Risk Management

Eyes, Lies and Videotape

By Jean Hausheer Ellis, MD, FACS

Argus, May 1997

For quite some time, ophthalmologists and other specialists have been videotaping surgical procedures, sometimes for educational purposes and sometimes to help keep operating personnel aware of the progress of a surgical procedure. Some ophthalmologists offer their patients a copy of the video to enhance patient education and strengthen the patient/physician relationship as well as to market a given surgical method or technique to a targeted audience. Considering, however, that about 70% of medical misadventures for all specialties occur in the operating room, a videotape can act as a shield and help diminish the chance of a paid claim or as a sword and increase exposure to a claim.

The Physicians Insurance Association of America (PIAA), an association of about 50 doctor-owned professional liability insurance companies, surveyed member companies and found that only 18% of respondents thought a videotape of the procedure would be helpful in making the decision to defend or settle a case. Some respondents felt the risks of using a videotape far outweighed the benefits. One member company reported that it had to make a settlement for $700,000 more than it thought a case was actually worth because the wrong instructions had been given to the surgeon and were recorded on the audio portion of the videotape.

PIAA also surveyed defense attorneys and found that 73% opposed videotaping surgical procedures. Some commented that videos present an inflammatory scene to an untrained eye in the jury box, and an appropriate procedure could appear otherwise to a layman, resulting in a frivolous or nuisance lawsuit. Another concern was that since fewer than 40% of iatrogenic injuries ever come to the attention of the patient, why send the patient home with a tape that might clearly show the surgeon making a mistake?

If an ophthalmologist does decide to videotape surgery, it is important to have policies and procedures in place. In most states, the videotape of a surgical procedure will likely be considered part of the patient’s medical record. As such, if a malpractice suit is filed, videotapes will be discoverable by the plaintiff and admissible at trial. Therefore, videotapes should be identified with the patient’s name, identification number and date of procedure. As with all medical records, videotapes should be properly stored to prevent loss, misfiling or damage. Videotapes should be stored under the proper conditions (i.e., humidity, temperature and darkness) to preserve their quality.

Obtain Separate Informed Consent Before Videotaping

Before videotaping a surgical procedure, obtain a separate informed consent which includes the reasons for taping the surgery, permission to tape the procedure in question, and the fee, if any, to be charged for taping the procedure. It also should include permission to use the videotape for educational or other purposes, and acknowledgment that the surgeon has the right to retain ownership and possession of the original tape. The form should include an explanation of the patient’s right to obtain a copy of the tape and the involved charges, if any, as well as a description of the physician’s policy regarding the length of time the tape will be preserved. It is recommended that the form include the scheduled date for destruction of the tape with an explanation that the patient should request a copy prior to that date if desired.

It is important to be consistent when videotaping. For example, some videotapes purposely contain only part of a procedure (especially if a problem arises during surgery). Generally, it is advisable to tape the entire procedure including difficult problems. If it becomes necessary to discontinue videotaping a surgical procedure, or if there is unintentional alteration or erasure of a videotape, the reason and a description of the discontinuance, alteration or erasure should be documented in the patient’s medical record. Intentional alteration, editing or erasure of a videotape without prior written consent of the patient is as improper as altering the written medical record. If there is any intention to edit, erase or destroy a tape (prior to the scheduled date of destruction on the informed consent), the ophthalmologist should advise the patient of this intention prior to doing so, and obtain the patient’s written consent. A dictated transcription of the designated videotape to be destroyed can be done prior to its destruction.

In conclusion, if the ophthalmologist has a specific protocol in place for videotaping surgery (informed consent and consistency when taping) and handling the videotape (storage and ultimate disposition), the possible legal risks of videotaping a surgical procedure can be minimized.