WhiteCoat

A Birthright?

Do parents have a “right” to videotape doctors and hospital staff while they deliver their babies in the hospital?

Many hospital delivery rooms are banning cameras or recording devices due to threat of medical malpractice and “litigious atmosphere.”

Judges do it. Try walking into a courtroom with a video camera and videotaping a judge doing his or her job. Your camera would get confiscated before you got through the entryway to the court house. Judges even have immunity from prosecution for negligent actions while on the bench. Doesn’t matter. Can’t videotape them.

Police do it. In some states, it is illegal to videotape a police officer. One Maryland citizen is facing 16 years in prison for videotaping a state trooper that pulled him over for speeding.

Why is there a “stir” if doctors want to do it?

Another story about the issue from the LA Times is here. Money quote in the Times article: “The sue-happy mentality undermining quality medicine, and discouraging quality health care professionals, is a fundamental part of our broken health care system that must be fixed.”

See also this article in the Seattle Times.

Personally, I wouldn’t care if a patient wanted to videotape me and our interaction … as long as I got a copy of the video as well. I don’t have anything to hide. However, I also think society has to respect the wishes of people who don’t wish to be videotaped.

If patients want to make it a “right” to videotape doctors and hospital staff taking care of them or their family members without the staff’s consent, shouldn’t it also be a “right” for doctors or hospital staff to videotape patients without their consent?

Be careful what you ask for …

38 Responses to “A Birthright?”

  1. Max Kennerly says:

    Next to altering medical records, the worst thing you could possibly do in a medmal case is have to defend your refusal to be videotaped for the procedure. Here’s the first question I ask you:

    “Did you refuse the camera because you thought you had something to hide?”

    And it goes downhill from there…

    Frankly, I bet the videos help more doctors than they hurt, since most doctors aren’t constantly negligent. It’s that bottom 2% of doctors who are scared stiff that people will see what a terrible job they do.

    • WhiteCoat says:

      Max –
      Long time, no hear.

      I agree that videos (or even audios) would probably help doctors more than they would hurt. In addition, they would probably encourage docs to spend more time with patients so that they could prove they did so on the video.

      I’m just curious, though. Have you seen a lot of cases in which doctors have refused to be videotaped that have later resulted in malpractice actions? If so, I think it would be interesting to know the issues involved.

  2. William the Coroner says:

    With all the HIPPA hoo-hah, where patents have to queue in a line well away from the desk so they can’t overhear other patients, I’m surprised that any hospital would allow videography or other photography of patients. There’s no way to control that people only photograph their procedure/records/family members.

    Certainly, in coroner’s offices, only the coroner’s employees can photograph the bodies/specimens, not even the police officers investigating the case.

    • WhiteCoat says:

      William –
      Is the coroner’s office policy about photography one that is internal to specific coroner’s offices, a state law, or some federal rule?
      I’d really like to learn more about this. Could you please post links or e-mail me any info you have?
      Thanks!

      • William the Coroner says:

        I’m not sure if it is a NAME standard or not. The point, though, is the coroner owns the material and analysis. If you let other folks take photos, you might get questioned about it in court, and you don’t know what was done to the photos. Now, with digital photography, there’s a whole lot of safeguards to make sure the photos are true and accurate.

        The photos, like other evidence, have to have a chain of custody trail, otherwise they’re inadmissable.

        Same thing with stock bottles and recuts. Other folks can ask for slides to be recut, but the diagnostic slides are kept in the coroner’s office forever and ever, amen. Your expert can come and look at those slides, but the originals never leave.

        OH, I almost forgot. If you go into some facilities, (like the FBI office) and you have camera phones, the guy at the front desk will take them from you. To keep you from photographic evidence, or the classified stuff. I think for the FBI, that’s because fo the counterterorism and intelligence functions they have.

