Sharp Hospital Apologizes For Privacy Breach As Video Sting Provokes Backlash
Thursday, May 19, 2016
A major San Diego hospital’s yearlong video surveillance of women undergoing surgery to track missing drugs raises questions about hospital operations and security.
Sharp Grossmont Hospital has apologized for releasing 14 video clips that included women undergoing obstetric surgery, an error it said constituted a breach of their medical privacy and has led to state and federal agency notification.
"We are very sorry that this error occurred and that the privacy of these patients was breached," the Sharp Grossmont statement said. The hospital mistakenly released the clips to an attorney representing a doctor the hospital said is seen in the videos taking bottles of sedatives from surgery carts and putting them in his pocket.
Hospital spokesman John Cihomsky said Grossmont is trying to identify each patient shown in these clips, and when it does it will notify them of the breach.
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Meanwhile, several women who underwent C-section surgeries to deliver their babies during the course of the hospital’s yearlong video surveillance in its Women’s Health Center say they are horrified they may be among those captured on video. They believe they never gave consent to be on camera during their most private moments with their doctors, while they were giving birth.
One, Melissa Escalera, 34, said she felt “violated.”
Carla Jones, 34, of La Mesa, who delivered her baby by unscheduled C-section, said she is "extremely uncomfortable" knowing her surgery on May 15, 2013, was on video and was viewed by people other than her doctors and nurses.
"If you're missing drugs, you don't just pop cameras in a place where women are naked. It's ridiculous that Sharp thought this was a reasonable way to figure this all out," Jones said.
Two anesthesiologists who worked at the hospital said they also were upset about the video surveillance.
Dr. Patrick G. Sullivan, former chief of the hospital’s anesthesia department who no longer works at Grossmont, said in an “Open Letter to the Public” Sharp’s operation should prompt “outrage,” and that women whose images were captured on videos “are entitled to damages.”
Sullivan said Sharp Grossmont, the second largest in the county with 528 licensed beds, “severely violated and betrayed the public trust of East County women and the East County community in general.”
Another Grossmont anesthesiologist, Dr. David R. Diehl, told a medical executive committee on April 10, 2013, that the removal of drugs probably wasn’t theft. “Anesthesia carts are unlocked and physicians often take 1-3 vials for emergencies; these are life and death situations,” according to minutes from that meeting.
Sharp Grossmont launched its surveillance operation with hidden cameras in three operating rooms at its Women’s Health Center on July 17, 2012, to determine why drugs, including the sedative propofol, were missing, Sharp documents say. Seven months later, in February 2013, the videos began to show that an anesthesiologist, Dr. Adam Dorin, was putting bottles of the drugs in his pocket, Sharp documents say. inewsource first reported about the video operation May 5.
The surveillance continued through June 2013, capturing Dorin taking a total of 12 bottles of medications, Sharp documents allege.
Nevertheless, Dorin, 52, continued to provide anesthesia services at the hospital until mid-October, when he resigned. The fact that he was allowed to continue working at the hospital raises questions about why, if hospital leadership believed he was taking, abusing or selling drugs for personal gain, it didn’t act more aggressively to remove him from the staff. It did not relay its concerns or file documents about its investigation with the Medical Board of California until after Dorin left in October for a new job in Palmdale.
“Why didn’t they send Dorin to the (Medical Board of California) immediately?” asked Duane Admire, an attorney who represents Dorin.
Sharp has not answered that question.
Admire said he has had numerous conversations with other doctors and nurses in the hospital who are angry that it conducted surveillance on them without their knowledge. It compromised physicians’ relationships with their patients, he said.
In April 2013, the hospital’s medical executive committee, an independent peer review organization that grants physician staff privileges, suspended Dorin but lifted the suspension the next day after learning that propofol was in short supply, and that many anesthesiologists grabbed it to prepare for emergencies. That was confirmed by Sullivan.
Those drugs were missing because, Sullivan wrote, “there was a year-long local and national shortage of propofol, and Sharp could not procure enough propofol to put patients to sleep in all areas of the hospital.” So anesthesiologists would take the drug from one area to another.
“There were literally times when patients were on the operating table with the surgeon ready, and there was no propofol to put them to sleep,” he wrote.
Admire wants to privately review the 14,000 or so video clips taken during the surveillance, saying they will exonerate Dorin by showing many doctors taking drugs just like Dorin did. They also will show Dorin replacing some of the drugs in other carts or using them on patients, Admire said.
Sharp has refused. It said releasing those videos would compromise patient privacy because they show women “exposed,” “under anesthesia,” and “in their most vulnerable state.”
Dorin and another doctor who still practices at Sharp Grossmont believe Dorin was targeted for discipline.
