Physicians Beware: Videotapes Can be Used Against You at Trial

Physicians should be aware that patients can use their smart phones or other electronic devices to tape alleged malpractice or negligence and introduce this evidence at trial. The presiding judge will determine whether the videotape may be presented.

Videotape, audiotape, and/or photographs can be introduced at trial if a proper foundation is laid and the subject matter is relevant, according to Robert Kreisman, JD, medical malpractice and personal injury attorney with Kreisman Law Offices in Chicago.
Kreisman was quoted in a recent issue of ED Legal Letter.

“To inform the jury, videotape could be introduced to give time and place. On the other hand, it depends on the quality of the videotape and what it depicts,” says Kreisman.

If the purpose of the videotape is viewed by the court as a means to inflame the jury to one side or the other, it would be within the trial judge’s discretion to bar the use of the videotape, says Kreisman.
“If the use of the videotape is to show some sort of improper conduct or negligent medical care, then the videotape could be utilized,” he says.

In Illinois, video taping an individual in a private setting without permission is a felony. But an emergency room or other public area in a hospital is not considered a private setting, however.
William Sullivan, an emergency physician at University of Illinois Medical Center in Chicago and a practicing attorney in Frankfort, Ill., gaves the example of a patient who alleges disability, but who is seen on surveillance video performing heavy manual labor. “The video was obviously unauthorized by the person alleging the disability, yet, with proper verification, will likely be admissible as evidence,” he says.

Privacy laws generally don’t apply to public activities, notes Sullivan.”In the closed room having a discussion with a patient, I don’t think that a [doctor’s] invasion of privacy claim would be very strong if the patient or a patient’s agent is the one doing the videotaping,” he says. “If it is a third party videotaping through a peephole, then that would be a different story.”

Before video evidence may be used as evidence during a trial, the litigant generally must prove that the evidence is relevant and reliable. A court determines both requirements and may exclude evidence that has no bearing on a material issue in the case.

“If an issue in the case is that a patient was ignored, and the videotape shows staff stepping over a patient who was passed out on the ground, then it will probably be admissible,” he says. On the other hand, if the videotape shows the patient sitting in a chair with other patients waiting for a room to open up, then there is no relationship to the care provided and it is probably not admissible, adds Sullivan.
Video recordings that are not admissible at trial may still be admissible in administrative hearings or during arbitration hearings, since the rules of evidence are not as stringent in such proceedings.
There is little that can be done to prevent patients from posting video recordings on the Internet, or sending the recordings to television stations so that videos can be scrutinized in the court of public opinion. In addition to using recorded video, there are several legal issues involved in obtaining such video.

“By introducing audiovisual evidence to obtain an advantage at trial, a party to civil litigation may be admitting guilt of a crime,” Sullivan says. While there may be a distinction in the legality of obtaining purely video vs. audio and video recordings, for the most part, portable electronic devices record both audio and video streams, and there is usually no way to disable audio before recording begins.

Because most laws criminalize recording of unauthorized audio, he explains, an audiovisual recording in which an audio stream was later removed would still violate laws applicable to recording oral conversations.

“The right to take purely video recordings of another person is not absolute, either,” says Sullivan. Making any type of recording in which an individual has a reasonable expectation of privacy may violate state or federal privacy laws, subjecting the person making those recordings to civil or even criminal liability, he adds.

In any case, Sullivan says that the hospital cannot prevent a patient from recording an encounter and has little ability to take action against a patient who has done so. “Realistically, the only action a hospital can take is to request that the patient leave the premises,” he says. “By that time, the recording has already been made.”

Kreisman Law Offices has been handling Illinois medical malpractice matters for individuals and families for more than 36 years in and around Chicago, Cook County and surrounding areas, including Rolling Meadows, Chicago’s Streeterville neighborhood, Lincolnshire, Elmhurst, and Arlington Heights.