Virginia Legal Trends and More: Delivery room video could end up being evidence

Interesting article from VLW:

By Peter Vieth
Published: February 25, 2011

More hospitals may be drawing the line against family members shooting video in the delivery room, but reports from Virginia lawyers suggest there may be more to the issue than just fear of liability.

A recent New York Times article indicates hospitals have been rethinking whether it’s a good policy to let Daddy haul a video camera into the birthing suite to record baby’s first breath. Some families have complained, but hospitals contend the medical professionals have enough to do during a delivery without playing bit parts in a domestic docudrama.

And then there’s the looming issue of medical liability. As video equipment has become more portable, couples intent on recording every precious moment have produced footage that has found its way into evidence in court. While they may be reluctant to acknowledge the issue, hospitals would prefer the medical chart to be the only record that documents the actual birth experience, many lawyers suspect.

It’s not an idle concern. Lawyers described at least four Virginia birth injury claims where the outcome turned on video recorded by family members in the delivery room. Three produced recoveries for plaintiffs, but one led to an arbitrator’s finding in favor of a defendant doctor.

Meanwhile, inquiries to state hospitals produced, for the most part, stony silence. Of six major hospitals or hospital groups in Virginia contacted by Virginia Lawyers Weekly, only VCU Medical Center responded with information about its policy on delivery room cameras. VCU generally does allow videotaping and still photography of birth by family members, a spokesperson said.

Birth videos find their way to the courtroom most often when an obstetrician is accused of improperly responding to a complication of delivery known as shoulder dystocia.

An infant’s shoulder can become caught during birth. Obstetricians are trained to perform a series of maneuvers to dislodge the shoulder and deliver the baby.

Shoulder dystocia can result in permanent nerve damage and deformity for the infant. A critical question in many such cases is whether the doctor used excessive pulling force or pressure in the wrong place to try to accomplish the baby’s delivery.

In 2005, a Norfolk jury returned a verdict of $650,000 for a 5-year-old boy who was left with a right arm deformity as a result of shoulder dystocia. The father had a camera running during the birth. “The family, in this digital age, wanted to document every family event,” said Norfolk lawyer Robert E. Brown, who represented the plaintiff.

Although Judge John C. Morrison did not allow the jury to actually see the father’s birth video, he permitted the parties’ experts to describe it to the jury. “It was very helpful to the expert in determining exactly what happened as to a breach of the standard of care,” Brown said.

Although Morrison found the video was relevant, he refused to allow the jury to see it because, he held, its probative value was outweighed by its potential inflammatory and prejudicial effect.

Newport News Circuit Judge Walter J. Ford had similar concerns in a 2008 shoulder dystocia trial, but he allowed a father’s birth video into evidence. Over the objection of defense lawyers, he permitted the jury to watch the video one time only, according to Lisa P. O’Donnell of Norfolk, the plaintiff’s lawyer in the case.

The defendant doctor had charted that he performed the usual appropriate maneuvers to relieve the obstruction, but O’Donnell’s expert said the video told a different story. “He was pulling pretty forcefully trying to deliver the child as opposed to other maneuvers that would have avoided traction on the shoulder,” O’Donnell said.

The jury promptly returned a verdict for $1.55 million, the amount requested by the plaintiff’s lawyers, O’Donnell said.

Defense lawyer Kathleen M. McCauley of Richmond said her firm helped settle a case on behalf of a physician named in a birth injury lawsuit. The family’s video, produced in discovery, “would have been compelling to a jury, but prejudicial to the doctor,” she said. The video was a factor in deciding to settle short of trial, McCauley said. “Unfortunately, courts are letting them in,” she said.

At least two lawyers described the delivery room video as a double-edged sword, and it proved such for Bristol lawyer Richard E. Ladd Jr. defending a doctor in a shoulder dystocia case.

At arbitration, the critical issue was the amount of force the obstetrician used to dislodge the shoulder. “It all came down to how much downward pressure was applied by the doctor,” Ladd said.

At the arbitration, “we slowed the video down, almost frame by frame, and allowed the physician to testify contemporaneously,” Ladd said.

“The video showed it did not happen the way that the plaintiff’s expert said that it happened,” Ladd said.
The arbitrator decided in favor of the defendant doctor.

Lawyers agreed hospitals seem to be closing the door to family cameras in the delivery room. “Today, you hear the vast majority of families say they were not permitted to videotape,” said O’Donnell.

“I believe the current hospital consensus on this issue is ‘no,’” said Ladd, even though the birth can be among a family’s most cherished memories.

Hospitals are “protecting themselves, but at the cost of annoying families,” Brown said.

Little information about specific policies is available. “The AHA has not put out any formal guidance on this,” said Marie Watteau, a spokesperson for the American Hospital Association. She suggested that anyone contemplating a birthday documentary plan ahead. “Families should talk with the obstetrician well in advance to determine what can be done,” she said.

Plaintiffs’ lawyer Charles J. Zauzig of Woodbridge said he doesn’t see why medical providers don’t routinely videotape every delivery. “Then you’d have an independent, nonbiased piece of evidence as to what went on in that delivery room. You wouldn’t have a swearing contest,” he said.

Zauzig said he has considered performing an informal survey, gathering videotapes of birth cases and assembling a panel of obstetricians to compare them to the medical records.

Defense lawyer Carlyle R. Wimbish III of Richmond suggested hospitals are right to be leery of would-be Spielbergs running around the delivery room. “It can become a surgical procedure,” he points out. “They don’t allow families to scrub up and videotape grandmother’s gallbladder surgery,” he said.

“It’s a healthcare setting; it’s not a spectator sport.”