Can Birth Videos Affect the Outcome of a Medical Malpractice Lawsuit?

Videotaping a child’s birth used to be commonplace. It was one of the joys of modern parenting. However more and more often, hospitals have forbidden the practice, in large part because of liability concerns.

A recent New York Times article explored this trend and its connection to the fear of medical malpractice lawsuits: Judging How Birth Videos Affect a Lawsuit.

In the article, the double edged sword effect of birth videos was noted:

The first consideration for a trial attorney is how this plays to a jury, said Paul Myre, a lawyer in St. Louis who has defended doctors and hospitals in malpractice cases for 25 years. He said video could help hospitals or hurt them but that jurors often sympathized with parents.

Video can sometimes be the smoking gun in a medical malpractice lawsuit of this type. In many cases, the audio portion of the tape may expose liability even where the video portion shows none. An example of this was described in the article:

In a case in which audio was crucial, mentioned in a 1998 article in The Journal of Family Practice, a father’s recording picked up complaints by nurses that a doctor would not get off the phone to attend to a delivery. It also caught warnings from the fetal monitor, providing an ominous soundtrack.

Many plaintiff’s attorneys won’t take a case unless there is video, which is yet another reason that hospitals have started banning the practice of videotaping births. Thus, as explained in the article, a plaintiff’s attorney who had recently won a large settlement against a hospital in a birth case explained that:

(W)ithout video, he probably would not have won the settlement. And, he said, some trial lawyers are less willing to take on such cases when there is no video, adding to the reasons for hospitals to ban it.

Video is an important weapon in the arsenal of attorneys litigating these types of cases, and it’s unfortunate that hospitals are reacting in such a knee jerk, defensive fashion. While it may prevent medical malpractice lawsuits, it does nothing to better the services provided to their patients and has the potential to do more harm than good in the long run.

Howard Ankin of Ankin Law Office LLC (www.ankinlaw.com) handles workers’ compensation and personal injury cases. Mr. Ankin can be reached at (312) 600-0000 and howard@ankinlaw.com.