9 tips for reducing your videotape liability risk
October 1, 1998 6 minutes read
9 tips for reducing your videotape liability risk
Have a policy in place and stick to it
Here are some words of advice for reducing the liability risks that may come with videotapes of childbirth or surgery:
1. Have a policy on videotaping surgery.
It probably is unnecessary to issue a total ban on videotaping surgery, but some consistency in videotaping can be crucial. It may be beneficial for a hospital or surgical practice to establish a policy on which procedures can be taped, says Richard Boone, JD, an attorney in Vienna, VA, who specializes in defending medical malpractice cases. Such a policy will help minimize charges that the procedure was recorded but the defense doesn't want to provide the tape.
For instance, a policy might state that only novel or somehow noteworthy procedures may be taped and require an explanation of what makes them so. The worst thing, according to Boone and other legal sources, is for a surgeon to decide willy-nilly to tape this one and not the next one. That leaves you wide open for charges that you are hiding a videotape by saying the procedure wasn't taped.
2. ote in the record whether anyone videotaped the birth.
Boone calls this the most important step you can take to reduce risk and improve the chance that you can use a tape in your defense. The delivery staff should be instructed to note in the chart, for every delivery, whether the birth was videotaped and by whom. The notes also should indicate when the videotaping began and when it ended.
Those notes will aid you later if the parents do not offer the videotape as evidence, or if they wait until the last minute. Without them, you may not know to obtain a videotape that supports your defense, and you might be surprised when they bring it forth just before trial.
3. Caution parents that videotaping may end abruptly.
Most birthing facilities already have policies on who can be present in the delivery room and under what conditions. If the policy already states that visitors might be required to leave in an emergency, you might want to add a statement clarifying that videotaping will end at that time also. Such a statement can help you avoid charges you hustled the videographer out because you were trying to hide your staff's performance. The policy also might point out that you can't allow a camera to be left on a tripod otherwise unattended because of safety and clinical concerns.
4. Don't panic and do a "60 Minutes" if things go badly.
Even though it is perfectly acceptable to usher all family members out if there is a crisis during a delivery, make sure that is exactly what your staff do. Atlanta malpractice attorney Don Keenan, JD, points out that a jury will see a big difference in a tape that ends with the staff telling the videographer he must leave the delivery room and one that shows a nurse putting a hand up in front of the camera, with a stern command to stop taping.
"Everyone should know up front that you might have to leave if things get dicey, and it would be hard to convince a jury that that means anyone is hiding something," Keenan says. "But if the last images on the tape are of someone putting a hand in front of the camera like they're on '60 Minutes,' that's going to look bad. It will look like you're getting the camera out because you're screwing up."
5. Discourage clinicians from doing on-camera interviews.
Those working in a birthing center may become so used to families videotaping that they let their guard down when asked to appear in the tape. While it may be routine to allow the family to videotape the birth, you should discourage your staff from making additional comments for the videotape, says Sam Bishop, ARM, vice president of compliance and insurance services for WellStar Health System in Marietta, GA.
The father may ask for a recap of the event, or jokingly ask how the doctor how it felt to deliver the child. If the doctor and staff are too relaxed with the videotape, they might respond with a comment about the problems they had to get through, or make a lighthearted comment about the birth being difficult. Those could hurt when viewed later by a jury.
"Taping the birth is one thing, but your staff doesn't need to provide a statement on camera," Bishop says. "Tell them they are allowed to say no, and encourage them to."
6. Always inquire about editing of the videotape.
If there is a videotape that appears detrimental to your case, always check to see if it has been edited. Videotapes can be edited easily by non-professionals. Keenan says parents have been known to edit tapes to their benefit, even though such tampering usually is proven quite easily once you investigate.
"I tell my clients that if they've tampered with the tape in any way, it will be proven, and you've just killed your case, period. A jury won't believe anything you say once they know that," he says. "I've rejected cases just because the family admitted they had cut and spliced the tape."
7. Always get the entire videotape.
Whenever a plaintiff provides you with a video, make sure you specify that you want a copy of the entire tape and not just what the plaintiff's attorney considers the pertinent portion. Since you will be given a copy, not the original, you should specify that point every time, says Steven Holden, MD, an attorney in Tulsa, OK. In the case he recently won with a videotape, he says he would have lost if the jury had seen only the part the other side thought was important. Holden found the key evidence elsewhere on the tape.
"You want the whole, entire thing, with mom and dad being silly and talking an hour beforehand, right on through the birth," he says. "That's the only way you can know you're not overlooking something that might be important for you."
You also should ask the plaintiff's witnesses if they've seen the entire videotape. In a deposition, Holden found a witness who had been shown only the portion that made the doctor look bad.
8. Don't send patients home with souvenir tapes of surgical procedures.
Some hospitals and surgery centers have been known to send patients home with a souvenir tape of the laparoscopic procedure, a very easy thing to do since it only requires plugging another video recorder into the video system being used for the surgery. That may sound like a nice gesture, but Boone says it is incredibly risky and ill-advised.
"Why give them a tape so they can go home and pick it apart until they find something that looks wrong to them?" Boone says. "There's no reason to offer them a tape that could lead to a malpractice case that otherwise might never be filed."
Boone notes that most iatrogenic injuries are never even realized by the patient, usually because there is no lasting complication. But if a patient watches a tape and sees a surgeon make some small error - or what seems like an error to the viewer - the patient may decide she has been in pain since the surgery and the "error" is the cause. Then she will call an attorney.
Boone also notes that it would be especially bad to give the patient the only tape made of the procedure. If it is created at all, that original tape should be kept as part of the medical record.
9. Use the very best possible video image in court.
Remember that the quality of a videotape can degrade substantially when copies are made. If copies are made available to attorneys in the case, they may not be as clear as the original. In some cases, especially some surgery cases, that can be a crucial matter.
If the clarity of the image is in doubt, always ask to view the original videotape. When a videotape is used to suggest the surgeon did not have a clear view of the surgical field before cutting or making other moves that led to injury, attorneys say you should make sure the plaintiff is not intentionally using a muddied copy of the videotape. It may be useful to put the original and the plaintiff's version side by side to show the jury the difference.
For the same reasons, you also should make sure you are using high quality video equipment when displaying the videotape for a jury. A standard television monitor may not produce the same quality images as those the surgeon saw in the operating room, and that can be important for the jury to understand.
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