Rare but should be zero, agreed whole-heartedly. But I suspect that video would just create problems with keeping recordings safe and confidential. Unauthorised release of video of the semi-dressed and vulnerable would also be a violation and is more likely to happen. The assault issue is better dealt with by ensuring chaperones are available and used. A chaperone can’t be turned off, wiped or obscured.
Healthcare errors are many orders of magnitude more common than clinician sexual assaults. Video recording for that purpose is unlikely to be beneficial either. Most healthcare errors are the result of system failings —the person who makes the final error just falls into a hole left by others. The rational approach to reducing error is to have No Fault reporting and compensation for harm, while carefully dissecting the circumstances of the errors to redesign the problem out of the process. Lawyers generally want to pin blame on some-one and video cameras with footage that can be subpoenaed would make that too easy, directly undermining any no fault initiatives.
Out of curiosity, since you seem the type to know; what is the state of recording/retention of the video produced by medical devices? I’ve never heard of general-purpose ‘security camera’ type cameras being installed in ORs, exam rooms, or the like; but camera based endoscopes (are the classic fiber scopes still hanging on?) and all but the most basic implementations of other internal imaging technologies all produce output that either is, or could easily be, preserved. Same would go for non-video data from any monitoring equipment, computerized infusion pumps, etc.
Is the current state of the tech such that most of that could theoretically be recorded; but in practice is just streamed to a monitor in real time and otherwise sent to the bit bucket? Is there some, relatively unsystematic, recording; so that you could re-run the endoscopic footage from earlier in the day if you wanted a colleague’s input; but any expectation that such a recording might exist for a defined period of time; or transfer nicely to a different medical provider using different systems, or the like, would be a matter of luck? Am I underestimating the maturity of this, and such video would likely be as neatly integrated into ‘my file’ as good old X-ray film?(From chatter among techies, I hear that DICOM is a terrible, capricious, and eldrich nightmare; but it is evidence that people care about the problem.)
A camera just hanging off the ceiling, like it’s waiting for shoplifters, would creep me out(even if it’s ostensibly there for my protection; I could see having one in the supply closet, or wherever they keep the hospital’s supply of top-end addictive narcotics, though.); but I don’t imagine that the number of better-justified and more specific cameras is going to decrease anytime soon. Is there a professional sentiment, consensus, debate on what the plan is for what those produce?
From what I experienced spending a few weeks upgrading a hospital’s computers in advance of an EMS upgrade, a lot of medical devices output crazy proprietary data formats that use some hacked together player that’s sold by the same company that made the device.
Sorta like back in the day when the first color-screen mp3 players came out. They didn’t play AVI or mp4 videos. They required you to run your source through Same-sang video-maker studio-pro v4.3.6 which would output a file with the .s2vl file extension, and it wasn’t even a dissectable format that could be dropped into VLC.
Callous disregard for the patient’s welfare is a significant safety concern - as this case shows, it resulted in serious lapses in medical care, not just “hurt feelings.” This kind of attitude needs to be nipped in the bud because it’s the kind of thing that leads to all kinds of other medical mistakes and potentially patient abuse. You see the same kind of attitudes sometimes in elder care and the care of those who cannot care for or defend themselves, and it’s a serious problem. I never would have expected it in the surgery room, but then again I’m not surprised; many surgeons are so egotistical that the road to becoming a sociopath is probably a short jaunt.
@Brainspore; medical record not public record. Medical records are highly protected, and releasing them even inadvertently can result in significant penalties for doctors and hospitals. And while I jokingly suggested body cameras, that probably wouldn’t be a great idea for reasons others have stated above. Cameras could easily be placed in positions where they would capture the doctor’s activity and conversations but not the patient in a compromised position. If surgeries aren’t regularly recorded already, it’s because hospital administrators likely find it easier to avoid lawsuits or settle cases if there is no record. And that means the hospital is more concerned about their bottom line than patient welfare.
Your offer intrigues me. Have two basic areas of broad curiosity:
One is how, if at all, state defamation law interacts with first amendment related issues. My understanding is that a lot of state defamation laws are pretty closely derived from common law concepts that are old indeed, often older than the US and definitely older than the comparatively recent tendency to interpret the bill of rights as not only ‘things the feds can’t do to you’; but also ‘things your state, municipality, etc. can’t do to you’.
I’ve never heard of one of these laws, themselves, being challenged or struck down; but do defamation cases get appealed high enough to hit first amendment rocks with any frequency? Is that sort of appealing just not worth the effort and cost? Does state practice, in practice, tend to bend in the direction of avoiding cases that look doable under state law; but like a bad bet further up?
The other, potentially related, is about what it takes for a statement to be evaluated for ‘defamatory/libelous’ at all. I’m told that the US is considered a pretty hostile venue, at least in part because truth is treated as a very strong defense. So long as it’s true, it can be pretty brutal on the other guy’s reputation; too bad, so sad. Some other jurisdictions, this is not so, and at least some statements are still actionable even if true. At the state level, do these sorts of substantial differences exist? Is ‘true’ always good enough? Is ‘mere abuse’ not defamatory in some states; but as defamatory as if it were a literal claim in others?
That is…horrifying but not unexpected. I haven’t tested against live data; but the debian repos have some tools purporting to handle medical images in some way related to DICOM; but I imagine that that, in practice, means “the most well behaved subset of x-ray stills, if produced by the system used by the hospital where the project maintainer’s broken leg was treated”.
Unfortunately, VideoLAN’s Law is not sufficiently enforced: “If VLC does not render it, it must not actually be a video format.”
Ain’t it the truth? VLC can play practically ANYTHING, if it can’t play something, then it’s usually unsalvageably corrupted, or encrypted with non-standard algos.
