Videotaping Births Raises Legal Dilemmas

As Mom-to-be labored away, happy chatter filled the Houston delivery room. The husband, mother and sister of the expectant mother kept her company while recording the event for posterity — narration and all — with an amateur video camera.

But the video camera captured more than anyone had expected.

During labor, the umbilical cord became wrapped around the infant’s neck and cut oxygen to the brain. Although cord complications are common, the family’s video, the fetal heart monitor strip and a nurse’s taped deposition show the medical staff failed to recognize or relieve the infant’s distress.

The baby fought a fierce struggle to survive: Her heart rate sank to about 60 beats per minute, less than half the norm, for about 10 minutes. For more than 40 minutes until delivery, her pulse wildly fluctuated.

The results were devastating. Although the girl survived, she is blind and irreversibly brain damaged.

The tape eventually became Exhibit A in a multi-million dollar lawsuit and prompted the hospital to ban cameras from delivery rooms. When faced with the evidence, the hospital settled out of court last June for $15 million — the largest known payoff for a botched delivery. The hospital also changed its policy: No cameras allowed.

As no-taping policies become more common in hospitals across the country, the Houston case highlights an emotional struggle between patients’ wishes and doctors’ efforts to protect themselves from costly litigation.

The Best Intentions

As part of the deal, the Houston family members agreed not to identify themselves or speak publicly about the case. Their attorney can speak to reporters only if they agree not to reveal the identities of the parties.

“[The tape] is scary to watch,” says attorney Richard Mithoff. “That’s why they paid such an enormous amount of money to keep this out of the light of the courtroom.”

Horror stories like the one from Houston seem to have had an impact on doctors' feelings about video cameras in their delivery rooms.

Statistics are hard to come by, but 40 percent of obstetricians surveyed recently by University of Iowa researchers said they have prevented patients from videotaping births. Eighty percent of that group cited legal concerns. The American College of Obstetricians and Gynecologists discourages recording any medical or surgical procedure for patient memorabilia.

But if doctors are doing their job correctly, what do they have to hide?

Dr. Bruce Flamm, an obstetrician in Riverside, Calif., admits that at first glance, videotaping a delivery may seem harmless. “But sometimes even the best intentions can go badly wrong,” said Flamm, also the research chairman at Kaiser Permanente Medical Center.

In his own practice, new fathers can turn on their cameras only after the baby is born.

So far, no patients have protested his policy, and Flamm doesn’t question why: “I wonder how many families across America would invite friends and relatives over to observe the patient’s vulva and vagina as the baby’s head comes out?”

Bill Would Bar Taping Bans

Beyond the factor of taste, a moment-by-moment videotaped account of a delivery leaves the doctor vulnerable to second-guessers and frivolous lawsuits, Flamm said. “In hindsight, someone sitting in the comfort of a La-Z-Boy might find subtle little things that could have been done differently,” he says.

Further, some doctors and nurses may get nervous with the red light of the camera in their eyes, affecting how they administer care, Flamm added. And research shows jurors are more likely to believe and pay attention to videotaped evidence than regular testimony, which can be tedious.

But as doctors weigh their patients’ interests against their own, some are questioning the merits of banning cameras. In the wake of the Houston tragedy, a Texas state representative is crafting a bill that would bar hospitals from preventing taping.

“I would be concerned about any doctor who was concerned about being videotaped,” says Mithoff. “We are talking about life and death. The more we know, the better off we will be.”

Communication Is Key

Many hospitals, of course, still allow patients to tape births. Indeed, some hospitals are actually welcoming cameras and offer fully wired delivery suites so new parents can quickly send video of the birth to distant relatives via e-mail.

In the end, communication is the key to finding a solution that suits both doctor and patient, says Dr. Jerome Yankowitz, director of the division of maternal-fetal medicine at the University of Iowa. Research shows malpractice lawsuits are less likely when doctors and patients have a good relationship and talk through issues, he said.

Yankowitz advises doctors offer consent forms to their patients who want to videotape. With their signatures, patients acknowledge they may be asked to turn off their cameras and get permission of nurses and other staff before taping them at work.

“I don’t think of it as protecting physicians,” he said. “The patient and physician are assisted with the tools to sit down and talk to each other. The biggest thing is to prevent ill will.”

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