Videotapes pose special liability risk: How you can reduce the danger
October 1, 1998 11 minutes read
Videotapes pose special liability risk: How you can reduce the danger
Graphic tape of birth gone awry could boost monetary damages
It's usually such a sweet moment that you find it hard to imagine it as a liability risk: Proud papa is videotaping in the delivery room as his little bundle of joy enters the world. But what happens if something goes wrong in the birth? The family goes home with a videotape that shows the incident in graphic, living color, and it could be a formidable piece of evidence in a malpractice trial.
That possibility is leading some health care risk managers to question the practice of allowing parents to videotape deliveries, and simi lar worries abound with videotaping surgical procedures. In both cases, risk managers and defense attorneys worry that the videotape could be used as explosive evidence to conclusively prove the plaintiff's charges or inflame a jury already upset by the damage done to the patient. Video tapes have been used in malpractice lawsuits already, both to the advantage and disadvantage of the defendant providers.
Risk managers and attorneys agree that the potential impact of a videotape is enormous. But it is not so clear what the solution is. Some health care facilities have considered banning videotaping in the delivery room, but most experts say that move is too risky because parents will just take their birthing business elsewhere. A better plan, they say, is to restrict the taping to some degree and then factor in the videotape when formulating a malpractice defense.
One prominent health care defense attorney says risk managers should not underestimate the potential impact of a videotape when presented to a jury. Even though health care professionals may look at the tape and see something completely different, a jury might see a dramatic, tragic injury to a child, says Richard Boone, JD, an attorney in Vienna, VA, who specializes in defending medical malpractice cases.
"I completely understand why physicians and other health are professionals are not comfortable having deliveries videotaped," Boone says. "When you put that tape in front of a jury, it's naturally going to increase the sense of drama and intensity in what otherwise would have been a verbal account of what happened. That can have tremendous influence."
Boone says a videotape of childbirth is not likely to spur a malpractice suit all by itself. If there was an unexpected outcome, the parents are likely to sue if there is any indication of poor performance by the clinicians - or even if there is no real evidence of malpractice. Having a videotape of the event is not likely to influence that decision, but it could mean a much higher award if members of the jury are emotionally upset by what they see.
On the other hand, the videotape could support your defense that the physician and staff acted appropriately and the injury to the baby was not their fault.
"If you've got a situation where everything went haywire in the delivery room and the tape shows the staff was completely on top of the situation, the tape can be fairly dramatic in your defense as well," Boone says. "If good medicine is going on before the camera, you probably won't care that the camera is there. But if there is bad medicine, you're going to get a lawsuit anyway and the tape will just make it more dramatic for everyone."
But remember, whether the videotape helps or hurts your case depends on what the jury sees on the tape. And that isn't necessarily going to be what actually is on the tape. Obstetrical malpractice cases already are among the most emotionally volatile cases, and presenting a graphic videotape of the baby in distress will only aggravate that. No matter how many experts you have explaining that the tape actually shows the doctor performing well, the jury may only see a tiny baby in distress.
(The same types of problems can occur with videotapes made of surgical procedures. See story, p. 122, for more on that aspect.)
The graphic nature of a videotape became an issue in a recent malpractice case defended by Steven Holden, JD, an attorney in Tulsa, OK.1 A woman sued her obstetrician and said her baby's brachial plexus injuries were caused by the doctor pulling improperly when the baby got stuck. The plaintiff's attorney immediately let Holden know that he would be using the videotape against the doctor, and when Holden first took a look, he thought it would be damaging.
"The first time I saw the tape, I focused on the baby being pulled hard. I showed my wife to get her reaction and that's what she saw too," Holden says. "I had qualms about showing that to a jury."
But then Holden realized he was looking at the tape as a layman. Once he studied the issue of brachial plexus injuries more and knew what to look for, he saw the tape quite differently. And ultimately, that is what happened when the tape was shown to a jury. When the plaintiff first showed the tape to the jury, the jurors reacted emotionally. They were upset by seeing the baby in distress, and they focused on the doctor pulling the baby's head, just as the plaintiff's attorney encouraged them to do.