  3. Dr. J says:

    I’m a bit torn about this. On the one hand I think independent professionals have the right to take or not take a case on their own terms. If I wanted to hire Max Kennerly to be my lawyer and then said, by the way I am going to videotape all our conversations, I think he could decide to take or reject me as a client based on that.
    I think most people who want to record a birth are really just trying to capture a joyous moment in their lives, so it is a shame to prevent that.
    In the emerg the only people who ever want to tape me are teenagers who are getting stitches. I always make them take a face shot of me and I introduce myself, and take a before and after shot. I guess it makes a difference that I don’t live in terror of suture lawsuits though…
    Dr. J

  4. MamaOnABudget says:

    Friends and I were just discussing this on Facebook yesterday in response to an article. A hospital refused to let a new father take any photos of his child for 30 minutes after the birth – though the mother threw a stink, and the hospital relented after 5 minutes, saying it was a misunderstanding. Supposedly the concern was staff ending up on Facebook, but the father wasn’t wanting to take a picture of the doctor with the baby or the baby being birthed… he just wanted to take a picture of the baby!

    It has been a few years since I looked into this, and we were living in a different state at the time. The rules where my two (6 & 4) were born was no photo or video unless you had prior written consent of the doctor/nurse/whomever and video camera off in the event of an emergency (baby or mom crashes, emergency section, etc)… and that was so that the doctors could do their job without an amateur videographer getting in the way. I had no interest in video, but I also had no problem getting consent from the doctor or nurse after the birth when I wanted to get a picture of them holding my new child that they assisted into this world.

    If there could be some common sense injected into these stories – no concern if the baby is the only subject in the photo for instance – it would make a lot more sense. Taking photos in a courtroom or at a traffic stop isn’t the same thing as being told that you aren’t allowed to take a photo of the baby you’ve been imagining for the last 9 months. This isn’t anything more than trying to CYA in case of a lawsuit.

  5. DefendUSA says:

    In answer to your question WC, sure, let the docs videotape patients, absolutely. It would bolster any case that might arise and give some credence to the crap you have to put up with…especially those that are litigation happy.

    On the idea that hospitals are banning videotaping of births, I don’t like it. It would seem to me that most people are not sue happy and those docs treating pts. with normal pregnancies have nothing to fear.

    I was not able to tape the birth of my second baby or my fourth and I was pretty pissed about it. Wasn’t into it the first time. Live and learn.
    I even agreed to sign a waiver so I could video it. Nothing doing. And I would have gladly give a copy to the OB. All of my kids were born at different hospitals, too. One even refused me a mirror to view the birth and I made my husband get the blush compact out of my stuff and hold it up for me. It’s just not right to deny people that experience.

  6. […] This post was mentioned on Twitter by EmergencyMed_JC, PrimaryCare_JC. PrimaryCare_JC said: A Birthright? http://bit.ly/gWg2J4 […]

  7. ThorMD says:

    I’m a very private person. In the ER, I never give permission to patients to video tape or take photos of me. Why? Because I’m a private person. I has nothing to do with “fear of documentation of malpractice” or “denying someone their birthright”. I don’t want YOU to have a picture of ME. According to Max Kennerly, I have no right to privacy anymore.

    • Jeff says:

      Doc, with all due respect, you are pretty clueless here. Do you have any idea how often you are already on video or still photography and have no idea? Walk down the street, walk into the bank, walk into many stores and there are very likely to be cameras EVERYWHERE. I think you would be AMAZED at how often your photo is captured. Right or wrong, like it or not, we now live in a world where privacy is going (or has gone) out the window. People have eye glasses and pens with little cameras in them. Telephones all have cams these days. I’ll bet there are security cameras in the very ED and hospital that you work. Have you stopped to think about any of this? I am actually involved in writing an article about this actual topic for a national medical publication right now. Google “Photography is not a Crime” and you will be amazed at what is going on out there. You are not the only one who may not like it, but there is not a lot you can do. As for being a “private person” like I said, your head will spin when you realize how often you are captured on a weekly if not DAILY basis – like it or not. I’m sure patients have done it many times – you just don’t know it.

  8. Hueydoc says:

    My question is- who are you gonna show the video to of your wife’s spread legs and vajayjay ?

    • MamaOnABudget says:

      1) I have a hard time taking any doctor seriously who says “vajayjay.”

      2) Hospitals are now saying no photos for 30 minutes AFTER birth – no vulva in the photo – just naked or wrapped in a receiving blanket alone.

