Anne van Dalen

1 Legal perspectives on black box recording devices in the operating environment I 41 In the case of a serious adverse event (a critical unexpected incident with the outcome severe injury or death) resulting in a lawsuit, a judge may decide to breach the legal protection of the healthcare professional by asking the institute for the video MDR data. However, reported cases indicate that in most jurisdictions judges are aware of the importance of protecting information that is collected for the sole purpose of quality improvement, and will breach this protection only if vital information is lacking in the medical record and cannot be retrieved in any other way. 7,44,68,69 However, even if video data have to be provided, various court cases have demonstrated that these recordings actually predominantly lend legal support specifically to the healthcare professional or surgeon. 43,70–76 An American medical malpractice claim showed that a surgeon could indeed prove, with the help of reviewing the videotape of the laparoscopic cholecystectomy in court, that the standard of care was not breached. 72 In a similar case, a Dutch urologist proved that he did not act negligently during the nephrectomy by showing the video recording of the procedure. 71 Hoschtitzky and colleagues (London, UK) 70 demonstrated in their care report that the video recording provided supportive evidence of good practice and an open attitude to patient safety. With the help of the video recording, they were able to document all the surgical steps accurately and it allowed them to state confidently that no missing equipment was inadvertently left behind in the patient. On the other hand, in January 2016, a Dutch surgeon had a medical malpractice suit filed against him after a complicated cholecystectomy. He was unable to prove that he obtained the critical view of safety because he could not show the judge the video recordings. The surgeon was hence found guilty. 73 Besides that, when privileged information is used in court without justification, both American and European laws contain provisions that have consequences in favour of the unjustly accused. 37