(Part I. Part II to appear in February 1998)

Informal chats at telemedicine conferences and phone conversations with telemedicine site personnel frequently raise questions regarding the advisability of videotaping telemedical consultations. Often the question is whether taping should be undertaken as a routine practice as opposed to the recording of a special event. Serious reflection question reveals potential effects in many areas: personnel; costs; provider acceptance; patient acquiescence; tape storage and retrieval; and liability.

The following discussion does not take into consideration special contractual obligations or medical education endeavors which may clearly invoke the necessity for taping. Telemedicine sites with contracts with various parties, such as prisons, may have provisions which require taping. Also, the recording of videoconferences may be extremely desirable for medical education purposes. The analysis below is aimed at those telemedicine sites for which taping is optional and who might feel that elements of legal liability could tip the decision one way or another.

In general, there are two competing effects relative to video recording of telemedical consults. The first is that a video may document exactly what was done and serve as authentication that the applicable standard of care was met. The second is that such a tape may be turned into an evidentiary "smoking gun" to prove negligence. Further, some are concerned that even a good video may leave certain questions unanswered, depending on overall video quality, camera angle, distance from the subject matter, etc. In these situations there is the additional worry that uncertainties or ambiguities may be construed against the provider.

The decision of whether to tape may also engender significant non-legal considerations. Anecdotal evidence suggests some telemedical providers may have a strong preference in one direction or the other. Where one physician may take solace in the fact the encounter is being recorded and, hence, fully documented, another provider may be reluctant to have the consult taped out of concern over his/her appearance and communication style. There have reportedly been instances where physicians have expressed worry over the adequacy of their explanations to patients when the visit is being video-recorded. Another consideration is the cost of camera equipment, film, and operating personnel. Also, after the recording is complete, issues relating to storage and retention should be addressed. Depending upon the utilization of the particular telemedicine site, the space necessary for video-cassette storage may be substantial. The time and effort in cataloging the cassettes and establishing an appropriate retrieval system will also incur expense. Questions can then arise regarding the length of retention and when, if ever, the cassettes should be destroyed or recycled. Determinations such as this should be made after careful analysis of relevant state and federal medical records laws, state-specific telemedicine laws, and institutional policies and procedures.

The patient’s perspective also needs to be examined. Video-recording typically triggers the need for patient consent, which should be documented in writing. It may also make a difference to the patient whether video-recording is done routinely or whether the particular encounter was specially selected by the provider. If the latter, the provider will likely need to explain why such a determination has been made, and to hopefully do so without alarming the patient.

Analogies may be drawn from judicial decisions involving different factual settings. For instance, video evidence has been used by plaintiffs to show the "day-in-the-life" status of an injured party, by law enforcement officials using on-board cameras in their patrol vehicles, and by various parties in medical malpractice actions to demonstrate how a particular procedure is done. These issues, and others, will be addressed further in the next LegaLookÆ.

This article provides information only, and is not intended to replace legal counsel or advice.