  9. Matt says:

    Statutes banning the videotaping of police are being struck down by courts all over:

    http://pajamasmedia.com/instapundit/?s=videotaping+police

    Police used to resist taping DWI stops until their conviction rates went up. Now most have cameras in their cars.

    You don’t have a right to privacy in a public place ThorMD. I don’t know why you thought you did.

    I like the humor of WC calling the LA Times quote “the money quote”. The LA Times! Good stuff.

    • Hueydoc says:

      So you’re saying the doctors and nurses have no rights ?

      • Matt says:

        Why would you think I said that? I was simply noting that the statutes about videotaping police weren’t holding up in a lot of cases, so it probably wasn’t a good comparison.

        I would never say someone has “no rights”. Although really, if physicians are truly so fearful of “bogus lawsuits”, why not videotape? It creates a far better record of what was discussed and happened than a paper record dictated later and transcribed by someone else.

    • Shah says:

      Matt, I didn’t think hospitals were “public places.”

      • Matt says:

        Depends on where in the hospital we’re talking about. But in the room with your physician generally not. Both parties would have to consent.

      • Matt says:

        Correction – in some states, both parties would have to consent – not all states.

    • ThorMD says:

      Um, so I do have to consent to it in the room, which is what I said in the first place:

      Your first unnecessarily rude comment:

      You don’t have a right to privacy in a public place ThorMD. I don’t know why you thought you did.

      And the hedge:

      But in the room with your physician generally not. Both parties would have to consent.

      • Matt says:

        Thor, if you’re walking through the waiting room of the ER, I don’t need your permission. Just like in many states, if you’re talking to me, I don’t need permission to tape it or even videotape it.

        While some states require both parties to consent to a conversation being taped, others merely require one.

      • ThorMD says:

        I’m well aware of the laws in my state. But, thanks for your unbiased “advice”.

      • Matt says:

        It wasn’t advice. It was pointing out the laws of some states with regard to this issue.

        No bias there.

    • WhiteCoat says:

      Matt,
      Did you even read the articles Glenn Reynolds posted at the link you cited?

      Pretty much all of them show how citizens are being arrested for videotaping police – some of them under “wiretapping” charges. I agree with Glenn’s logic that employers have a right to videotape their employees. Police are public servants and we should be able to videotape them in performance of their duties.

      Where does Glenn say or imply at all that “Statutes banning the videotaping of police are being struck down by courts all over”?

      [Knock knock knock] Helloooo. How is it in your little world in there?

      I will now brace myself for a counterargument from you about the legalities of videotaping the Chilean coalminers which somehow tries to incorporate the phrase “little world” and further explains how such a counterargument could never be considered a strawman.

      • Matt says:

        I did read them. You’re right, they’ve been arrested. And the laws have been struck down. Read what I wrote – not what you think I wrote. I certainly never said Mr. Reynolds said they were being struck down.

        If you followed those cases, you’ll see the arrests aren’t typically resulting in convictions that stand up. I realize you’re the expert on the law, though, so maybe you came to a different conclusion. Or maybe you’ve confused “arrest” with “conviction”.

        I’m with you though that these laws are bad ideas. That’s what happens though when people forget the Constitution. For their own, or in your case, that of their insurer’s, ends.

        “I will now brace myself for a counterargument from you about the legalities of videotaping the Chilean coalminers which somehow tries to incorporate the phrase “little world” and further explains how such a counterargument could never be considered a strawman.”

        Again, this is a cute trick, but it’s a little beneath you. I hope.

  10. Matt says:

    Also WC, many, many courts are taped all the time. You can watch proceedings of a ton of them online. You have heard of CourtTV?

    • WhiteCoat says:

      Strawman and logical fallacy: “They tape court proceedings in some places ‘all the time,’ therefore it is able to be done everywhere.”

      I have an idea. Get one of your colleagues to videotape you trying to bring a camera into any courthouse outside of the county in which they do not know you to be an attorney – without identifying yourself as an attorney. If you get inside, set up the camera in the middle of the aisle pointing at the judge and start filming. Then post the video on YouTube.

      I dare you.

      • Matt says:

        You really don’t have an idea what “strawman” means. Kinda like innuendo.

