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Seeing Is Believing
Hospital surveillance video may provide critical evidence of medical negligence that jurors can see for themselves.
January 2023A picture is worth a thousand words, right? Then, isn’t it even more compelling to show a video of what happened in your client’s case? Plaintiff lawyers know the power of surveillance video in car wreck and slip-and-fall cases, but I’ve found it also can be compelling in medical negligence cases.
When jurors see what happened to a patient, they become believers. They can see that a doctor was distracted, paid scant attention to a patient, and did not conduct even the most basic physical exam. The course of your next medical negligence case could be changed by introducing surveillance video.
A Case Study
A recent case I handled involved a man who arrived at the emergency department complaining of the sudden onset of severe chest pain.1 Following a cursory triage assessment, he was placed in a private room. Twenty-three minutes later, he was discovered alone, unresponsive, and in cardiac arrest.
The patient’s wife, individually and on behalf of his estate, brought claims for medical negligence and wrongful death. The plaintiff alleged that the man should not have been left alone and unmonitored, since this deprived him of the opportunity for medical interventions such as medication and defibrillation. The trial hinged on the care and treatment (or lack thereof) that was provided by the nurses and physician following the man’s arrival at the hospital.
After the patient’s death, surveillance video was obtained from the hospital. The hospital had 1,100 surveillance cameras on its campus that were running continuously, 22 of which were in the emergency department. Video recordings during the patient’s treatment window included multiple views of him throughout the emergency department. The surveillance video showed the man walking in the hallways, sitting and moving around in the waiting room, and the 5-minute triage assessment. Using the surveillance video, we visually recreated what happened to this patient, which helped prove key points of the case at trial.
Proving a physical exam was not conducted. The defendants claimed the emergency medicine physician conducted a physical examination of the patient during the triage assessment, including an examination of his lungs and heart. The surveillance video showed a 5-minute triage assessment from different angles, and it was clear that the doctor and nurse failed to conduct even the most basic physical examination. The surveillance video contradicted the testimony of the emergency medicine physician that she conducted a physical examination of the patient’s chest and back. It also contradicted the medical records that revealed a normal chest and respiratory examination.
After the surveillance video of the triage assessment was presented at trial, the defendants’ expert witnesses conceded that a physical examination was not conducted. Here is an excerpt of one expert’s testimony:
Q. You would agree that the ER doctor never laid a hand on [the patient]?
A. Yes.
Q. No one listened to his heart?
A. Yes.
Q. And no one listened to his lungs?
A. Yes.
During direct examination of one of the plaintiff’s expert witnesses, we used the surveillance video to describe to jurors the inaccuracies in the emergency medicine physician’s testimony:
Q. [P]rior to your testimony you observed a surveillance video of the triage assessment, is that correct?
A. Yes.
Q. What observations, if any, did you make during that video?
A. The main observation was a discrepancy because the physical examination noted sound to the heart and the lungs, which could only be attained by placing a stethoscope on the front, listening to the heart, or the back, listening to the lungs. And the surveillance video clearly shows that the doctor never touched the patient with a stethoscope ever.
Proving that the patient was in acute distress and pain. The hospital claimed that the patient was not in acute distress and appeared fine during his triage assessment. But the surveillance video showed the patient clutching his chest while walking in the hallways in the emergency department. While waiting in the registration area, the patient was hunched over, removed his sweater, and wiped sweat from his forehead. He repeatedly pointed to his chest during the triage assessment.
The plaintiff’s expert witnesses viewed the surveillance video before their trial testimony. The jury could appreciate that the plaintiff’s experts had seen the video evidence and were speaking authoritatively about what they had seen. Here is an excerpt of one witness’s testimony:
Q. You mentioned that there was a point in the surveillance video where [the patient] was pointing to his chest. What is the significance, if any, of that?
A. It’s certainly concerning that he’s pointing right at . . . one point right to the middle of his chest. He made that gesture there, and it’s clear that this isn’t pain in his stomach or his back. He’s putting his hand right on his chest.
Q. [W]as there a portion of the surveillance video in the middle part that showed [the patient]?
A. Yes.
Q. Did you observe that portion of the surveillance video?
A. Yes.
Q. What observations, if any, did you make, doctor?
A. What I saw in the video was that he was walking around the ER, he was getting up from his seat, he was walking, touching his chest many, many times. At least 10 times I saw him touch his chest.2
Proving the hospital’s expert witnesses were not prepared. The defendants’ expert witnesses did not watch the surveillance video before their testimony. During cross-examination, they claimed it was unnecessary to view the surveillance video. But the surveillance video was a critical piece of evidence that was ignored by the hospital’s expert witnesses. By failing to view the surveillance video, they appeared unprepared to the jurors:
Q. As part of your evaluation in this case, were you aware that there was surveillance video showing [the patient]?
A. I read about them, yes.
Q. And are you aware that the surveillance video showed [the patient] in parts of the emergency room?
A. Yes.
Q. Are you also aware that the surveillance video shows the triage assessment of [the patient]?
A. Yes.
Q. Did you review any of the surveillance video?
A. No.
Q. In evaluating this case, wasn’t it important to see the evaluation that was done of [the patient] in triage?
A. No.
Q. Wasn’t it important for you to see how [the patient] appeared at the time of the triage assessment?
A. Not based on any information or data I was able to find with all the reviews and all the different sort of vantage points [of the surveillance video].
