Cameras in the Operating Room: A New Problem for Docs?

Video Cameras Installed in All Operating Rooms: Will It Happen?

There's a growing movement in the United States to install video cameras in operating rooms (ORs), according to a report late last month in The Washington Post.^[1] The idea is to document possible adverse events and thereby prevent similar ones from occurring in the future, but critics worry that recording devices in the OR would not only compromise patient and doctor privacy but lead to a wave of new malpractice lawsuits.

The camera-in-the-OR movement has taken off because of a number of high-profile medical mistakes. A woman named Julie Ayer Rubenzer died after breast-enhancement surgery done in Florida, after she was given excessive amounts of propofol, the same anesthetic that led to the 2009 death of pop star Michael Jackson.

Following Rubenzer's death, her brother, Wade Ayer, founded the National Organization for Medical Malpractice Victims and helped to draft a bill, named for his sister, that would require cameras in every operating room in Wisconsin. The bill has the support of patient advocacy groups around the country, and its progress is being closely monitored by lawmakers in other states. Ayer has also been surveying members of Congress to assess interest in a federal law mandating surgical cameras.

The current method for recreating mistakes in the OR, say advocates, too often relies on frequently unreliable sources: the memories of those present and whatever notes have been taken during or shortly after the procedure. In contrast, says Ayer, the practice of recording procedures "offers transparency, truth, and accuracy in collecting data for the medical record and testimony. It offers data and insight for medical boards and even prosecutors. It offers oversight and policing."

While Ayer's proposal has faced opposition from Wisconsin's medical providers, some doctors think it's a good idea, one that could actually help to protect them and decrease the number of malpractice suits. Toronto surgeon Teodor P. Grantcharov, a professor at the University of Toronto, is among them. He has built a "black box" that precisely matches a surgical patient's physical data with video and audio recordings of his or her operation. To date, Grantcharov has lined up two US hospital systems to beta-test the technology.

"In the majority of cases, the data will protect doctors in court," Grantcharov says, adding that the number of malpractice claims should drop, assuming the system is used correctly. "If it's used for destructive purposes, the profession will shut it down. It's a very delicate topic right now."

Delicate, indeed. Although the American Medical Association in 2005 adopted a policy on filming patients in healthcare settings for educational purposes, it required that such filming be strictly limited to patients who have given their consent beforehand.

In Massachusetts, a bill that would require hospitals to permit surgical recordings by a licensed videographer at patients' expense has met stiff opposition from hospitals, according to news reports.

The privacy issues raised by putting cameras in the OR are huge, and not just for patients, says Bruce A. Cranner, a New Orleans-based malpractice defense attorney. "Healthcare providers have a justified right to be able to talk among themselves about a patient without fear that [they are] going to be second-guessed or overheard."

This Damages Cap Is Unconstitutional

A Utah law that capped noneconomic damages in medical malpractice cases has been ruled unconstitutional in a narrow subset of such cases, reports The Salt Lake Tribune in an August 14 story.

In 1986, state lawmakers amended the Utah Health Care Malpractice Act in order to set a $450,000 limit on awards for pain and suffering and other noneconomic damages. What they didn't take into account at the time, however, was that a section of the Utah constitution expressly prohibits such limits in cases of wrongful death.

The constitutional question was addressed at the urging of a US district judge, who's overseeing a case filed against the United States by the parents of military veteran Gregory Lee Smith.

In their suit, the plaintiffs make two principal claims: that, after undergoing back surgery, their son was prematurely discharged from the VA Medical Center in Salt Lake City and that, while an inpatient there, he received care that fell below the generally accepted standard. Smith died in 2010, 10 days after his procedure. His parents, who are alleging negligence and wrongful death, are asking for an unspecified amount of money for loss of support, loss of comfort, emotional distress, and other noneconomic damages.

In its ruling, the state's high court said that the applicable section of the constitution trumps the amended malpractice act. It noted that noneconomic damages can't be capped because they were available to parties in wrongful death suits at the time the state constitution was adopted.

The ruling doesn't apply in cases where the alleged malpractice doesn't result in death, nor, in fact, does it resolve the question of whether medical malpractice was the cause of Smith's death.

Margin for Error in Filing Claims? One State Will Decide

Should a prospective plaintiff's minor filing error be enough to scuttle an otherwise reasonable medical malpractice claim? That's the question that the Tennessee Supreme Court will soon weigh in on, according to an August 8 story in the Knoxville News Sentinel.

The underlying case involves the widow of Scott Eiswert, a member of the National Guard who was called to active duty in 2003 and served the next 2 years in Iraq. During those 2 years, he was under constant threat from roadside bombs and car bombs. He also witnessed an explosion that took the lives of nearly 100 civilians, many of them children.

He returned home suffering from posttraumatic stress disorder (PTSD) and began private counseling, during which his condition was confirmed. But after he lost his insurance, he sought help at the James H. Quillen VA Medical Center, in Mountain Home, Tennessee. Court records show that doctors at the center never reviewed the notes of Eiswert's private counseling sessions; instead, they labeled his problem depression and prescribed various antidepressants.

Claiming the medicines weren't helping, Eiswert soon declined further treatment. Two months later, in May 2008, he shot himself.

Eiswert's widow tried to file a claim, alleging that the VA's negligence had led to her husband's death. But in the process, she failed to file a mandatory generic form, and a US district judge tossed out her case.

She appealed the dismissal on the grounds that the paperwork she filed provided essentially the same information as that which was required on the form. The 6th Circuit US Court of Appeals was sympathetic, noting that Tennessee law is unclear on the question of how strictly the filing process must be adhered to. (In recent years, Volunteer State lawmakers have been making the filing process more arduous.)

That question will now be addressed by the state's highest court.