More OBs prohibit birth videos, but it’s difficult to enact hospital policy

Study shows younger doctors more likely to object

More obstetricians are prohibiting video cameras during childbirth out of fear that videotapes could be used against them in a malpractice case, according to new research. The trend is the latest development in a longstanding debate over whether such tapes really pose a risk.

Of a group of obstetricians and family practitioners, the study found that younger doctors were more likely to prohibit taping, possibly because they were educated at a time when the malpractice risk to obstetricians was firmly established as a primary concern. Obstetricians, regardless of age, were more likely to prohibit taping, however, suggesting the liability risk of videotaping births is becoming more than just an academic question. One of the authors of the recent study tells Healthcare Risk Management that doctors in the study regarded the videotapes as a real threat. Obstetricians clearly thought the risk was higher than did family practitioners, reports Jerome Yankowitz, MD, associate professor of obstetrics and gynecology at the University of Iowa in Iowa City.

"Obstetricians tend to deliver a larger number of babies and more babies that are high risk," explains Yankowitz. "One hypothesis is that family doc-tors are used to less risk and normal outcomes in the pregnancies they deliver. They are not thinking of the problems that could arise and be seen on video, so they are less likely to control the videotaping."

Yankowitz studied the attitudes of obstetricians and family practice physicians in Iowa.1 He and his colleagues sent questionnaires to all 172 obstetricians and all 438 family practitioners practicing in Iowa. The response rate was 88%. They found that 41% of obstetricians and 19% of family practitioners prohibit the videotaping of any medical procedures.

Another 34% of obstetricians and 26% of family practitioners reported they were likely to modify their actions and conversation when video cameras were present. Thirty-five percent of obstetricians and 14% of family practitioners said they would be tempted to turn off a video camera if complications arose.

Younger obstetricians, those 25 to 40 years old, were more likely than older obstetricians to disallow videotaping, 53% vs. 33%. Of those in both groups who disallowed videotaping, more than 80% cited legal concerns as the reason.

They’ve got it, you don’t

Though there is little other research documenting the extent to which doctors have prohibited videotaping, observers suggest that the figures in Yankowitz’s research are higher than what would have been encountered a few years ago. The researchers wrote that "it is possible that younger physicians, having graduated during the frenzy of malpractice litigation, are more inclined to be defensive in their physician-patient relationships."

The concern is that if something goes wrong in a birth, the family will go home with a videotape that shows the incident in graphic, living color. Risk managers and defense attorneys worry that such videotapes could be used as explosive evidence either to conclusively prove the plaintiff’s charges or just inflame a jury. Videotapes have been used in malpractice lawsuits already, both to the advantage and disadvantage of the defendant providers.

A big part of the problem is that even a perfectly normal, successful birth can look harsh on videotape. Health care professionals may look at the tape and see nothing wrong, but a jury might see a bloody procedure that seems to support whatever the plaintiff is alleging, says Richard Boone, JD, an attorney in McLean, VA, who specializes in defending against medical malpractice claims. A lay jury can be swayed beyond reason by a graphic videotape, regardless of what actually happened in the case, he says.

Some of the same issues arise with videotapes of other procedures, such as laparoscopic surgery. But in those cases, the physician usually has much more control over the videotape.

No easy solution

Of course, the other side of the coin is that the videotape could support your defense that the physician and staff acted appropriately and the injury to the baby was not their fault. But that’s not as likely, Boone says.

"If you’re going to make a videotape record of anything that happens in a procedure or treatment room, both sides need to have equal access to it," Boone says. "The problem is that if you have a bad outcome and the videotape helps the defendant, I’ll guarantee that you’ll never see the tape again. If it hurts the doctor, it will be converted to widescreen CinemaScope and displayed 10 feet tall in the courtroom during the trial."

Boone says he is not surprised that obstetricians are increasingly unwilling to allow videotaping, but he notes that there is no easy solution. Parents expect to be able to videotape their children’s birth, so a blanket refusal may be met with resistance. The expectation is so strong that many parents may switch to another practice that allows videotaping, he says.

For that same reason, it would be difficult for a hospital to prohibit videotaping of births, Boone says. Parents would object and some obstetricians would object, probably costing the hospital revenue when they take their deliveries to other facilities.

"If I were a hospital risk manager, my thought would be that you can leave it up to the individual physician because it’s just too big a mess to get involved in," he says. "If you’re going to let one person do it, then you have to let everyone do it. You can’t say just certain parents can’t videotape because the birth might be difficult. But if you make it an individual call by the physician, then the hospital is kind of off the hook as far as people being unhappy about it."

(The American College of Obstetricians and Gynecologists in Washington, DC, has issued a statement warning of the potential malpractice risk in allowing videotaping. For more on that warning, see p. 63.)

Yankowitz suggests that physicians should communicate with patients upfront about whatever videotaping policy they choose to follow. "I tell my patients if they are videotaping that things may become more complicated and, if so, I will ask the camera to be turned off, which they should agree to," he says. "Also, it may be fine with me but everyone else involved, like nurses and anesthesiologists, must agree as well."

Boone offers one suggestion he says would solve much of the problem, though he acknowledges that few hospitals are likely to follow it. Rather than letting parents videotape on their own, the hospital could prohibit amateur videography and offer professional videotaping of the birth instead. The hospital then could offer a copy of the tape to the parents either as a complimentary keepsake or, more likely, for a fee. That way, the hospital can control how the procedure is photographed, and both sides are guaranteed a copy.

"It could be a real revenue generator if you do it professionally and then charge the patients a gazillion bucks for a nice videotape," Boone says. "Then if the excrement hits the ventilator during the delivery, you’ve got your own copy to show exactly what happened."

That approach may be too much trouble for hospitals to adopt, but Boone suggests that big facilities with a high number of births might find that system worthwhile. Though there is no easy answer, he says risk managers will have to consider the risk because parents’ expectations that they can videotape will only grow stronger.

"It used to be a little unusual, but now there will always be somebody in there with a camera, and God knows what new piece of technology," he says. "I won’t be surprised if Madonna has another baby and starts selling tickets."

Reference

1. Eitel DR, Yankowitz J, Ely JW. Videotaping obstetric procedures: Assessment of obstetricians and family physicians. Arch Fam Med 2000; 9:89-92.