Lights, Camera, Action in the Operating Room
September 28, 2021 | Medical Malpractice
Although the proposal has been pending for several years, the fight over AB 863, which would allow patients to record surgical procedures, is just now heating up. Could this progressive proposal spread to other progressive states, like New York?
South Korean lawmakers recently passed one of the world’s first laws allowing surveillance cameras in operating rooms.
Proponents are convinced that similar measures in the United States would reduce the number of medical malpractice claims, since everyone is on their best behavior when they know someone is watching.
But not everyone is convinced. Even some plaintiffs’ lawyers who represent medical malpractice victims are skeptical.
“I don’t think it would be particularly probative for proving deviation from a proper procedure, because it would be difficult to visualize the surgical field,” one remarked.
In fact, “I think it will potentially lead to misleading assessments of what is occurring and it may not capture everything that is relevant,” he added.
Others pointed to possible technical problems, such as having a camera at the correct angle throughout the procedure.
Video Evidence in Civil Claims
Like pretty much everything else, video technology in courtrooms has changed significantly over the past twenty-five years.
Back in the day, video evidence was often unpersuasive. The grainy black-and-white footage that most cameras recorded was difficult to see from a distance. There were technical problems as well. Most courtrooms didn’t have monitor screens.
Now, things are different. Most cameras record high-definition digital footage. Furthermore, most courtrooms are pre-wired for video evidence. When jurors see a giant screen TV on the wall, they expect to see something on that TV.
As technology has advanced, the law has changed a bit as well. Once upon a time, authenticating video evidence was a rather straightforward process.
Now, it’s more involved. After all, I can Photoshop pictures on my laptop and they look pretty realistic. Imagine what professional editors can do with professional editing tools.
These issues are particularly thorny when one side in this litigation, which in this situation is the victim-plaintiff, provides the video footage.
So, to maximize video evidence, a New York personal injury attorney often must go the extra mile. Frequently, that involves calling an independent video editor to the stand. This person then testifies that the video footage has not been altered in any way.
Proof in Medical Malpractice Claims
From a technical standpoint, it is rather easy to prove medical malpractice. The standard of care is high and the burden of proof is low. From a practical standpoint, things are different.
First, the victim/plaintiff must establish the standard of care in a medical malpractice claim. Doctors must always perform surgical procedures by the book. They cannot take shortcuts or add steps, even if their experience and training suggests otherwise.
Incidentally, doctors have a fiduciary duty toward their patients. They must set aside all other concerns, like saving time or making money, and only do what is best for their patients.
Next, the victim/plaintiff must prove that the doctor’s care fell below the acceptable standard. Video evidence could be quite useful on this point. Instead of speculating about the doctor’s acts, a witness can use video to point out the errors to jurors.
An unintentional mistake is not negligence. Neither is a poor surgical result. Instead, the doctor’s conduct must be so bad that it breached the aforementioned duty of care.
We should also talk about the burden of proof in a negligence claim. Usually, victim/plaintiffs must prove negligence, or a lack of care, by a preponderance of the evidence, or more likely than not. That’s one of the lowest burdens of proof in New York law.
Compensation Available in Surgical Mistake Claims
Damages in a surgical mistake claim usually start with compensation for economic losses, such as medical bills due to necessary revision surgery.
Moreover, many surgical mistake victims are not able to work for long periods of time. In some cases, they are never able to work again.
These victims are also entitled to compensation for their noneconomic losses, such as pain and suffering. To calculate these losses, most attorneys multiply the economic losses by two, three, or four, mostly depending on the facts of the case.
Largely because the duty of care is so high, additional punitive damages are usually available as well. The victim/plaintiff must prove, by clear and convincing evidence, that the defendant intentionally disregarded a known risk.
Evidence is crucial in negligence claims. For a free consultation with an experienced personal injury attorney in New York, contact Napoli Shkolnik PLLC.
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