Dorin has acknowledged he has been a frequent whistle-blower, and often complained about safety issues at Sharp Grossmont. In 2008, he told the county medical examiner and a reporter for The San Diego Union-Tribune about a hospital error he said resulted in a patient’s death. The case resulted in a family lawsuit against the hospital.
In a phone interview Tuesday, Diehl said he attended that medical executive committee meeting on April 10 because he had learned that “they had set up these cameras, which I was quite upset about because they were like spying.”
Diehl said the story “is not about drug diversion (medical personnel taking medications intended for patients for personal use or gain). The real story was that Michele Tarbet (Grossmont’s former senior vice president and CEO, who is now deceased) had a vendetta against Dorin. When she found out he was taking the drugs, she used that against him to get rid of him. … She went to great lengths to do that.”
Diehl emphasized that he did not know exactly why Tarbet wanted Dorin off the staff.
In June 2013 the medical executive committee formally admonished Dorin because when he was first asked about the drugs, he denied taking them, and was thought to have lied about it. Admire said Dorin countered that he thought he was being asked if he took drugs outside the hospital, which he had not. The committee stopped far short of curtailing his ability to practice on staff.
Two weeks after Dorin left Sharp, Tarbet sent a letter to the Medical Board of California detailing Dorin’s brief suspension and subsequent admonishment. “Dr. Dorin’s conduct described above was potentially detrimental to patient safety and demonstrated a lack of integrity and honesty,” she wrote.
That got the Medical Board of California’s attention and it launched its own investigation. In January 2014, Sharp sent the medical board a thumb drive containing 12 video clips that the hospital said documented Dorin taking the drugs.
Last September, the medical board filed a formal accusation against Dorin, who subsequently hired Admire for his defense.
In reviewing evidence against Dorin, Admire noticed the thumb drive contained multiple clips with “extremely graphic” views of identifiable women undergoing vaginal or abdominal surgery, exactly what Sharp officials said they had not released.
“Of the first four patients that I happened to view before I quit and decided to figure out how best to deal with the problem, (I) discovered that two of the women patients were not under anesthesia — as one of them walked into the operating room, another you can clearly see was adjusting herself and her hair cap etc., and the other two, did seem to be under anesthesia,” Admire said in an e-mail.
In all, Admire said the thumb drive he received from the hospital included about 77 video clips. He said he watched about 12 and saw “at least five to six different women having procedures.” Some of the clips may show more than one patient, so it is unclear how many separate patients are visible.
On May 16, hospital spokesman Cihomsky said in an e-mail that the hospital had reported the breach to the California Department of Public Health and will report the breach to the federal Department of Health and Human Services Office for Civil Rights. He said in his statement: "Our intention was to send the attorney only the same video clips that were sent to the California Medical Board in January 2014 that contained no video of patients."
The California Department of Public Health said on Wednesday that it "is aware of the alleged incident(s)" and is investigating whether the Sharp Grossmont Hospital privacy breach constitutes a violation of the Health Insurance Portability and Accountability Act (HIPAA).
Under state law, the hospital could be penalized up to $25,000 per patient whose medical information was breached, and up to $17,500 per subsequent breach of that patient's medical information, with a cap of $250,000.
It said the U.S. Department of Health and Human Services also enforces HIPAA violations.
Questions remain about whether the hospital had the right to conduct widespread video surveillance of women undergoing surgery.
Cihomsky insisted the hospital did, because all patients sign the hospital’s Admission Agreement consent form before receiving services. The agreement reads:
"You consent to all hospital services rendered under the general and special instructions of your physician(s), and to the taking of photographs and videos of you for medical treatment, scientific, education, quality improvement, safety, identification or research purposes, at the discretion of the hospital and your caregivers and as permitted by law."
However, that consent form, Cihomsky said, does not give the hospital permission to release protected health information to outsiders. “We have a separate obligation to keep protected health information confidential,” he wrote in an e-mail. “We should not have shared the information with Mr. Admire.”
Julianne D’Angelo Fellmeth, administrative director for the Center for Public Interest Law and the enforcement monitor for the Medical Board of California, said in an email she’s “not sure if a patient can waive HIPAA and/or other rights via a blanket paragraph contained in an adhesive contract that a patient is likely forced to sign in order to receive treatment.”
“Most of the time, patients are not able to opt out of any of those paragraphs; plus the signature may be under duress due to the patient’s need for hospitalization,” Fellmeth wrote.
Melissa Escalera of Lemon Grove, who delivered her baby by emergency C-section on Sept. 4, 2012, said she was horrified at the idea her surgery was captured on video and is contemplating legal action.
"I feel violated, like my privacy and confidentiality were compromised, and that's not the feeling you want to have when you go to a hospital to give birth," Escalera said.
Dorin believes Sharp Grossmont is retaliating against him for being a whistle-blower in 2008 and complaining about other issues at the hospital.
He denies he used or stole drugs from the hospital, or used them for anything other than patients under his care.
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