If Patient Videotapes ED Care, It Could Be Used as Evidence
Even unauthorized recordings possibly admissible
While unauthorized videotapes made by a patient in your ED may seem highly inappropriate, those recordings can often be introduced as evidence in medical malpractice lawsuits, according to William Sullivan, DO, JD, FACEP, an emergency physician at University of Illinois Medical Center in Chicago and a practicing attorney in Frankfort, IL.
He gives the example of a patient who alleges disability, but who is seen on surveillance video performing heavy manual labor. "The video was obviously unauthorized by the person alleging the disability, yet, with proper verification, will likely be admissible as evidence," he says.
Privacy laws generally don't apply to public activities, notes Sullivan. "In the closed room having a discussion with a patient, I don't think that an EP's invasion of privacy claim would be very strong if the patient or a patient's agent is the one doing the videotaping," he says. "If it is a third party videotaping through a peephole, then that would be a different story."
State Laws Vary
Whether video recordings made in your ED may be used as evidence largely depends upon state laws, says Sullivan, adding that several court cases give a general idea about the admissibility of such evidence.
The Supreme Court case of Katz v. United States held that Fourth Amendment provisions against unreasonable search and seizure applied not only to property but also to recording of oral statements and electronic surveillance, he notes.
"However, that decision applies only to police obtaining such recordings for use in criminal cases. The ruling does not apply to civil cases," he says. "In addition, the case involved oral statements, not video recordings."
In some states, video recordings may be admissible as evidence in civil matters regardless of how the recordings were obtained, adds Sullivan. The Missouri Appellate Court in Lee v. Lee held that "even evidence obtained fraudulently, wrongfully, or illegally is admissible."
In Rogers v. Williams, a Delaware family court would "not concern itself with the means by which evidence has been obtained," holding that videotaping obtained during an illegal trespass to property was still admissible as evidence, he says.
"If relevant, the recording most likely gets in at trial regardless of how it is obtained," says Sullivan. "In other states, improperly obtained recordings of oral communications may not be allowed into evidence under any circumstances."
For example, Virginia statute §19.2-65 prohibits intercepted communications, and any evidence derived from those communications, from being received as evidence in any trial, hearing, or other proceeding. Here are some items to consider regarding the admissibility of videotapes of ED care:
Before video evidence may be used as evidence during a trial, the litigant generally must prove that the evidence is relevant and reliable.
A court determines both requirements, says Sullivan, and may exclude evidence that has no bearing on a material issue in the case. He gives the example of a videotape of a patient's laceration being sutured when the issue at trial is misdiagnosis of a heart attack, which cannot be authenticated because there is no chain of custody to show that the video had not been altered, or that it is otherwise deemed unreliable.
"If an issue in the case is that a patient was ignored, and the videotape shows staff stepping over a patient who was passed out on the ground, then it will probably be admissible," he says. On the other hand, if the videotape shows the patient sitting in a chair with other patients waiting for a room to open up, then there is no relationship to the care provided and it is probably not admissible, adds Sullivan.
Video recordings that are not admissible at trial may still be admissible in administrative hearings or during arbitration hearings, he notes, since the rules of evidence are not as stringent in such proceedings.
"There is little that can be done to prevent patients from posting video recordings on the Internet, or sending the recordings to television stations so that videos can be scrutinized in the court of public opinion," adds Sullivan.
In addition to using recorded video, there are several legal issues involved in obtaining such video.
"By introducing audiovisual evidence to obtain an advantage at trial, a party to civil litigation may be admitting guilt of a crime," Sullivan says.
While there may be a distinction in the legality of obtaining purely video vs. audio and video recordings, for the most part, portable electronic devices record both audio and video streams, notes Sullivan, and there is usually no way to disable audio before recording begins.
Because most laws criminalize recording of unauthorized audio, he explains, an audiovisual recording in which an audio stream was later removed would still violate laws applicable to recording oral conversations.
"The right to take purely video recordings of another person is not absolute, either," says Sullivan. Making any type of recording in which an individual has a reasonable expectation of privacy may violate state or federal privacy laws, subjecting the person making those recordings to civil or even criminal liability, he adds.
Videotape, audiotape, and/or photographs can be introduced at trial if a proper foundation is laid and the subject matter is relevant.
"To inform the jury, videotape could be introduced to give time and place. On the other hand, it depends on the quality of the videotape and what it depicts," says Robert D. Kreisman, JD, a medical malpractice attorney with Kreisman Law Offices in Chicago.
If the purpose of the videotape is viewed by the court as a means to inflame the jury to one side or the other, it would be within the trial judge's discretion to bar the use of the videotape, says Kreisman.
"If the use of the videotape is to show some sort of improper conduct or negligent medical care, then the videotape could be utilized," he says.
Video Might Help EP
"From a practical standpoint, having audiovisual documentation of a patient encounter may not necessarily be a bad thing," says Sullivan. "A video may prove that a patient did or did not have pertinent medical findings that are important to the outcome of the case."
A video may also prove that a physician recommended preventative care or instructed the patient to follow-up if problems worsened.
In any case, Sullivan says that the hospital really cannot prevent a patient from recording an encounter, and has little ability to take action against a patient who has done so. "Realistically, the only action a hospital can take is to request that the patient leave the premises," he says. "By that time, the recording has already been made."
Juries may question the motives of a party that secretly tapes medical treatment. "While the plaintiff may allege that a recording was made so that he or she could 'remember everything,' the defense attorney would likely counter that concealing the fact that recording was taking place showed a less noble intent," says Sullivan.
In states where unauthorized recording is a crime, Sullivan suggests posting a sign in ED treatment rooms stating that unauthorized recording of another person is a felony, that recordings made anywhere on hospital premises are not authorized without advanced written consent, and that the hospital will immediately report anyone violating the law to the proper authorities.
"This is perhaps heavy-handed, but would be effective in deterring surreptitious recordings," says Sullivan. "I have caught one patient and one family member recording me without consent during my career. Both times I stopped and said, 'You know that doing that is a felony in Illinois, right?' Both stopped immediately and apologized."
Sources
For more information, contact:
Robert D. Kreisman, JD, Kreisman Law Offices, Chicago, IL. Phone: (312) 346-0045. Fax: (312) 346-2380. E-mail: [email protected]. Web: www.robertkreisman.com.
William Sullivan, DO, JD, Frankfort, IL. Phone: (708) 323-1015. E-mail: [email protected].
While unauthorized videotapes made by a patient in your ED may seem highly inappropriate, those recordings can often be introduced as evidence in medical malpractice lawsuits, according to William Sullivan, DO, JD, FACEP, an emergency physician at University of Illinois Medical Center in Chicago and a practicing attorney in Frankfort, IL.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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