The Famous Dr. DeBakey and His Two Controversial Practices

Certain scenarios suggest that recordings could be beneficial to all involved. The least problematic of these would be a simplified audio (not necessarily a video) recording of the informed consent process, which would be made available to both the physician and the patient in the event of a dispute. Studies have shown that the further away in time from a procedure, the less the patient remembers about what he or she was told about consent for the surgical day. The Malpractice Cure, Edward D. McCarthy, 2009 (pgs: 56-57). Having a recording could help clear up memory lapses for both participants in the conversation. Permission to record would be based on the contractual relation between the physician and the patient, and would have to be agreed to by both parties.

Sometimes, as with Dr. DeBakey, the physician is the one who wants the operation recorded. If a physician has any plans to record his or her operative procedure, he should obviously carefully document permission from the patient. With today's infection risks, it only makes sense that a physical video recording of a procedure be done under the supervision of the hospital team; but, remember, the resulting video may be ripe for discovery by attorneys for the patient and/or the defendant in a pending case.

While it is one thing to record an office encounter where a discussion is had about the expected procedure and informed consent, it is entirely another to permit the patient to make a relatively uncontrolled video. Should a patient really be allowed to video her surgical procedure? A number of questions arise when the patient makes such a request:

1. Will the proposed recording be made by means of a smartphone?
2. Will the patient hire someone who would have to meet all of the qualifications of sterility for an operating room?
3. Would the proposed videographer have the technical skill to actually follow the procedure?
4. Will a recording cause unnecessary distress to the patient? For instance, there could very well be comments made during a surgical procedure to the effect that the surgeon suspects cancer, when pathology results confirm that this preliminary diagnosis is not correct. These suspicions might not have risen to the level where the surgeon would have communicated them to the patient prior to receiving the results of further tests.

What Could Possibly Go Wrong?

A relatively recent case described in June of 2015 in The Washington Post provides one cautionary tale. Jackman, T., “Anesthesiologist Trashes Sedated Patient ' And It Ends Up Costing Her,” The Washington Post, 6/23/15. The incident that brought on the lawsuit over the contents of a recording made during a medical procedure occurred in Virgina, which is apparently a “one-party consent state.” This means that only one person involved in a conversation needs to agree to the recording.

The case described in the June 23 Washington Post article concerned a man who underwent a colonoscopy. While preparing for the procedure, he pressed “record” on his smart phone so that he could preserve the instructions he was being given about what to do during the post-procedure recovery period. However, when the patient listened to the recording on his way home, he found that he had recorded the entire examination and that the medical professionals in the room had insulted and made fun of him while he was sedated. In addition to their rather vicious commentary, the doctors discussed avoiding the man after the colonoscopy, instructed an assistant to lie to him, and then placed a false diagnosis on his chart. The anesthesiologist was quoted on the recording as saying to the patient, “After five minutes of talking to you in pre-op, I wanted to punch you in the face and man you up a little bit.”

A medical assistant noted that the man had a rash and the anesthesiologist warned her not to touch it, saying to the woman that she might get some syphilis on her arm from it. There were more such comments on the recording. The man sued the doctors and their practices for defamation and medical malpractice. After a three-day trial, a Fairfax County, VA, jury ordered the anesthesiologist and her practice to pay $500,000. According to The Washington Post , one of the jurors reported that the recording was so persuasive that the defense had almost nothing of value to offer in rebuttal, and that the jurors felt that they had to give the man something in order to make sure that this sort of thing did not happen to others.

Many states have laws that differ from Virginia's, requiring consent from all parties who will be recorded. Be aware of the law in your own state. Every medical team should treat patients with respect, but if they're in a one-party-consent state medical personnel should make an extra effort to express themselves in a professional manner at all times. You can never know for sure when someone ' or something ' is listening.

It Goes Both Ways

One of my partners recently defended a neurosurgeon at a major teaching hospital who performed endoscopic brain surgery to drain a patient's cyst, which had been causing headaches and other problems. The procedure was performed without incident, although there were bleeding events, which are typical for this type of procedure. The entire operation was recorded. Unfortunately, the patient awoke aphasic and with a right-sided hemiplegia. The patient recovered somewhat, but continues to have significant physical and cognitive deficits.

When the patient brought suit, both sides used the intraoperative video at trial. The plaintiff was trying to show areas where the tips of the cautery went beyond the cyst wall, claiming that was how the thalamus was injured. The defense presented other portions of the video showing that the cyst was very vascular, as well as showing the use of a balloon and spreader that went beyond the cyst wall ' all to make it clear that going beyond the cyst wall was the only way to effect the drainage.

During jury deliberations, the two things that the panel asked for were the cautery and a way to view the intra-operative video. The jury returned a verdict in favor of the defendant within about two hours of viewing the video.

Conclusion

Forty years ago, Dr. DeBakey performed surgeries, then scrubbed into the next operating room, where another open chest awaited him. He also filmed these procedures. Dr. DeBakey was a man ahead of his time, as these two practices are now becoming commonplace.

Today, doctors and lawyers have to be aware that most of the world is armed with smartphones capable of audio and visual recording. Health care facilities need to be prepared to deal with this by formulating reasonable rules and regulations for when, how and by whom recordings may be made. Informed consent prior to filming is key, where both sides come to agreement as to the nature and extent of the recording. Recorded operations are certainly a fertile ground for discovery by plaintiffs and defendants; recordings may prove how a procedure was botched, but they also may turn out to show that the surgeon acted very appropriately and did the procedure exactly as it was supposed to be done. And, with video evidence before them, a jury can actually see just how complex the surgery was.

More importantly, today's in-demand surgeons, just like Dr. Michael DeBakey, can save hundreds of lives because they need only do the so called “critical portions” of surgical procedures. While the practice of overlapping surgery may sound a bit distressing to patients, if it is fully disclosed in advance (and agreed to), think of all of the benefits that can come from permitting an extremely competent surgeon to do half a dozen cases in the course of a day instead of just one.

Edward D. McCarthy is a partner in the firm of McCarthy Bouley Barry & Morgan, specializing in medical malpractice defense, product liability, and general health and hospital law. He is the former City Solicitor of Cambridge, MA, and General Counsel to the Cambridge Public Health Commission, and author of The Malpractice Cure: How to Avoid the Legal Mistakes that Doctors Make.