Unintended Consequences – Hospital Drug Theft Leads to Class Action Privacy Suit

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By I. Jeffrey Pheterson

It is a good rule of thumb for businesses to always expect their actions to be reported on page one, above the fold, of the local newspaper.  If you are fine with that, then go ahead with the action.  If not, well that is something to think about.

A recent lawsuit alleges Sharp Grossmont Hospital in San Diego used hidden cameras to secretly record procedure room contacts with 1,800 patients at a women’s health center in El Cajon, California, including hysterectomies, sterilizations and caesarean births.  The cameras also allegedly recorded women undressing.  Lincoln et al., v. Sharp Healthcare, Sup. Ct., San Diego, CA.

How could this happen?  Well, a legitimate underlying concern existed for the hospital.  A listed anesthesia drug, propofol, repeatedly was being stolen from medication carts.  This is a serious problem indeed.  The solution?  The hospital allegedly installed motion-activated cameras as part of an investigation into whether an employee was stealing the anesthesia drug from drug carts in the operating rooms.

A six-count class action Complaint has been filed in state court in San Diego alleging breach of fiduciary duty, invasion of privacy – intrusion into private affairs, invasion of privacy under the California Constitution, negligence, negligent infliction of emotional distress and unlawful recording of confidential information under a California statute.

This became national news and bad news for the hospital.

The Complaint alleges that “Sharp secretly recorded approximately 1,800 patients using these hidden cameras.  In the words of a Sharp executive, “the video clips capture scenes within the three operating rooms, which are not open to the public.  There are images contained within the multitude of images of women undergoing operations of a very personal, private nature, unconscious and in states of exposure depending on the operating being performed.””

Click here to read the entire Complaint:

https://assets.documentcloud.org/documents/5787708/2019-03-29-Sharp-Batch-Complaint-FINAL-Pdf.pdf

According to Court documents, three cameras were installed and operated by the hospital to catch the thief and insure patient safety by identifying the person or persons responsible for the removal of the controlled substances.  Although the cameras were intended by hospital personnel to record only individuals accessing the anesthesia carts removing drugs, other people in the rooms, including patients and medical personnel in the operating rooms, were at times visible to the motion sensitive cameras and were recorded.

Companies have a responsibility to prevent thefts, especially when they involve controlled substances under heightened security protocols like anesthetic drugs.  However, surveillance equipment must be carefully and cautiously used, as unintended consequences may result with potentially catastrophic impacts.

Florida, like California, has a state Constitution which protects privacy.  There are statutes on the books which prohibit recordings of person without their consent.  And of course, there is significant exposure under tort law including negligent and intentional causes of action.  Plus, there is an inevitable public relations nightmare.

What should you do if a security issue like this arises at your workplace?

  1. Before embarking on a perceived solution, consider ALL consequences, and act with reasonable caution.
  2. Consult with legal counsel as appropriate.

Thefts must be stopped, and thieves dealt with.  However, this cautionary tale reflects the unintended consequences that may outweigh the use of seemingly self-evident and simple solutions.

Think about the results of your company’s decisions appearing on page one, above the fold, perhaps nationwide, before you authorize potentially disruptive or invasive actions.

Jeffrey Pheterson is a partner at Ward Damon, a multi-disciplined law firm primarily serving South Florida. Jeff is based in the West Palm Beach office and focuses on labor and employment law, business and corporate law, and complex commercial litigation as well as healthcare law, administrative law and probate litigation. If you need help with business matters or labor issues, you may reach Jeff at jpheterson@warddamon.com or 561-842-3000.

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