Wait… someone explain the concept of “free speech” to me again.
I was just told in another BB forum that “guarantees of freedom of speech are so deeply ingrained” in Americans that they absolutely cannot imagine restricting it in any way, not ever, by a democratic vote. Okay, I like that, that’s what I mostly argue for when I am in European-dominated forums.
And now, a couple of doctors trash-talk a patient, in a way that shows they might be assholes.
Why do I say might? Because doctors in general are known to have a very crude kind of humor that is rarely funny to people outside the field of medicine and never, ever funny to patients. I think it’s a coping mechanism that might actually be necessary for them to keep their sanity. It’s a matter of mental hygiene.
A good doctor makes sure to vent all those things when no patient is listening.
Anyway, for the sake of argument, lets assume that the doctor in question really is an asshole. So she says things that really shouldn’t be said, and she assumes that no one is listening.
The result? FIVE HUNDRED THOUSAND DOLLARS FINE?
That’s excessive by a factor of fifty for any kind of defamation.
How is it “freedom” when you’re fined several years’ worth of income for being a complete asshole when you think no one is listening?
(a) other people. Well I think that in a “free country” there shouldn’t be any laws regulating what I share only with a few people. Which is why sane defamation laws require at least the credible danger of damage to the victims reputation.
(b) falsified the man’s medical record: ah, right, the fact that they actually wrote the hemorrhoids “diagnosis” down was buried deep down in the text. What does that have to do with defamation? The story should then be “patient diagnosed with hemorrhoids, finds out the diagnosis was made-up by secretly recording his doctor”.
I agree–haven’t delved deeply enough to know, but hopefully the award money is about the false diagnosis. I don’t see any validity to an award for the conversation between the doctors. They had verified he was unconscious, and had no reason to believe they were being recorded. The speech was not being broadcast to the public in a defamatory context, nor was it inducing a criminal act or putting others in danger. Free fucking speech.
Now, if the hospital, when confronted with the recording, was to fire those involved, or discipline them in some other way–fine. Their policies, their right. But legally they should be immune from any kind of lawsuit for what amounts to a private conversation. (The false hemorrhoid diagnosis, though–throw the book at 'em! That’s unprofessional, unethical and just evil, no matter what kind of asshole the patient was.)
That’s excessive by a factor of fifty for any kind of defamation.
How is it “freedom” when you’re fined several years’ worth of income for being a complete asshole when you think no one is listening?
$100K for defamation $200K malpractice & $200K in punitive damages
The law of defamation varies from state to state, but there are some generally accepted rules. If you believe you are have been “defamed,” to prove it you usually have to show there’s been a statement that is all of the following:
“Published” means that a third party heard or saw the statement – that is, someone other than the person who made the statement or the person the statement was about. “Published” doesn’t necessarily mean that the statement was printed in a book – it just needs to have been made public through television, radio, speeches, gossip, or even loud conversation.
I’m completely mystified as to how you could get that from what I wrote. But I will waste my time by clarifying my question:
What constitutes a “party” who can consent to recording? My interest is in the legal question of whether this recording, had it not been inadvertent, would run afoul of any anti-eavesdropping laws. My restaurant scenario is to point out that mere presence in the room is probably not enough to make recording someone’s conversation legal. I’m assuming that the whole question is moot in this case, because he is said to have inadvertently captured the conversation. But I’m curious about the law and am interested in hearing from anyone who knows something about these laws.
So I have no idea how the $200K punitive damages are split between the defamation and the malpractice
Well, that is just the local definition; I say it’s a painfully low threshold for a limitation on free speech. If I insult one person in the presence of a third person, there is NO WAY the courts should EVER get involved. And if they do, the fines should be in the two-to-three digit range, not in the six-digit range.
What’s the definition of “injurious”? Is that interpreted as “hurtful” or as “causing actual damage”? Defamation laws should prevent people from wrongfully damaging each other’s reputation (i.e. the opinion of many people), not about saying something hurtful about someone else to one or two other people.
So, based on my feelings on the matter - NOT based on actual Virginia law, which I don’t know at all - I’d recommend the following:
Damages awarded to the patient for defamation: $0
Punitive damages for defamation: $0
Court cost would need to be paid by the patient in this case, but then, if the law was the way I think it should be, his lawyer would have told him from the start that he’d lose.
Damages awarded for the “malpractice” of wronglymaliciously diagnosing hemorrhoids: $100 - $1000, depending on whether the victim ever believed the diagnosis or llistened to the tape first. If no one believed the diagnosis, then NO DAMAGE WAS DONE AT ALL, so $100 would already be quite generous. Additionally, of course, any costs incurred through follow-up visits to any other doctors in order to treat the alleged hemorrhoids or to verify the diagnosis. Plus any lawyer fees and court costs.
Punitive damages for the malpractice: I’m flexible on this; anything from $10,000 (first-time offenders only, and only if it’s about “harmless” things) to $200,000; or you could do without a fine and instead revoke a medical license or send the doctor to prison for a few months for willful falsification of documents.
EDIT: I did not want to obscure the fact that the “diagnosis” was not an innocent mistake.
I’m going to take a gun and shoot at you, but I’m a really bad shot. So if I miss a bunch of times, well, no damage was done to you at all, so it’s no worries.
“No damage was done” is a really, really bad way of determining how severe a punishment should be.
That’s the difference between a “punishment” and “damages awarded to the victim”, isn’t it?
Assume you plant a bomb in order to kill me. I walk past the bomb, but the bomb doesn’t explode because you forgot to connect a wire. I never find out about the bomb, but the police do. You are arrested for attempted murder, and you go to prison. You would deserve that, but I wouldn’t deserve to get a single dollar of “damages” for the hurt you failed to do to me.
