EXECUTIVE SUMMARY

Video surveillance data can be either helpful or harmful in defending a malpractice claim. Healthcare organizations should strictly adhere to their policies on the preservation of video.

  • Surveillance video can be erased routinely after a prescribed period.
  • Deviating from a video preservation policy can be considered destruction of evidence.
  • Once a lawsuit is filed, any related video should be preserved.

A medical malpractice claim against a hospital in New York City may hinge on what is depicted in the surveillance camera footage of the hospital’s emergency department (ED). That is unusual because surveillance footage is routinely destroyed after a short period and long before a malpractice claim is filed, attorneys say.

In this case, a man died in the ED waiting area. His family alleged staff failed to act on obvious signs of distress. They immediately filed a complaint with the state department of health, and investigators seized the surveillance video.

Surveillance video can be useful to either the plaintiff or defendant — or even both, depending on the circumstances, says Adam Peoples, JD, partner with Hall Booth Smith in Asheville, NC. As a theoretical example, he says, the surveillance video from an ED might show the area was quite busy and other patients were more obviously in need of help than the plaintiff.

It is unusual for surveillance video to be used in malpractice litigation because there are few requirements that it be kept for any period, Peoples says. Most healthcare facilities keep the video for a relatively short time, often weeks or a month, before routinely erasing it when there has been no indication to preserve it. Because it usually takes longer than that for a medical malpractice case to be filed, any related surveillance footage usually has been erased.

“It often is a tradeoff in terms of the cost and network resources required to save video. Storage needs can be enormous, especially for something like a hospital that will have cameras everywhere,” Peoples says.

The question of whether to create video should not be determined by trying to predict whether it might be helpful or harmful in future litigation, says Chad Young, JD, with The Law Office of Chad Young in New York City. It can go either way, and there is no way to predict the answer. Instead, rely only on practical considerations of the need to ensure a safe environment for patients, staff, and visitors.

“I’ve personally been involved in cases in which the video totally made my case, and I’ve been involved in cases where I wish there had never been a video,” he says. “In this New York case, maybe the video shows that they did not neglect this man and his death, however unfortunate, was not due to any neglect by the hospital. The family may think the wait was unreasonable, but maybe the video shows someone in there taking his vitals every 20 minutes, or whatever the case may be.”

In his experience, Young has never seen a facility routinely preserve video for more than a month. He has seen some that kept it only 24 hours.

When video is available, it might dissuade some plaintiffs from pursuing litigation. Young recalls one client who told him she slipped in a hotel’s laundry facility and broke her wrist. He completely believed her explanation of why the facility was liable, and immediately requested surveillance video.

“They had footage, but unfortunately it revealed that she had climbed onto a chair to reach something and fell off the chair, which was not consistent with what she had claimed,” he says. “Obviously, I did not feel she had a case anymore after I saw that footage, and I let her know that in no uncertain terms.”

Even if the video footage supports the plaintiff’s allegations, that still can be advantageous to the defendant if it prompts a quick settlement offer that prevents five years of costly litigation, Young says.

Often Better for Defense

Video usually will help the defendant more than the plaintiff, says Mark Seitelman, JD, of Mark Seitelman Law Offices in New York City. He is a plaintiff’s attorney and has handled many claims against hospitals, including some involving video.

“In our experience, video imaging can cut both ways. Many times, it will defeat a claim,” he says. “From our experience in representing injured people, most of the time, the video hurts our client. The old saying that ‘a picture is worth a thousand words’ holds true. If the videotape is damning to the plaintiff, it is almost impossible to explain it away. Assuming that the video is neither phony nor doctored, a plaintiff’s explanation will be feeble.”

Seitelman notes two relevant cases. In one, a client claimed she fell on a defective sidewalk that would have been the responsibility of the adjoining property owner, a mosque. The adjoining property owner provided video surveillance of the accident. It showed the client actually fell in the roadway. Hence, the property owner was not liable. The video provided a definitive defense.

In the second, a client claimed she slipped on oil in a supermarket. The video established that another customer spilled the oil about one minute before the plaintiff crossed the aisle and fell. The video proved that the supermarket did not have notice of the spill and could not have prevented the fall.

If a hospital wanted to be extra cautious in preserving video data for its defense, Seitelman suggests one year would be adequate. Plaintiff’s counsel usually will send a letter of representation to the hospital within one year of the incident.

“The statute of limitations for regular negligence cases like slips and falls is three years, so you could save it that long,” he says. “Of course, it may not be practical to save so much data. I would say that one year is being very safe.”

Most Ban Delivery Video

The use of video in medical malpractice cases gained attention years ago when cameras became smaller and more affordable — at the same time that it became more common for family members to be present during childbirth, notes Roger Harris, JD, partner with Swift Currie in Atlanta. Cases arose in which amateur video was used to allege negligence causing birth injuries, and hospitals debated whether to allow cameras in the delivery room.

Harris was the defense attorney in such a case, in which a father recorded the difficult birth of his child. The video showed the obstetrician struggling and grunting as he tried to deliver the breech birth, and the baby was left with severe neurological issues.

“Of course, the video made the difference in settling the case vs. the hospital being able to defend it because the optics were so bad,” he says.

Most hospitals now prohibit recording deliveries, Harris notes. Although videos might help the defense, certain footage could negatively influence juries that might only see disturbing visuals without understanding the entire medical context.

For surveillance video and similar recordings, it is typical for hospitals to overwrite videos in 30 to 60 days, but sometimes sooner depending on the storage limitations of the technology, Harris says. Whatever the typical overwrite period is, video should never be intentionally deleted because the hospital fears the contents could be used against it. Even if no lawsuit has been filed, it is never a good idea to delete video because it might be used against you.

Surveillance video can be necessary and beneficial to everyone involved, particularly in a potentially volatile area like an ED waiting room, Harris says. In that case, following the hospital's own policies is paramount, and avoiding spoliation must be a major concern. (See the story on in this issue for more on spoliation.)

Recently, Harris was involved with a premises liability case for a client who received a preservation letter from the plaintiff’s attorney, but it did not reach the right person. The video recording was allowed to expire.

“We clearly had a duty to preserve, and we didn’t. It became a big challenge to us,” he says. “The plaintiff filed a motion for spoliation. The judge held a big meeting where she said we had to go to mediation, or if we went to trial, the plaintiff was going to be allowed to enter all the evidence on the destruction of the video. It was a nice way for the judge to tell us to settle, which we ultimately did.”

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