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Is it a HIPAA violation for a sales rep to be present during surgical procedures and taking pictures?

Friday June 14, 2013
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Dear Nancy,

I work in a hospital that performs complex surgical procedures. While in the operating room, I observed a sales representative for implanted items taking pictures on his iPhone. Also, during the surgery there were many inappropriate things being said among the surgeon, sales representative and other staff in the room. I was told that the sales representative is there for every procedure and hangs out with the people that are on the team. I am thinking of calling our compliance hotline. Is this a HIPAA violation?


Nancy Brent replies:

Dear Margo,

It would be best for you to speak with your compliance officer about what you observed and about your concerns. Before doing so, be certain you have all of the facts surrounding the situation and ask that the conversation with the compliance officer be kept confidential.

It may be that the patient gave his or her consent for photographs to be taken by the sales representative, especially if the surgery was quite complicated or if it were a new device or a new technique being used during the surgery, but that cannot be taken for granted, so the compliance officer can investigate this.

You did not specify what the comments were that you heard during the surgery. The compliance officer also can evaluate these conversations and if any violations of hospital policy or applicable laws were involved, it can be handled through his or her office.

If you would feel more comfortable, you always can consult with a nurse attorney or attorney in your state who can provide you with guidance about how best to approach the compliance officer.


Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.