Lights, Camera, Legal Action?

Throughout September, the Health section is focusing on the topic of pregnancy.

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A woman, who previously had a caesarean section, arrived at a hospital in labor. Her husband began recording the family event with a videocam.

After a nurse examined the woman, the obstetrician was told that the time for delivery was near. The doctor, who was on the phone, told the nurses to bring the woman to delivery.

Minutes later, the doctor still had not arrived and the nurses began complaining that the doctor would not get off the phone. The fetal monitor showed an irregular heartbeat. Finally, the doctor ended his phone conversation and began the delivery, which the doctor botched, resulting in the baby’s death.

Before the popularity of video cameras in the delivery room, such a case might have led to a protracted legal battle. But armed with the video, the family had indisputable audible and visual evidence against the physician, according to an article earlier this year in the Journal of Family Practice that examined the legal issues surrounding videotaping births.

It’s cases like this that have prompted some hospitals to implement tighter policies regarding videocam use in the delivery room, and caused a few others to prohibit them altogether. Still other hospitals have no formal policy yet, but with the ever-rising popularity of videocams, they will soon be forced to act, say legal observers.

Although no formal studies are available, physicians estimate 5% to 10% of parents request videotaping in the delivery room. Some couples feel so strongly about capturing the life event on tape that if one doctor doesn’t permit it, they will find another who does.

In Southern California, most hospitals allow videocams, but with the provision that it be turned off at the doctor’s discretion. In most cases, this means the camera goes off if the delivery becomes suddenly complicated, as in the case of an emergency C-section.

This rule, however, is in place mainly for practical, not legal, reasons, as some may think, doctors explain.

“If things are going fine, I have no trouble with videotaping births. I think it’s wonderful for the parents,” said Dr. T. Murphy Goodwin, an associate professor of obstetrics and gynecology at the USC School of Medicine. “But if an emergency develops, a father with a videocam is a distraction that can interfere with the mother’s care.”

Of course, a video camera can be as useful to a physician as it can be potentially damaging, legal experts point out. After all, if all the procedures are correctly followed, a videotape can quickly exonerate a doctor and squelch any frivolous lawsuits, legal experts say.

“I don’t worry about videotaping,” said Dr. Faustina Nevarez, chief of obstetrics and gynecology for Kaiser Permanente Los Angeles Medical Center. “I’m always doing the best I can and that’s what they’ll find on the video.”

Further bolstering the case to keep videocams is the desire to maintain a positive doctor-patient relationship, physicians say. Doctor-patient relationships have become strained in recent years by lawsuits and changes wrought by the growth of managed care. Understandably, some doctors have become more wary of lawsuits.

According to one attorney quoted in the Journal of Family Practice, a videocam ban would be “an unnecessary precaution which [would] only further alienate the patient from the physician.”

But some doctors are still very cautious about letting videocams inside the delivery room. Their chief concern is that a jury could too easily misconstrue the sometimes messy events that unfold on videotape.

“Pictures which may appear rather routine to a group of trained obstetricians will be perceived as a gruesome and bloody mess to a jury,” said an attorney in the Journal of Family Practice. “It can be difficult for any defense attorney to explain away these pictures, especially in complicated deliveries.”

Other doctors are afraid that videotapes can be tampered with so that the truth of events is completely distorted. Juries are rarely shown the entire tape, but instead see a version that has been spliced and edited to support the malpractice claim, states the journal article, which was based on a survey of medical-legal specialists.

Legal experts advise doctors who allow videotapes to lay down the ground rules well before the delivery. That way, if complications unexpectedly arise, there won’t be a confrontation about halting the taping, they say.