Surgery tapes offer similar pros and cons
October 1, 1998 3 minutes read
Surgery tapes offer similar pros and cons
But juries are more likely to assume errors
Childbirth is not the only situation in which videotapes can pose a liability risk. The same problems can occur in surgery, where it is common for a surgeon to videotape surgical procedures. Laparoscopic procedures are especially vulnerable because the image already is being fed into a video system as a requirement of the minimally invasive procedure.
But if a patient later sues for malpractice, those videotapes can be used as evidence for or against the surgeon. The same pros and cons apply to surgical videotapes as to childbirth videotapes. They can help or hinder, depending on what is on the tape and how the jury interprets it. With surgery, however, a jury may be even more inclined to assume the tape shows a surgical error, says Richard Boone, JD, an attorney in Vienna, VA, who specializes in defending medical malpractice cases. The surgery tapes typically show a great deal of blood and a lot of tissue that is difficult for a layman to distinguish, and they require a careful, lengthy explanation to understand.
"But when the tape shows blood flowing out of something, it's easy for the jury to assume the doctor did something wrong," Boone says. "Maybe he didn't do anything wrong at all, but the jury sees blood spurting and [assumes] that's bad."
Boone recommends not videotaping surgical procedures unless there is a good reason to do so. Surgeons should be discouraged from routinely videotaping procedures out of habit, just in case they might want to review the procedure later. He has heard of surgeons with entire libraries of videotaped surgical procedures, and he says every one of them is a malpractice case waiting to happen.
There are some good reasons to videotape, he acknowledges, such as the need to document innovative procedures and teach other surgeons. But he stresses that each videotape carries a liability risk, so there is no need to create more than absolutely necessary.
To tape or not to tape?
There is substantial disagreement among surgeons on whether to videotape, with some declaring that the liability risk is unnecessary. Others, like D. Alan Johns, MD, director of the GYN Laparoscopy Center at Harris Methodist Hospital in Fort Worth, TX, say there is no reason to fear a videotape if you are confident of your abilities.
Johns tells Healthcare Risk Management that a videotape is much more likely to help your defense of a malpractice case than to hurt it.
"That's why I videotape everything," Johns says. "I go to medical meetings and see these tapes of surgeons making horrendous mistakes, and then I hear people saying he shouldn't have taped that. But I say, yes, he should have taped it, and he knows he should have his privileges taken. Someone like that shouldn't be operating and it's not right to cover it up by not taping."
Johns says the videotape, while subject to interpretation, will provide a much more accurate representation of the procedure than the operative notes. No surgeon is likely to be entirely candid in explaining why a procedure went wrong, he says. Conversely, a jury may be inclined to suspect the operative notes are sugarcoated even if they are not. "I would much rather have them see my tape than base it [their decision] just on the operative notes afterward," he says. "If you use reasonable technique, then the videotape has much more value in convincing the jury of that than some notes that you made afterward."
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