What are legal risks of videotaping trauma?

Educational value may be worth the risk

Many EDs videotape trauma cases for quality improvement and educational purposes, but some have put a stop to this practice due to concern about lawsuits. After the Health Insurance Portability and Accountability Act (HIPAA) became law, a study reported on a dramatic decrease in videotaping at U.S. Level 1 trauma centers. Prior to HIPAA, 58% of responding trauma centers used video compared to 18% afterward, reported the researchers. The most commonly cited reasons for stopping video use were legal concerns about patient privacy, consent, and discoverability.1

But what are the actual facts about liability risks of this practice? The first thing to consider is that videotapes of trauma cases and other procedures would be admissible in the event of a malpractice lawsuit, says Linda M. Stimmel, a partner with the Dallas, TX-based law firm of Stewart Stimmel. "A video of the healthcare provided — if that care is in question in a lawsuit — will definitely have to be turned over," says Stimmel.

Stimmel says she has seen the video help the defense in a labor and delivery case because it showed the care provided was timely, when the chart was not diligently documented. "I have also seen the reverse, when a video showed bad language and critical lapses in care that was used against the hospital at trial," she says. "So, it may depend on whether the care provided was appropriate."

If your ED videotapes trauma cases, use the tapes for educational purposes only, advises Stimmel.

Additionally and of utmost importance, the videos should be destroyed on a regular, consistent basis, she says. "There is no reason to keep videos in storage after their useful purpose is over," says Stimmel. "The destruction process must be consistent for all videos. You do not want videos laying around that people could view in violation of HIPAA."

Although you would definitely have to turn over a video if a lawsuit was involved, many lawsuits are not filed for up to two years after an event, notes Stimmel. "There is no reason to keep videos of all trauma cases for years if their useful purpose is over. The law does not allow us to destroy material at issue in a lawsuit, but there is no problem if we are taping for teaching purposes and then destroying all tapes on a regular basis," she says.

There is no set timeframe to keep a video, but the general rule is to keep them only as long as they are needed—if the tape is needed for a monthly seminar, destroy it after 30 days, advises Stimmel. "I would definitely let staff be aware they are being videotaped and that language will be on the tape," she says.

San Francisco General Hospital's ED has been videotaping trauma cases for 10 years, but there were significant concerns about liability raised by attorneys when this was first suggested. "When we first told the university and the city we wanted to do this, the initial response was 'No, that's not a good idea,'" says Alan Gelb, MD, the hospital's division chief of emergency services.

Hospital attorneys were concerned that the tapes might be discoverable and then used in a malpractice trial, but took into consideration that under California law, hospital's quality assurance activities (QA) are not discoverable, says Gelb. "Nothing is ironclad, but the statute states that the contents of meetings of physicians that are used for QA or PI [performance improvement] purposes are not discoverable," he says. "If they were discoverable, then it would hinder the ability of physicians to have candid discussions regarding how to improve things."

Although the statute doesn't specifically mention videotapes, the taping is done under the purview of the hospital's PI program, so Gelb believes the tapes would not be discoverable. "We have never had it tested or had a request or subpoena for the tapes," says Gelb. "If we don't use the tapes within a short period of time, then we erase them."

The ED's policy states that the tapes are used only for QA purposes and only the staff involved in the resuscitation may view them. About three years ago, the ED's policy was amended after a survey by The Joint Commission. "The issue was that even though we are only using the tapes for QA purposes, they wanted consent, which became a very difficult issue," says Gelb. "Many trauma patients die and those can be the most interesting cases in terms of learning and performance improvement. What we settled on, and they agreed to, was to get consent from the patient or next of kin. So that's made things a little more difficult now."

The consent that is required is the basic conditions of admissions that patients sign, which isn't a separate consent for the video, but it includes being filmed for QA purposes. "But if we can't get that, we don't use the tapes," says Gelb. "We don't get consent from the staff to be taped because it is considered part of working here."

Worth some risk

The benefits of videotaping trauma cases far outweigh any potential liability risks, according to Gelb. "It's good to be diligent in setting up your practice to protect yourself, but this is doable. It is so helpful from an educational and peer review standpoint—not just for the students and house staff but for the attendings as well," he says. "It's amazing what you see on those tapes. You think you did everything exactly right, but it turns out you could have done something better."

Usually the focus is not so much on the technical aspects of the procedures, but more on the organization, leadership, and how quickly things get done, adds Gelb. In fact, as a result of improved performance, an ED's liability risks may actually decrease, he suggests.

Gelb points out that the documentation of a resuscitation is discoverable, and everything that is seen on the tape is already recorded on the flow sheet that the scribe nurse fills out. He says that even if a jury viewed a tape, it wouldn't necessarily work against the ED. "In fact, I would think most of the time, the jury would get a sense of how many things are going on at one time," he says. "They would see how heroic things are, and it would help the defense. However, we would not try to play it both ways; these videos are taken for performance improvement purposes only. We would not introduce a tape in defense of a lawsuit no matter how favorable it might be."

Reference

1. Campbell S, Sosa JA, Rabinovici R, et al. Do not roll the videotape: effects of the health insurance portability and accountability act and the law on trauma videotaping practices. Am J Surg 2006;191:183-190.

Sources

For more information, contact:

  • Alan Gelb, MD, Clinical Professor of Medicine, Department of Emergency Medicine, University of California, San Francisco, Box 1377, 1001 Potrero Avenue 1E21, San Francisco, CA. 94143-1377. Phone: (415) 206-5754. Fax: (415) 206-5818. E-mail: agelb@sfghed.ucsf.edu
  • Linda M. Stimmel, Stewart Stimmel, 1701 N. Market Street, Suite 318, Dallas, TX 75202. Phone: (214) 752-2648. E-mail: linda@stewartstimmel.com