        I was merely pointing out that one cannot make the blanket statement that there are no video cameras allowed in courtrooms. Some judges don’t allow them – correct. Personally, I think they ought to be, except in the cases of adoptions, because it’s all public record.

        However, even if it’s not videotaped, you can still get the court transcript. Which is taken down as the proceedings happen.

      • WhiteCoat says:

        OK, Merriam Webster, why don’t you provide all of us lesser intelligent beings with the proper definitions of “strawman” and “innuendo”. Especially me, so I can stop misusing the terms.

        As for your “transcript” comment, you’re wrong again. Let me guess. I “really don’t have an idea what ‘wrong’ means,” either.
        Many state courts don’t have “court transcripts.” You have to hire a court reporter and then pay to have the hearing transcribed – which will probably cost at least a couple hundred dollars.

        Notice how you’ve tried to shift the argument from videotaping people without their knowledge to availability of court transcripts? Don’t worry, people! That’s not a strawman argument! I’m not going to tell you what to call it, but whatever WhiteCoat calls it is WRONG! And I am the only person who can use the term “WRONG” in the proper vernacular … because I am … [cue Superman theme] … Mattuendo!

      • WhiteCoat says:

        Still haven’t given a definition for “strawman” or “innuendo”.
        [crickets]
        [crickets]
        Do you want me to link to a few dictionaries so that you can pick one from Column A and one from Column B?
        Come on. I really need to “get an idea” of what those words mean so that I can use them appropriately.

      • Matt says:

        Sorry, I didn’t realize you were asking for one. I try and stick to the more substantive parts of your posts, particularly on a question you can easily Google.

        From Dictionary.com:

        Strawman:

        “2. “a weak or sham argument set up to be easily refute” – eg. that Texas tort reform “works” because the number of claims fell precipitously the year after it was enacted.

        Innuendo:

        “an indirect intimation about a person or thing, especially of a disparaging or a derogatory nature.” – I’d like to give an example here, but you aren’t usually indirect.

      • Matt says:

        “Many state courts don’t have “court transcripts.” You have to hire a court reporter and then pay to have the hearing transcribed – which will probably cost at least a couple hundred dollars.”

        You’re wrong on a legal issue again – who’d have thunk it? Almost all state courts have a court reporter on staff, because a record has to be created in the event of an appeal. With the exceptions of adoptions and some other sealed records, they’re all easily accessible. Only your misdemeanor/small claims courts, from which all appeals are de novo, don’t.

        You are right about one thing – you do have to pay for your copy of the transcript. And yes, it’s called a transcript. And again, sometimes you can buy a video, each judge chooses that. Many of your larger counties play criminal arraignments and their drug courts on public access TV, so DVR would be fine too. Rural counties without an outlet for it don’t though. It’d be a wasted expense for them. But if you want to know what went on in a court proceeding in 90% of the cases (excepting misdemeanors/small claims), it’s yours for the asking.

        If you don’t even know this, how in the world can you be recommending legal “reform”, or even parroting what the insurers tell you, with a straight face?

  11. Jeff says:

    Wow!!! I strongly urge anyone with the interest (and a little bit of time) to google “Photography is not a crime” I’d give you the link but I’m not sure it will make it through. You will be amazed at the education you get. There are hundreds of videos on-line of TSA agents, police, federal workers, paramedics, on and on and on, all attempting to stop video in a public place. Some go onto arrest the person with the camera – many – perhaps most – end up having the charges dropped. Some end up with a reprimand. A few even lose their job. From the healthcare worker’s view I see how they may not like it. I see the same from the police, but if they are in a public place, there is nothing they can do. Even the patient who suffers a medical emergency in a public place is not protected from someone shooting video of them. Yes, I get that an exam room is not a public place. I don’t dispute that.

    Now, what they do with that video may (or may not) be an issue or rise to a crime. Putting your photo on the cover of a magazine without your permission while working in the ED may be illegal. Putting your photo on the cover of that same magazine as you treat a patient at a car accident on the road that you may have come across is an entirely different matter. Yes, it may well come down to what they do with the video or picture – not just that they shot it.

