By Stacey Kusterbeck
Malpractice attorneys, both for plaintiffs and the defense, are increasingly using security footage of ED waiting rooms as evidence. In a recent malpractice lawsuit, the outcome of the case hinged on its admissibility.
The plaintiff presented to an ED with a psychiatric complaint of generalized depression, but denied suicidal ideation. The triage nurse informed the patient that to be voluntarily admitted to the hospital, he needed to undergo a complete assessment, which would take some time.
The patient, unwilling to wait, left the ED. The next day, in an apparent attempt to kill himself, the patient drove his vehicle into oncoming traffic. The accident killed three people and wounded a fourth. The patient survived and was convicted of vehicular homicide. The families of the individuals killed and injured sued the patient and the hospital.
“The whole case turned on whether or not the patient met criteria for involuntary commitment,” says Joshua E. Gajer, JD, an attorney at Philadelphia-based White and Williams.
According to the triage nurse, the patient appeared calm when making the decision to leave. Therefore, if the man wanted to depart, there was nothing staff could have done to stop him. The defense attorneys wanted to use security footage of the ED waiting room to support the triage nurse’s testimony. The problem was the security footage was incomplete. The hospital had retained some of the footage, after receiving a request from police to view it after the motor vehicle accident. However, the hospital did not retain every angle of the footage for the entire time the patient was in the ED. “This became very problematic for us. It is an unusual situation that you more often see in premises liability cases,” Gajer says.
For example, convenience stores usually are familiar with the need to preserve video footage to provide to law enforcement in the event of an incident. “But in the healthcare setting, it’s unusual to have any component of the visit videotaped,” Gajer says. “The ED is the exception to that.”
Based on previous rulings in premises liability cases, the court was prepared to give a spoliation sanction related to the non-preservation of certain aspects of the security footage. This meant defense experts could not rely on the video footage in their testimony. “Ultimately, it would have been an appellate issue if the case had gone to trial,” Gajer asserts.
Because there was no footage showing a calm patient in the waiting room, that hurt the defense of the malpractice claim. The case ended up settled for an undisclosed amount. “The takeaway lesson is that in a case where we would want to use video evidence, it’s imperative to make sure you have all of it,” Gajer says.
Court rulings on admissibility are not the only reason for this. Many jurors also will be skeptical of incomplete footage and wonder what the hospital is hiding. “In this day and age, nobody’s really willing to accept the argument of limited storage space and footage having to be deleted,” Gajer notes. “Judges and juries basically expect unlimited data retention.” Therefore, it is important for hospitals to adhere to retention policies for security footage.
Many emergency clinicians think about security footage only in terms of potential criminal charges against individuals who commit violence. “But you also need to be mindful of its potential relevance in malpractice litigation,” Gajer advises. “The ED waiting room is one of the only parts of the hospital with security footage where there is assessment of patients going on.”
When physicians or nurses are evaluating patients in treatment rooms, there is no video footage due to privacy concerns. “But the triage component can often become an issue in the case, when it’s alleged the ED delayed care. All of that is captured on video,” Gajer says.
Security footage of ED waiting rooms is relevant to claims alleging delayed triage, failure to reassess the patient during a long wait, or failure to intervene if a patient deteriorated in the waiting room. However, many claims involve allegations of delayed treatment or diagnosis. What happened in the ED waiting room, before the patient was brought back for evaluation, could have contributed to a poor outcome. “If it’s relevant, even tangentially, I think most courts would admit that as evidence,” Gajer offers.
There are potential patient privacy concerns if the footage depicts multiple individuals. “But plaintiff attorneys would likely have a way around that,” Gajer notes.
For instance, attorneys could blur the faces of anyone else depicted in the footage. The plaintiff attorney could use the footage to paint a picture of a deteriorating, desperate patient who was ignored in a crowded waiting room.
The defense could cross-examine the plaintiff’s experts, and offer their own experts to explain the context. For example, the medical record might show the patient had been reassessed at regular intervals. Regardless, visual images of a person in distress would be a big hurdle for the defense to overcome.
“Both the defense and plaintiff’s side are constantly looking for visuals to drive home a point,” Gajer says. “It would be powerful evidence in an ED case.”
Security footage typically is silent. This leaves room for interpretation as to what was really going on. “A savvy plaintiff lawyer is going to be able to spin that however they want,” Gajer explains.
For example, the case in question happened on New Year’s Eve. The staff person behind the desk was wearing a party hat. “It was bad optics. The plaintiff’s lawyer spun this entire narrative that no one was really paying attention, and staff were just distracted,” Gajer reports.
The medical record might indicate a patient was administered pain medication. The nurse might testify that the patient verbally reported less pain. Nonetheless, a video of the patient grimacing in pain is hard for the jury to ignore. “When the other side has images and you have only words, you’re at a disadvantage,” Gajer says.
Both the plaintiff and defense are continually working to simplify their message. “A video can make someone shut down and not want to listen to testimony putting it in context, no matter how truthful or accurate the testimony may be,” Gajer cautions.
In another ED malpractice case, the central allegation was delayed treatment. The defense contended the patient left the department without telling anyone before a nurse could bring back the patient for an exam, and that was the reason treatment was delayed.
Initially, the defense claimed there was no footage from security cameras. Later, plaintiffs discovered footage did exist. The plaintiff attorney learned this as a result of a different, unrelated complaint that was filed against the same hospital. “Litigation attorneys participate in trial lawyers listservs that permit a lawyer to communicate with all other plaintiff trial lawyers in the state or nationally,” explains David Sumner, JD, who represented the plaintiff.
Plaintiff lawyers can obtain valuable information from other attorneys who worked on other lawsuits against the same hospital or medical provider. “Thus, deception by a hospital in discovery responses will frequently be uncovered. When discovered, it will render the case virtually indefensible,” warns Sumner, a Tucson, AZ, medical negligence specialist with a multistate trial practice.
In this particular case, Sumner’s firm learned of the other complaint, filed by a different patient’s family, that resulted in the state medical board taking adverse action against the hospital for delays in treatment. The two ED visits had occurred during the same period. Upon learning of the other complaint, Sumner submitted a Freedom Of Information Act request for the report on the adverse action against the hospital.
“The report allowed us to show video footage existed — and that the hospital provided incorrect or deceptive responses to discovery when they claimed no security footage existed,” Sumner reports.
Ultimately, the hospital produced the security footage of the waiting room. The video evidence showed the patient was moved from the general waiting room to a smaller waiting area. The patient actually was present in the ED the entire time. Additionally, the hospital failed to produce a protocol requiring nursing assessments every two hours. No one reassessed the patient during a six-hour wait.
“All of these factors created the perception that the hospital lacked institutional integrity,” Sumner says. “It allowed us to argue that evidence provided by the hospital in discovery could not be trusted.”
Security footage of ED waiting rooms is relevant to claims alleging delayed triage, failure to re-assess the patient during a long wait, or failure to intervene if a patient deteriorated in the waiting room. However, many claims involve allegations of delayed treatment or diagnosis. What happened in the waiting room, before the patient was brought back for evaluation, could have contributed to a poor outcome.
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