The newest development in surgical technology is not an instrument or a special technique; it’s basically a “black box” device that records the actions taken by the surgical team during the procedure. Legislators in Wisconsin and New York have introduced bills that, if passed, give patients the rights to the video recordings of their surgeries. Malpractice litigation made easier through video replays!
Medmal is a huge issue in the U.S. Almost 98,000 patients die every year due to surgical errors and hospital mistakes, such as incorrect drug doses, incorrect prescriptions and misdiagnoses. Even scarier? The 98,000 deaths are the cases that are reported. The actual number may be even higher.
These cases are typically long, drawn out affairs, some taking years to resolve. This new “black box” innovation may make medmal cases easier to resolve, cutting down on time, expense and emotional difficulties for all parties.
And yet, there are those who fear this new technology. Some medical providers worry that recording surgeries may arm plaintiffs with irrefutable evidence if something happens and there is a medmal suit.
Well, duh! Of course it will. That’s one of the reasons the technology is being used. What medical professionals aren’t seeing is that the footage of their actions during surgical procedures may very well prove that they are not responsible for any poor outcomes from the procedure. It’s a double-edged sword.
However, it’s a sword I’d happily fall on were I in their shoes. I’m not a doctor, nor do I play one on TV, but I do know medmal cases. And juries. Sure, there’s a chance that the recordings could show the medical team botched the procedure six ways to Sunday. In these cases, the team should be held liable for the damage they caused.
Then again, if they didn’t do anything wrong, but the opposing side has a sympathetic plaintiff (one with whom the jury can personally identify) and it presents the struggles that person has on a daily basis because of a poor surgical outcome, things may not go well for the medical team. Despite the instructions given to the jury by the judge, jurors are emotional human beings. Their decisions are often affected by their feelings, if even on a subconscious level.
These cases, like all civil cases, are decided by the preponderance of evidence standard. This means that the most convincing evidence is the key to winning. In a contracts case, for example, an actual signed document is much more convincing than twelve witnesses expressing their opinions of the parties’ true intent. If the plaintiff’s attorney can convince the jury that, but for the surgery, the plaintiff would be a happy, whole, well-adjusted person, the plaintiff may just win. This is especially true in medmal cases as the only witnesses are typically the medical team and hired experts.
Adding recorded footage of the surgery to the list of evidence goes a long way toward meeting the preponderance of evidence standard. Even considering the emotional factor, if jurors have a front row seat to the actual surgery, it becomes harder to ignore the facts than if all they had was verbal testimony.
Regardless of opinion, the Wisconsin legislature will likely pass what has been dubbed “Julie’s Law.” Julie Ribenzer died during a routine surgery to increase her breast size. Not only did she get four times the recommended amount of anesthesia, but the person administering it had no certified medical training. On top of this, the surgeon was not qualified to perform the procedure.
The Wisconsin Hospital Association is very unhappy about Julie’s Law. It has referred to the bill as “ill-conceived legislation” and expressed that it is “disappointed with this legislation and the rationale behind its creation.” Hmmm… That, to me, says, “We know we make actionable mistakes and we don’t want it brought to light.”
Christine Sinick, D-WI, the bill’s sponsor, stands behind it on the grounds that it will benefit both patients and doctors. “I think it’s two-pronged. It is about protecting the patients – but it could also be about protecting the doctor, too,” she said.
Depending upon how Julie’s Law and its New York cousin perform, experts anticipate that similar legislation will eventually become law in all fifty states.
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