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I’m back. So if a picture is worth a thousand words. A videotape to a plaintiff’s lawyer, priceless. So this is something that’s been going on in litigation as an issue, been coming up as an issue for as long as I’ve been a lawyer. And the increasing technology and ability to videotape, whether laparoscopically or from external cameras, either head cameras or room cameras, makes this even more enticing and exciting to the other side of the bar, to the plaintiff lawyers. And so the one thing I can say about this is if you’re using it for research and to improve patient safety, you have to remember that we’ve always had this very difficult balance between transparency, you know, everything’s up front, we own up to our mistakes, we tell the patients everything, we report facts and problems to our patients vs. peer review, which has been embedded in all of you from day one. And there is a cloak of secrecy and it’s statutorily protected about peer review, so there’s this dynamic, this tension between the way doctors have always been taught to study and improve, to talk about things behind closed doors and to make notes and minutes and reports that we know no one can see and the courts actually protect this. We’ve done a good job legally of making peer review sacrosanct for the most part versus this transparent idea of everyone can see everything I’m doing, what I’m wearing, how I’m speaking, how I’m holding my instruments, how long this is actually taking me, and so on. And so there is a tension that you can’t ignore between those two concepts.
There is also another tension that I think is critically important to recognize and somehow address, and that is the tension between promoting increased communication in the operating room setting between different caregivers, anesthesia, surgery, nursing. We as defense lawyers, we want you talking. You as providers want each other talking throughout the procedure. You want open and ongoing communication, and no matter how many times you tell people this is for research and we’re not evaluating you, I think it’s very difficult to avoid the chilling effect that having multiple cameras at multiple different angles that you know people are going to be studying especially if there’s any intention of using this for credentialing that that chilling effect may have an adverse patient care impact in that you’re gonna decrease communication among providers, you’re going to have a very quiet OR and that’s exactly the opposite of what you want. So I would ask you to keep in mind that sort of opposite effect from what you’re looking for.
Ownership of the videotape, ownership is huge when it comes to the legal question. You know, if someone goes and has their mammograms done and then they need their mammograms, they show up in Radiology, they say they’re my films, and I want them and technically they are. Medical record may be the hospital’s record, but the patient owns that information, and the patient owns those films. And you have to make abundantly clear in any consent form that has to be gone over with the patient, not the moment before surgery, A. this is for research only, it has to be in writing, and B. that this is the property of the hospital or the study that’s funding it or whoever is going to own it and C. you need the consent of the patient both to take it, to share it with others; it needs to be clear what that’s going to be used for. And at the very end of the day you want to be clear about how this is going to be maintained. I love that you’re calling it a retention policy and not a destruction policy, someone has been listening, but at the same time, it means it’s not gonna be here after a certain period of time and the consent form needs to make that clear as well. Because once you tell someone we are videotaping and they say ‘okay,’ And then they have a bad outcome, the first thing they want is the videotape. The first thing their lawyer wants is the videotape, and if the videotape no longer exists and it isn’t clear what it was being done for and why it no longer exists, all of a sudden you have either a huge suggestion of cover-up or you have from a legal perspective what we call a spoliation of evidence issue. A videotape is going to be the best evidence of what happened in that operating room and so if that gets…is not retained or destroyed, there is a suggestion that there was something about that videotape that was harmful to the people who were in it. So you have to be very careful to spell those things out.
So I guess I would throw out there even though this is for patient safety improvement, improvement of performance, if you’re unfortunate to film a poor outcome, a complication, something significant and serious which, of course, you want to study, do you have a different obligation to maintain that or to notify before you destroy that? From a legal perspective, that might be a very important thing to consider. Thank you.
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