FindLaw KnowledgeBasePublished: 2012-05-02
It began in the eighties, in the days of taffeta prom dresses and big hair rock bands. During this decade, use of hand held video cameras became commonplace for most families. Now digital devices from cameras to iPhones have video capabilities. With improvements in technology almost everyone has a video recording device within reach at all times.
Occasionally, a recording of an infant’s delivery may catch a misdiagnosis or delay in intervention — sometimes these medical mistakes have resulted in a tragic, yet preventable birth injury.
The use of these video recordings has led to many issues. Hospitals and physicians are uncomfortable with the prospect of such recordings by a family member becoming evidence in the event a delivery goes bad. Families want to capture the miracle of birth and do not want to be told they can’t film the delivery of their child. As a consequence, the healthcare industry has reacted to the reality of this potential and has considered the need to adapt to the presence of video devices and camcorders in their operating and delivery rooms. Courts have grappled with whether these videos can be played in court.
Case in Point: Impact on Hospitals
The weight of video evidence was recently highlighted in a case involving a University of Illinois Hospital delivery that resulted in permanent injury. During delivery, the father recorded the nurse-midwife use excessive force in an effort to delivery the baby.
The delivery recording was admitted as video evidence in the case. This type of evidence is referred to as demonstrative evidence. It provides a firsthand sense impression for the jury. The video likely played a role in the case that resulted in a $2.3 million dollar verdict for the family of the injured baby.
Recently, and likely in response to cases like this, some hospitals have banned parents from recording their children’s births. In some hospitals, this ban extends beyond camcorders and smart phones to include photographs. These hospitals often require parents to turn off their cellphones and wait to take pictures until permission is granted by the medical team.
Many parents are furious about these new rules. Petitions can be found calling on hospitals to remove such restrictive policies and allow parents to document a momentous occasion.
Use of Video Evidence
Advocates of video evidence argue the use of recordings may ultimately reduce labor and delivery negligence and resulting birth injuries. They hope an environment of accountability becomes the norm.
Medical malpractice cases have long been a way for injured patients to seek justice when medical negligence caused their injury. When video evidence is available, the judge ultimately decides whether it can be played for a jury at trial.
In the past, courts often analogized video evidence to photographs and used the same standard when determining if the evidence could be used during trial. The photograph standard evolved over time to become relatively strict. However, standards applied to video evidence have been more relaxed. Generally, if a witness can verify that the recording is an accurate portrayal of the event and is relevant a court may admit the recording as evidence. As long as the video is not edited so that the portions of the video are removed without accountability for the editing, the video has probative value that likely outweighs the arguments of prejudice by the doctor or hospital.
Relaxed Standards Can Still Pose Difficulties
Although courts have relaxed the standards used to judge the authenticity of recordings, there remain complex evidentiary questions that must be answered before video may be admitted at a trial. This includes reviewing the recordings on the following grounds:
- Fairness and accuracy
- Potential to cause prejudice or confusion
Since there are complex rules that apply to the use of video evidence, it is best to discuss each unique situation with an experienced Ohio medical malpractice attorney. An experienced birth injury lawyer can review your situation and determine if the video is potentially admissible and what the potential arguments against and in favor of the video being shown to the jury are and whether it is in the best interests of the case.
Videotape evidence may provide many advantages and can be a persuasive tool. A video allows a window into what occurred at the time the injury occurred. Of course, it does not take the place of expert testimony that is also required in these types of cases. Drawbacks of video evidence may be cost to produce the exhibits and poor quality. In addition, if the video that was taken by a family member does not accurately reflect the method and manner of delivery and does not reflect all measures undertaken to deliver the baby in distress, then the Court may rule that the video does not accurately reflect all that was done and thus may exclude it as being unfair and prejudicial. If quality is a concern then the evidence might not help a case.
When a birth injury is caused at the hospital by a medical professional’s negligence, a recording could provide an invaluable piece of evidence. Video can provide an overview of exactly what occurred in the delivery room. This is particularly important if the medical record did not indicate that there were any problems during delivery. While all parents want an uneventful delivery of a healthy baby that does not always happen. A video should never be taken with the view that litigation is likely or to try to catch a doctor or nurse doing something wrong. However, if permitted and a video is taken, know that it will have to be produced in its entirety if intended to be used in litigation if an adverse outcome occurs during the video. So, be careful what you say and how the recording is made.
If you or a loved one is impacted by a birth injury resulting from negligent care, compensation is available to cover medical and rehabilitative expenses as well as pain and suffering. During the difficult time that follows a birth injury, it is wise to seek the counsel of an experienced birth injury attorney to ensure all your legal rights are protected.
Videotaping a birth should be a happy event and all parties should embrace the concept but the reality of the situation is such that the potential for the video to be used to disprove a denial of negligence is huge. A picture is truly worth a thousand words, but be careful not to abuse this form of media.