EXECUTIVE SUMMARY
Hospital security footage of ED waiting rooms can play a pivotal role in malpractice litigation. Some factors that can determine the admissibility of this footage:
- Visibility of other individuals;
- The ED’s physical layout in terms of making the event observable;
- The fact that time-lapse recordings were used.
In some highly publicized malpractice cases involving the ED, no one had to wonder what happened right before the patient died; the hospital’s security camera in the waiting room captured it all.
“A video of this type would be catastrophic for the defense, if admitted,” says Dan Groszkruger, principal of Solana Beach, CA-based rskmgmt.inc.
In an infamous case from July 2008, footage captured in a Brooklyn psychiatric hospital not only showed a patient collapsing on the floor of a waiting room, it also provided evidence of exactly how long she remained on the floor without anyone examining or treating her. “The video was both relevant and persuasive evidence of neglect,” Groszkruger says.
Not all such cases are well-publicized. Groszkruger is aware of another similar case in which security cameras documented apparent neglect or delay when a patient suddenly deteriorated, seemingly ignored by ED staff. In that case, the patient was revived but expired later due to her underlying condition. The case settled before evidentiary issues were presented to the court, so it is unclear how the judge might have ruled as to the videotape’s admissibility.
“But the important message is that if you have such a videotape, the mere possibility of its admission at trial is often sufficient to motivate the defendants to settle,” Groszkruger cautions.
Admissible, or Not?
Does an ED nurse claim she reassessed the patient at regular intervals, but the family says their loved one’s deteriorating condition was totally ignored?
“The issue is generally what a reasonably attentive and competent clinician would be expected to do if a patient were to faint, collapse to the floor, complain loudly about severe symptoms, or something of the like,” Groszkruger explains.
If the response in the waiting room is in dispute, security videos are a seemingly impartial source potentially available to litigants on both sides. “It could be important if the patient alleges he or she was not reassessed by the ED staff, or that the patient waited an enormous amount of time for a serious condition that led to a bad outcome,” says Robert D. Kreisman, JD, a Chicago-based malpractice attorney.
However, ED waiting room tapes cannot be used if they do not exist. “From the plaintiff’s point of view, the struggle might be how to preserve the video footage from either being destroyed or taped over, if not requested early on,” Kreisman notes.
Assuming the ED waiting room footage exists, generally, it is admissible in a malpractice lawsuit, according to Groszkruger. Still, the defense can argue vehemently it should be inadmissible. Patient privacy regulations are one obvious concern if other individuals are visible. The court may require video to be converted to still photographs or edited to eliminate all irrelevant events. “The footage could be edited in such a way as to delete or mask others pictured,” Kreisman adds.
The defense may try another tactic by arguing that the footage should not be admissible because it is not clear that ED providers could observe the event. “In many large ED waiting areas, no ED staff member can observe every event in every part of the waiting area,” Groszkruger says. Therefore, the physical layout of the ED becomes critical.
Whether security tape footage is admissible evidence in a particular court trial is determined by the rules of evidence that govern that court jurisdiction, says Shane C. Sidebottom, Esq., a healthcare attorney with Ziegler & Schneider in Covington, KY.
“A very crucial issue to admit any video evidence into a court record is that it must be properly authenticated,” Sidebottom says. Generally, authentication requires a witness who recorded the video (or operated the system that recorded the video) to testify under oath that the video is true and genuine. In the case of hospital security footage, says Sidebottom, “it is helpful that there are policies and procedures in place that govern how recordings are made and stored in the organization to establish authenticity.”
Although video evidence can persuade a jury at trial, the way the footage is generated can mean they never see it. “One particular issue that I have seen with security cameras that can cause evidentiary issues is if they are on a time-lapse recording delay,” Sidebottom says. For example, a camera that records on and off every few seconds can be thrown out as evidence. “It cannot provide real-time accuracy of the event in question,” Sidebottom explains.
Reasonable Expectation
More EDs are using video security cameras as a possible deterrent to violence. “However, it creates a conundrum with regard to the extent to which it might be used in a medical malpractice situation,” says Andrew P. Garlisi, MD, MPH, MBA, VAQSF, medical director of Geauga County EMS and University Hospitals’ EMS Institute Paramedic Training Program in Ohio.
In the example of a patient collapsing in the waiting area, the video footage could document the following clearly:
- Duration of waiting time;
- Patient reassessments (if any) by triage nurse;
- Elapsed time from collapse to medical intervention.
“Depending on the etiology and consequences of the collapse, a medical malpractice action might be inevitable,” Garlisi says. If the patient expired due to a lethal arrhythmia, one could argue the patient with dizziness should have been placed on a cardiac monitor, since cardiac arrhythmia is on the differential diagnosis list of dizziness. “In this worst-case scenario, it would be likely that security footage could be submitted as evidence on behalf of plaintiff,” Garlisi says.
If ED waiting room videos are posted on social media, the defense likely will argue that it created bias against the defendant. “Most likely, the jury would be screened as to whether or not they had viewed the footage prior to trial,” Garlisi notes. Is anyone monitoring the video footage in real time? This becomes another important question during litigation. If the answer is no, Garlisi says, the next question will become: “If no one is continuously monitoring the footage, how it is possible to provide timely intervention in the event of a crisis?”
On the other hand, security footage potentially can refute allegations that the patient was ignored. For instance, the footage might show the triage nurse conducting regular assessments. The opposite holds true if the tape shows nobody reassessed the patient. “The family members who claim that the patient was ignored will be given credence,” Garlisi says.
The defense always can argue ED providers were unaware the patient was deteriorating in a crowded waiting room. “Unfortunately, for the emergency team and the hospital, being short-staffed and too busy most likely will not exonerate the defense in a tragic, preventable death in the ED waiting area,” Garlisi cautions.
Patients expect to receive an adequate assessment as often as necessary to ensure their safety. “This is a reasonable expectation,” Garlisi adds.
Some factors that can determine the admissibility of this footage include visibility of other individuals, the ED’s physical layout in terms of making the event observable, and the fact that time-lapse recordings were used.
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