Holden and his expert witnesses, however, redirected the jury's attention to other portions of the tape showing that the baby had turned its head sharply to one side, on its own, in an effort to free itself. That was what caused the brachial plexus injury. They also showed the jury that even though the doctor was pulling on the baby, she was pulling straight out and not twisting or turning the baby as she pulled. The witnesses explained that twisting, not just pulling, is necessary to cause a brachial plexus injury.
The jury returned a verdict for the defense, and the plaintiff is now appealing. The case was the first for Holden in which a birth videotape was used. Though he won the case, he says the experience has convinced him that videotapes are double-edged swords.
"There's no doubt that the tape was central to this case," Holden says. "They thought they were going to win this case by showing the tape of the doctor pulling on the baby, and they might have. I could see a juror listening to all the testimony from expert witnesses and still saying that she doesn't like the way the doctor pulled on the baby, so she's going to award some damages."
Dad tricked staff into talking on camera
A health care risk manager points out that videotapes can be used deliberately to create evidence for use in a malpractice case. Though he says parents almost never videotape as a malpractice strategy, Sam Bishop, ARM, vice president of compliance and insurance services for WellStar Health System in Marietta, GA, says their attitudes can change quickly if there is a bad outcome. He tells Healthcare Risk Manage ment his facility recently was sued by parents who charged that staff were negligent in responding to shoulder dystocia.
When the parents produced the video they had made of the birth and intended to use in pressing the lawsuit, Bishop found it included more than just the birth itself. After the birth, when the father knew there had been a bad outcome, he went around the delivery suite "interviewing" the staff on camera. He approached the doctors and nurses involved and engaged them with sympathetic comments like, "I know you did your best. Can you tell me what happened and how you feel?"
"Unfortunately, they fell for it hook, line, and sinker," Bishop says. "They ended up giving statements on camera that we'd never want them to make."
The case went all the way to a jury trial and resulted in a defense verdict. The videotape, although it could have been damaging to the defense, was never used in the trial. Bishop suspects it was not used because the father's deception and ulterior motives were obvious on the tape and could have looked bad to a jury. After that incident, Bishop went to the birthing center and explained that such on-camera interviews are not a good idea, especially after a bad outcome.
About 90% of all videotapes made in labor and delivery rooms actually would support the defense in a malpractice case, says an Atlanta malpractice attorney who has used videotapes in many cases. Don Keenan, JD, has used keepsake birthing videotapes in malpractice cases about 35 times, usually with positive results. But he stresses that a much higher number of videos are brought to him as "evidence" that the parents' allegations against the health care provider are true. In the great majority of cases, Keenan finds that the tape shows just the opposite.
"It's my very strong opinion that in nine out of 10 cases, the tape exonerates the health care professionals and helps the malpractice lawyer reject the case," Keenan says. "I've looked at six of them in the last month where the tape exonerated the health care professionals. The parents come in jumping up and down, screaming about how the tape shows exactly how the malpractice occurred, and we have to say, 'No, the tape shows them acting entirely appropriately.'"
Keenan attributes the parents' misinterpretation of the tapes to the fact that they are unfamiliar with how a labor and delivery suite operates. They easily can misinterpret some actions, or apparent lack of action, especially after the child has suffered a bad outcome and they are searching the tape for someone to blame. Keenan says he always asks for the videotape of the birth when parents come to him with allegations of malpractice, and they almost always have one to show him. His firm accepts only one out of every 70 obstetrical cases brought by potential clients, and Keenan says the videotape is by far the best screening tool they can use.
"I could point to lots of cases we've rejected that we might have taken if there hadn't been a videotape to look at," he says. "We would have pursued the case to see how the depositions turned out, but with the tape, we can look at it and see right away that there's nothing to pursue."
Keep in mind, Boone says, that Keenan's experience is the best argument for always seeking the parents' video if it is not volunteered as evidence.
