A patient wants to flip on a video camera to capture her surgery while she's out cold. What should her doctor do? That question is vexing hospitals and legislatures across the country.
Patients and transparency advocates say recordings can hold doctors accountable and help hospitals learn from mistakes. But doctors and hospitals raise concerns about privacy, lawsuits, and harm to the doctor-patient relationship.
Beth Israel Deaconess Medical Center, a 672-bed hospital in Boston's Longwood Medical Area, has noticed an uptick in patients requesting to record medical visits, said hospital spokeswoman Jennifer Kritz. Some want to record a doctor's instructions or film physical therapy sessions. Others are making a more controversial request to record a medical procedure.
The power of recordings gained widespread attention this year, when a Virginia patient won a $500,000 malpractice suit after a secret audio recording revealed his doctors made vicious comments about him while he was sedated during a colonoscopy.
Attorney Mike Charnoff, who represented the patient, said he has received a dozen phone calls from attorneys and patients seeking to file similar suits. But he said the results are hard to replicate because the doctors' comments in that case were exceptionally offensive, and because most patients aren't able to catch them on tape. His client's cellphone was in the pocket of his pants, wheeled into the room on a cart. That happened only because the surgery was in an outpatient setting, Charnoff said; most surgeries take place in a hospital, in a sterile environment.
In Massachusetts, state law prohibits patients from making recordings without consent: All parties in a conversation must agree to being recorded. Beyond that, Beth Israel Deaconess doesn't have a policy and has assembled a committee to write one, Kritz said. Several surrounding hospitals said they do allow patients to make recordings, so long as the medical staff in the room consent.
Meanwhile, patients across the country are pushing for more power to press "record." A Wisconsin state representative, inspired by a man who lost his sister after a botched surgery, introduced a bill this spring that would require hospitals to offer patients the option of recording surgeries.
The National Medical Malpractice Advocacy Association is trying to get a similar measure introduced in Indiana, according to local chapter director Betty Daniels. Mississippi and Massachusetts lawmakers have introduced similar bills in recent years to no avail, according to the National Conference of State Legislatures.
Back when he was a state lawmaker, Boston Mayor Marty Walsh introduced bills (in 2009, 2011, and 2013) that would have granted patients the right to film their surgeries. The bills were inspired by a constituent whose mother died during surgery at Brigham and Women's Hospital. All three efforts failed amid opposition from hospitals' and doctors' associations.
The Massachusetts Medical Society, an association of physicians, opposed those bills. In a recent interview, Dr. Dennis Dimitri, the organization's president, said asking to film a surgery introduces an element of "distrust" between the doctor and patient, because it seems to "anticipate wrongdoing." Recording "may cause people to be much more guarded about what they say," he said.
Dimitri also cited logistical concerns: How would the videographer stay out of the way of the surgery? What would prevent the video from getting posted on social media, betraying the privacy of the patient or the medical team?
Patients' recordings also stand to expose hospitals to more malpractice suits.
But video recordings could actually help the hospital in those lawsuits, argued Richard Corder, assistant vice president of CRICO Strategies, whose parent company provides malpractice insurance to Beth Israel Deaconess and other Harvard-affiliated hospitals. In most malpractice suits, he said, "we never have any way of actually knowing what happened."
"If we've got to defend that practice," he said, "I'd want to have that recording." Hospitals could use the videos to learn from mistakes or figure out why one surgeon has a lower surgical infection rate than another, Corder added.
Knitasha Washington, executive director of Consumers Advancing Patient Safety, said any tool that records medical errors can help improve patient safety.
One Canadian surgeon, Dr. Teodor Grantcharov, has designed a surgical "black box" that aims to do just that. The device records not only audio and video, but also hundreds of other medical data points during a surgery, he said.
The black box has been piloted at St. Michael's Hospital in Toronto, and is set to be tested in two US hospitals next year, as well as in other hospitals in Canada and Europe, Grantcharov said. He said it has great promise to reduce medical errors — so long as it's used in the spirit of improvement. If the videos are used to "blame and shame" staff, he said, "it will kill the whole safety culture."
Back at Beth Israel Deaconess, Dr. Tom Delbanco said allowing patients to record doctors' instructions could be a helpful supplement to the program he co-directs, OpenNotes, a hospital web portal that allows patients to read their doctor's notes.
Delbanco said that when he was a clinician he actually encouraged patients to bring recording devices to the hospital — for office visits, at least.
Patients immediately forget 40 to 80 percent of what a doctor tells them during an appointment. "And what they remember, they remember half of it wrong," Delbanco said.
Tech companies are starting to design products to fit this niche.
In Boston, a company called VerbalCare created an iPad app that helps nonverbal patients communicate with hospital staff. Founder Nick Dougherty said VerbalCare plans to add a feature that would allow patients to record what their doctors and nurses tell them.
Dougherty said he found it helpful during an ankle surgery this summer to audiotape his pre- and post-operative instructions, with hospital staff's permission. While any iPhone can record sound, VerbalCare plans to store the audio in a secure server, where it can't be manipulated or hacked.
Randy Gonchar, who sits on Beth Israel Deaconess' Patient/Family Advisory Council, said he also sees a benefit to audio-recording, especially for patients who get anxious in the hospital and might forget instructions.
But he said he worries that doctors might not give as candid advice about a particular drug or treatment. When every word is recorded, he said, "you have to be really, really careful what you're saying."
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