By Tara Adams Ragone
As more and more potential uses of Google Glass in health care are discussed and tested, Nicolas P. Terry, Chad S. Priest, and Paul P. Szotek’s recent article, “Google Glass and Health Care: Initial Legal and Ethical Questions,” is an important read.
While noting that there are a number of potential positive ways to use Glass in health care, the authors focus in this Practice Resource on identifying legal and ethical questions raised by the use of Glass that must be addressed.
For example, providers and, in some cases, health care institutions need to consider the extent to which informed consent procedures need to be revised to reflect the use of Glass. Do the risks of distraction from multi-tasking need to be disclosed? If the Glass app is subject to FDA regulation as a medical device, would an experimental or novel use of that device need to be disclosed to the patient to secure informed consent?
The ability to transmit live streams of or to videotape patient encounters raises legal and ethical issues as well. Patients must consent, and outside viewers must agree in advance to maintain confidentiality.
These images or videos in many states also will be considered part of the patient’s medical record. As a result, the records must be maintained as required by the state’s record retention statutes and may be admissible in a subsequent malpractice action.
These images and videos created by Glass also are subject to privacy and security regulations. HIPAA-covered providers must comply with HIPAA’s non-disclosure, security, and breach notification requirements. Although the authors do not believe that data stored on hospital secure servers or a HIPAA-compliant cloud and accessed only for treatment, payment, and health care operations are likely to raise issues, they believe it would raise significant HIPAA privacy and security concerns to transmit the images or other patient information to Google. Unfortunately, as the authors note, Google does not presently have a publicly available business associate agreement for Glass.
Interestingly, while Glass “still uses unencrypted data transmission and non-compliant storage,” some of the apps that have been developed for Glass are HIPAA-compliant. Facilities and providers should consider whether to permit the use of Glass without apps that render it HIPAA-compliant.
Health care facilities also need to be on the lookout for early adopter-physicians who use their own devices, thereby bypassing the facility’s secure network and complicating the facility’s compliance with various HIPAA security rule requirements.
As the authors note in closing, the legal and ethical issues raised by the use of Glass will continue to evolve as more apps are developed to harness Glass’ technological potential and more is learned about the trade-off between risks and benefits. These issues are complex, and the legal questions will vary based on the specific facts and, in some cases, the particulars of state law. This article offers a practical starting point for consideration of these legal and ethical issues, including a useful risk management checklist. As the Glass technology and related innovations continue to develop, so will these legal and ethical issues, and we will need to keep an active and critical eye on these fluid and complex issues.
Tags: Google Glass