Though Keenan says risk managers should not fear childbirth videotapes overall, he notes that individual videotapes can be tremendously detrimental to the defense when they do show malpractice. Obstetrical malpractice cases often come down to a swearing match, with the parents claiming that something did or did not happen. The clinicians say otherwise, and then the jury depends on various records and medical evidence to decide. But with a videotape, all the debate can be eliminated.
Keenan recalls one particularly dramatic incident in which a videotape proved beyond a doubt that the obstetrician had used excessive traction, after the doctor denied it. (See p. 121 for more on that case.) Excessive traction is a common problem illustrated in videotapes, along with excessive delays after calling for a cesarean. The videotape often can document how frequently a doctor visited the mother, how long he or she stayed before leaving, and how much the next shift physician knew when taking on the patient.
Even though the videotape is created only as a keepsake - Keenan says not even the most cynical parent would intentionally make a video to try to capture malpractice - there usually is no trouble with authenticating it and establishing a time line. The internal date stamp may say it's 1960 and the clock may be flashing 12:00, but there will be plenty of indicators on the tape of the time and date. Official records of an action on the tape can be used to establish a time marker.
Banning the taping of births impractical
Any videotape made by health care professionals during a procedure or childbirth becomes part of the medical record, Boone says. (There is some disagreement about whether the tape must be preserved as part of the medical record, but most legal experts agree that it must.) That means the tape must be preserved, and any loss or damage to the tape could be considered spoliation of evidence. Tapes made by family members during a birth are not part of the medical record but should be available to the defense if a malpractice case is filed.
"If the videotape doesn't surface once the lawsuit is filed, you can be sure it didn't surface because the actions depicted on the tape tend to be favorable to the physician and not the plaintiffs," Boone says. "There are plenty of ways in the normal discovery process to compel the plaintiff to produce the tape."
It probably is not realistic to ban parents from taping the births of their children, Boone says. Although that might be the best way to reduce the liability risk from videotapes, and some malpractice insurers have suggested that strategy, he says he would not recommend a ban to hospitals.
"Videotaping the birth is such an ingrained part of our culture now that parents just expect it, and they're going to react very badly if you tell them no," he says. "If you're trying to compete with the birthing center down the street and they allow taping but you don't, one of you is going to lose."
Rely on existing restrictions
Keenan, the plaintiffs' malpractice attorney, also cautions risk managers that it would be a huge strategic error to ban videotaping. He encourages hospitals to enforce whatever restrictions are necessary to keep videotaping from interfering with patient care, but he says an outright ban would be disastrous.
"A hospital that does that has given me an absolute 100% gift when I try that case against it," Keenan says. "I'll tell the jury that this hospital prohibited the very thing that would have helped them decide the case. If [the hospital] had allowed it, there would be little to argue about. And why would someone not want their work videotaped? It opens a whole line of questioning that the hospital just can't win."
Bishop, the risk manager, agrees. He says it would be easy for a plaintiff's attorney to say "they were anticipating a bad outcome, so they wouldn't even allow the parents to videotape."
If you are concerned about the risks associated with videotapes, a compromise might be to allow videotaping to begin immediately after the birth. That's the recommendation of Harlan Hammond, assistant vice president for risk management services with Intermountain Health Care in Salt Lake City. The 23 hospitals in the system have taken various positions on childbirth videotapes, with most leaving the decision to the physician. If there is an anesthesiologist involved in the delivery, he or she also must consent to taping.
Hammond says he initially was inclined toward banning videotapes altogether, but he now thinks it would be wiser to just restrict the taping to post-birth.
"It requires a degree of tact. We tell them that it's better if we get the baby out first because that's the most important thing and sometimes the camera gets in the way," Hammond says. "Then they can tape all they want. It's sort of a compromise position that still lets them get those early moments of life."
Reference
1. Carla Jean Campos and James L. Campos, as parents and next friends of Jessica Diane Campos, a minor child, plaintiffs vs. Parvati Mittapalli, MD, defendant, District Court for Tulsa County, State of Oklahoma. Case No. CJ96-3770.
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