    Technology, computers and the Internet have made it a new world for so many of us – like it or not. I am currently working on an article for a national medical publication that deals with this exact issue. I guess even I underestimated how compelling it just may be. I think many of you might be amazed at how often you are already captured on video or photo during your daily life and you have no idea – not a clue. Cameras are everywhere – in eye glasses, pens, shirt buttons, telephones, IPods, Laptops, you name it. If someone wants to tape you, they often can and will and you may never know. If fact, you very well could have photos of yourself on-line right now and not know it.

  12. […] Call Room: Birthright? Patient want the right to tape in hospitals: so, the reverse is […]

  13. emmy says:

    Boy howdy there is a bit of contention in here. First of all I can’t imagine wanting to videotape my doctors doing anything. Though the “Getting the most of your doctor appointment” garbage you get on the web tells you to record what the doctor says so you can listen to it later…ummm, not going to happen with me. I’m good just re-asking the same dumb questions over and over. Until my daughter-in-law wanted the birth of her last child videotaped, I couldn’t even imagine why any sane woman would want that. She wanted it because my son had just left for Iraq and missed the birth. The video tape was of the birth and not the doctor and nurses and was for him alone. BTW, he admitted to me that he never watched it. And lastly, hospitals do videotape their patients and families all the time without consent,unless you consider knowledge that the camera is there is consent. Another one of my grandson’s is a hemophiliac and we are taped every time he is in the emergency room and when he is taken up to the hematology floor. We were also taped in the ICU at another hospital when his mother was there for DKA. So I can’t tell you why I was shocked to see the camera in the ceiling in the room of the cardiac care unit that I was in last November. In these cases, I’d say videotography is a two way street.

  14. Jane Dougherty says:

    I was in the ER tonight with my dad. He is suffering brain damage from taking Lovastatin (the doctors knew he had symptoms and told him to stay on it and as a result he has brain damage). So when the nurse asked about his medications, I told them he’s not to take anything unless I am aware. She got mad telling me that if doctor ordered something, shed give it to him and she needed to know his allergies. I told her i wasnt sure of his allergies but I needed to know what he took and she wont have any problem finding me because i’ll stay right there.

    She treated me like I was a kid and kept telling me that I cant do that and I told her I knew patient bill of rights and then she stomped off.

    Later, I apologized for being assertive/aggressive with my words but i’m protective because of the past probs with hospitals…like my mother dying of an elective surgery mistake and then my dad given wrong meds….

    so the night went on while we were waiting for test results. a patient a few beds across calmly refused a shot. The nurse told him he cant refuse medical advice (the same nurse I had just dealt with). He rationally/reasonably argued and the hospital took a power trip… then it ensued into a rodney king. I videotaped it with my iphone as it got a bit violent(MANY hospital people sat on top of him to medicate) they saw me then freaked out on me claiming it was illegal. They violated his patients bill of rights and were prob scared I had proof.

    They sent security and then supervisor of the hospital to tell me to destroy it as it violated hippa etc. They threatened me if I showed the video to anyone I’d go to jail because it violated the patient’s rights. I kept telling them to focus on fixing the patients and not what i documented. I also did not go anywhere i wasnt supposed to. I was right by my family’s bedside when this was going on.

    I demanded to be discharged to leave. As we left i noticed the man who they attacked that was screaming for someone to call the police was now out cold (obviously sedated) I was shaking pretty badly because they made it seemed like i did something against the law. What should I do (this happened like 2 hours ago).

    The hospital is in Los Angeles, CA.

    • WhiteCoat says:

      First of all, obviously this can’t be legal advice on a medical blog. If you want to know for sure, you’ll need to contact a lawyer in your area.
      That being said, it is unlikely that patients can violate HIPAA since the law only applies to “covered entities” and it would be unlikely for patients to fit that definition.
      Second of all, whether videotaping violates privacy laws depends largely upon whether those being videotaped have an “expectation of privacy”. Locker rooms and dressing rooms, definitely that expectation. On the street, definitely not. In the emergency department, maybe/maybe not. Discussed exactly this issue in a previous post: http://www.epmonthly.com/whitecoat/2011/04/pictures-in-ed-legally-permissible/

      If you feel strongly that the other patient’s rights were being violated, give the video to the police.
      Or consider contacting a local news station to ask them about it.

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