Videotapes of Ultrasounds and Deliveries:
Home Videos or Malpractice Evidence?

By Melanie R. Margolis

A pregnant patient went to see her Houston-area obstetrician for a routine ultrasound recently. As she had done during her previous pregnancy two years earlier, she brought along a videotape to record the ultrasound. Modern technology is truly a miracle. Not only does the technology exist to look at the developing fetus in the womb, allowing early detection of certain birth defects, but this first glimpse of one's baby can be recorded on videotape for posterity.

During her previous pregnancy, the obstetrician had encouraged her to bring a videotape along to capture the first peek at the developing fetus. She thought the child might find the tape fascinating down the road, so the ultrasound and several subsequent ultrasounds were recorded on videotape.

This time, however, when the patient pulled out the videotape, the obstetrician informed her that the video recorder was broken and that he had been advised by his malpractice insurance carrier not to have it repaired. The obstetrician noted that according to the insurance company, videotapes of ultrasounds were being used as evidence in malpractice cases against physicians, and in addition, some were being altered to essentially manufacture evidence against physicians.

A similar problem has cropped up in hospital delivery rooms. Some parents want to videotape the birth of their baby. Recently, a couple even chose to show the live video of the birth of their baby in a web broadcast over the Internet. Videotapes of deliveries have also become a target of physician and hospital malpractice insurance carriers. They are discouraging physicians and hospitals from allowing parents to videotape deliveries because the tapes can be used as malpractice evidence in the event of a problem in the delivery room.

At least one state legislature has determined that this problem justified a legislative response. The Oklahoma Insurance Code was revised, effective November 1, 1997, to provide that:

[n]o insurer which writes physicians' or hospitals' professional liability insurance shall…by any means, attempt to restrict, control, or otherwise interfere with any agreement between a patient and a hospital or between a patient and a physician regarding recording of a birth or ultrasound on video tape or disc, or otherwise. Furthermore, the statute provides that in the event of a violation of this provision, the Insurance Commissioner shall revoke or refuse to approve or renew an insurer's certificate of authority.

The insurers should bear in mind that such tapes can also vindicate a physician. In any event, it will no doubt take legislation in the other states or on the federal level to stop this further example of interference by insurers in the physician-patient relationship. With regard to alteration of tapes, it is a little hard to believe that videotapes are being altered in significant numbers and offered as evidence in court. In the instance that manipulation of evidence is a problem, it should be dealt with under laws governing the alteration and falsification of evidence, not by a blanket prohibition on physicians and patients by malpractice insurers.

08/17/98