Q. You would agree with me that a picture is worth a thousand words, wouldn’t you?
A. Not always.
Proving that the patient’s privacy rights were not important to the hospital. The hospital claimed it put the patient into a private room to protect his privacy rights. But the surveillance video showed strangers walking back and forth through the triage area during the assessment. Rather than putting up a curtain to protect the patient’s privacy, the hospital staff appeared indifferent to his privacy. The surveillance video contradicted the defendants’ claim that they were concerned for the patient’s privacy rights.
During cross-examination, the defendants’ expert witnesses conceded that there was little concern for the patient’s privacy rights during the triage assessment:
Q. In the surveillance video of the triage assessment, are you aware that the triage was done in an area where there were strangers walking back and forth in front of the triage area?
A. Yes, I did read that.
Q. And were you aware from the surveillance video that when [the patient] was seated in the chair during triage that his triage assessment could be viewed by strangers who were walking back and forth in that area?
A. Yes.
Q. And if there was any concern for [the patient’s] privacy, would you agree with me that a private curtain could be moved over and placed to block the view of strangers?
A. I would assume that would be possible, yes.
Steps for Obtaining Hospital Surveillance Video
This case illustrates how surveillance video can be an impactful way to show jurors how a hospital and health care providers failed a patient. Here are four basic steps to get started.
Step 1: Send a preservation letter. As soon as you are retained, send a preservation letter to the hospital’s risk management department and the legal department via overnight certified mail, return receipt requested. You might even send a process server to hand-deliver the preservation letter to the hospital’s risk management department so the defendant cannot claim that it did not receive the letter or that it was sent to the wrong person or address. The affidavit of service should identify the recipient by name and physical appearance as well as the date and time it was served so there can be no question that the preservation letter was received.
If you do not act quickly, the hospital will claim that the surveillance video was overwritten and lost (it is usually overwritten within 30 days)—so time is of the essence. If you are retained months after the plaintiff’s treatment at the hospital, it is likely that the surveillance video will be overwritten. But some hospitals preserve surveillance video for longer than 30 days, so there is no harm in sending a preservation letter anyway.
In your preservation letter, specify the precise locations in the hospital where the patient was treated, as well as the date and time the patient was there and may have been in view of cameras. It is not necessary to identify the format of the video in the preservation letter as surveillance video should be kept in a digital format on a closed circuit, as opposed to in the cloud.
After filing the lawsuit, serve a discovery demand for a schematic diagram showing the location of every surveillance camera in the hospital.
Step 2: Visit the site. After filing the lawsuit, serve a discovery demand for a schematic diagram showing the location of every surveillance camera within the interior and exterior of the hospital. Next, serve a notice to conduct an inspection of the emergency department.
Retain a hospital surveillance expert, and bring that expert to the site inspection. This expert should have a background in hospital security (20+ years) and be intimately familiar with the practice of preserving and maintaining surveillance video as well as electronic medical records. Many hospital safety directors know very little about surveillance video and delegate the technical work to another member of the hospital’s risk management department.
During the inspection, verify—with the help of your expert—the location of the surveillance cameras relative to the schematic diagram. Make sure the hospital’s diagram is accurate and that it is not hiding any surveillance cameras. If you prove that the hospital is hiding surveillance video or did not timely preserve the video from cameras missing from its diagram, you can serve a motion for negligent spoliation of evidence.
Demand internal email communications between the hospital’s surveillance expert and the risk management department during discovery.
Step 3: Obtain internal communications. The hospital’s risk management department typically will have a video surveillance expert whose job is to preserve the video. After receiving your preservation letter, the expert will download the surveillance video to an external hard drive and send it to the risk management department. Most hospitals will also have outside vendors whose job is to maintain the surveillance camera system and ensure that cameras are operational.
There will be internal email communications between the hospital’s surveillance expert and the risk management department—make sure to demand this during discovery. The emails may help you establish that the hospital failed to timely preserve the surveillance video or ignored your preservation letter. These email communications may even form the basis for an eventual motion for negligent spoliation of evidence against the defendants.3
Step 4: Use the surveillance video in depositions. Once you have the surveillance video, prepare to depose the nurses and physicians involved in your client’s care. At the depositions, just as in the case example earlier, lock health care providers into a position about the treatment they rendered and then refute their claims using the surveillance video.
Next, depose the hospital’s video surveillance expert. Bring your hospital security expert to the deposition to guide you. Here are a few questions to consider:
- How many cameras are in the emergency department?
- What camera system do you use?
- Do you have a cloud-based system for archiving video?
- How long before the surveillance video is overwritten?
- Is the surveillance video in the emergency department on one server?
- How long is the video stored on the server?
- Does the hospital have a policy for preserving surveillance video?
- What is the software for the surveillance video system?
- When was the last date and time that you had video from the surveillance cameras?
By the end of the deposition, you might be able to establish that the hospital ignored your preservation letter and critical surveillance video was overwritten. This could give you the evidence you need for a motion for negligent spoliation of evidence.
Surveillance video can be powerful evidence to prove critical elements of your medical negligence case. It can be vital in direct and cross-examination of expert witnesses and in closing argument—use it to best respresent your client.
John H. Fisher is the founder of John H. Fisher, P.C., in Kingston N.Y., and can be reached at jfisher@fishermalpracticelaw.com. The author thanks the firm’s summer associate, Joe Naeem, for his contributions to this article.
Notes
- Melkonian v. Albany Med. Ctr., No. 908059-19 (N.Y. Sup. Ct. Albany Cnty.).
- Clutching the chest is a classic sign of cardiac distress known as Levine’s sign.
- For more on spoliation, see Timothy Lange & Jordan Jones, The Path Forward When ESI Is Lost, Trial, Oct. 2022, at 18; Allegra C. Carpenter, Spoliation in the Digital Age, Trial, Jan. 2019, at 16.
