It is hard to argue that a patient brought into a hospital as a trauma victim cannot reasonably assume that a news crew will not surreptitiously videotape them. Lawsuits have been filed in relationship to reality-based television shows involving police. In Wilson v Lane, the US Supreme Court ruled that reporters violated a suspect’s privacy rights by accompanying police into his home; it also ruled that a lawsuit could be brought as a result of this action.3 Illegal videotaping in other venues has also resulted in successful litigation.4
A guideline for allowing cameras into the ED for legitimate purposes might be that cameras and crews be allowed in halls and public places where they could view what the average public might view. (This would be similar to the placement of security cameras where they are allowable in corridors or open workspaces but not in offices or locker rooms because there is a reasonable expectation of privacy in the latter, but not the former.) Close-ups and viewing of identifying features should be avoided, and there should be no “staring” at emotionally distraught individuals, and no sensationalism. Noncritical patients could be approached prospectively about their inclusion in videotaping, as could staff. Informed consent should be obtained by disinterested third parties and not members of the media. Finally, any patient who becomes uncomfortable with the process should have a right to withdraw or change his or her mind about the airing of a taped segment.
As mentioned, respectable and ethical individuals and institutions have allowed filming to proceed in emergency encounters because there has not been a thoughtful analysis of the ethical issues involved. The very nature of emergency care does not lend itself well to premeditated analysis, and consent that is necessary in some circumstances is sometimes waived during emergencies. The US Food and Drug Administration has even waived the requirement for consent in human research in some emergency situations.5 However, it is one thing to waive informed consent to perform emergency research to save a patient’s (or a future patient’s) life, and quite another to do so to produce a television show. This practice should end.
Acknowledgements
I thank Douglas E. Mirell, Esq., for his review of the constitutional issues raised in this article.
Response by Kenneth V. Iserson, MD, MBA
[Iserson KV. Response to fame, rights and videotape. Ann Emerg Med. February 2001;37:219.]
Innovative ideas and technologies have inevitably led to high-minded, but specious, denunciations. Fear and embarrassment are often the primary motivations. In the case of filming emergency department medical care, both our patients and our profession will ultimately benefit from the exposure.
Fear makes some people want to hide what actually goes on in EDs from the public. This should not be unexpected, and it is certainly not unique to our situation. For example, the US Congress and US courts blocked filming within their own institutions for decades. Many high-minded reasons were given, but the reality is that they feared that some of their dirty little secrets (such as very few Congressmen being present and judges sleeping on the bench) would be revealed. The US Supreme Court still bars cameras—presumably for the same reason (or maybe because most of their sessions are just too boring).
Once the mystique is removed, the public, including those preparing to enter the health care field, may appropriately question the suitability and ethics of actions taken in the ED. A first-year medical student, for example, recently asked me whether performing a painful procedure without analgesia or sedation (as he saw a senior surgical resident do to an ED patient in such a television documentary) was either ethical or appropriate. Who has been reviewing these actions, asking these questions, and modifying behaviors until now? It is now the public’s turn; it’s about time.
Promoting education is the ultimate goal of filming in the ED, but I suggest that emergency medicine may receive as much education as does the public when they seriously begin to question some of what we do and how we do it. It may not be pretty, but our patients and our profession will certainly benefit from the exposure.
References
- Updating protections for human subjects involved in research. JAMA. 1998;280:1951–1958
- . Bioethics. In: 4th ed. Rosen P, Barkin R editor. Emergency Medicine: Concepts and Clinical Practice. St. Louis, MO: : Mosby; 1998;
- Wilson v Lane, US Supreme Court, 119 S Ct 1692 (1999).
- Shulman v Group W Productions, Inc., Supreme Court of California, S058629 (1998).
- . Protection of human subjects: informed consent and waiver of informed consent requirements in certain emergency research; final rules. 61 Federal Register 51497-51531. October 2, 1996;
☆ Address for reprints: Joel M. Geiderman, MD, Cedars-Sinai Medical Center, 8700 Beverly Boulevard, #1110, Los Angeles, CA 90048; 310-423-8780, fax 310-423-0424; E-mail GEIDERMAN@CSHS.ORG .
PII: S0196-0644(01)29527-4
doi:10.1067/mem.2001.113559
© 2001 American College of Emergency Physicians. Published by Elsevier Inc. All rights reserved.
Refers to article:
- Film: Exposing the emergency department
