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How to Win Your Next Malpractice Case using Surveillance Video

A picture is worth a thousand words, right? Then, isn’t it even more compelling to show a video of what happened? Seeing is believing.  Plaintiff’s lawyers know the power of surveillance video for car wrecks and slip and falls cases, but what about medical malpractice cases? It’s time to re-think this.

Surveillance video has the power to make or break your next malpractice case. When the jurors see what happened to a patient, they become believers. The jurors can see that the doctor was distracted, paid scant attention to their patient and did not conduct even the most basic physical exam. This is powerful stuff.  The course of your next malpractice trial could be changed by surveillance video. Not a believer yet?  Let’s examine the facts and you can be the judge.

The Magic of Surveillance Video

This medical malpractice/wrongful death case involved the death of acting Supreme Court Justice Michael Melkonian in the emergency department of Albany Medical Center in Albany, NY.  Justice Michael Melkonian arrived at the emergency department with the complaint of the sudden onset of severe chest pain. 

Following a cursory triage assessment, Justice Melkonian was placed in private room and he was discovered 23 minutes later in cardiac arrest.  The essence of the claims in the medical malpractice/wrongful death case was that Justice Melkonian should not have been left alone and unmonitored in a private room. The trial hinged on the care and treatment (or lack of treatment) that was provided by the nurses and physician over a period of 33 minutes.

After Justice Melkonian’s death, surveillance video was obtained from the hospital. It was discovered that the hospital had 1,100 surveillance videos on their campus, 22 surveillance cameras in the emergency department, 44 hours of video recording from the emergency department during Justice Melkonian’s treatment and multiple views of Justice Melkonian throughout the emergency department.  The surveillance cameras run 24/7.  The surveillance video showed Justice Melkonian walking in the hallways, sitting and moving around in the waiting room and the 5-minute triage assessment.  Plaintiff’s counsel can recreate visually exactly what happened to the patient.

The trial in Supreme Court, Albany County, namely, Melkonian v. Albany Medical Center, the surveillance video helped prove key points of the plaintiff’s case.  Surveillance video was a key factor in the 4 turning points of the trial.

Turning Point #1

Proving a Physical Exam was Not Conducted

Defendants’ Claim: 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 Reality: The surveillance video showed a 5-minute triage assessment from different angles. During the triage assessment, the doctor and nurse failed to conduct even the most basic physical examination. Ouch!

During the trial, the surveillance video of the triage assessment was viewed by the jury and defendants’ expert witnesses conceded that a physical examination was not conducted.

Q. You would agree that the ER doctor never laid a hand on Judge Melkonian?

A. Yes.

Q. And during the time before his cardiac arrest there was no aspirin given to Judge Melkonian?

A. Yes.

Q. No nitroglycerin?

A. Yes.

Q. No beta blocker?

A. Yes.

Q. No one listened to his heart?

A. Yes.

Q. And no one listened to his lungs?

A. Yes. [no physical exam was conducted]

_______________________________

During the direct examination, the plaintiff’s expert witnesses relied upon the surveillance video to show that a physical examination of the patient was not conducted.

Q. And prior 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 video surveillance clearly shows that the doctor never touched the patient with a stethoscope ever. [this was not good for the hospital]

The Impact of Surveillance Video: The surveillance video contradicted the testimony of the emergency medicine physician that she conducted a physical examination of the patient’s chest and back.  The surveillance video also contradicted the medical records that revealed a normal chest and respiratory examination. (can you say “fabrication of records”?)

Turning Point #2

Proving that the Patient was in Acute Distress and Pain

Defendants’ Claim: The hospital claimed that the patient was in no acute distress and appeared fine during his triage assessment.

The Reality: The surveillance video showed the patient was 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. The patient repeatedly pointed to his chest during the triage assessment.

Plaintiff’s expert witnesses viewed the surveillance video before their trial testimony. The jury could appreciate that the plaintiff’s experts had seen the surveillance evidence and were speaking authoritatively about what they had seen.

Q. You mentioned that there was a point in the surveillance video where Judge Melkonian 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. At various points in the surveillance video, the photos that we have before you, was there a portion of the surveillance video in the middle part that showed Judge Melkonian?

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. [clutching the chest is a classic sign of cardiac distress known as the Levine’s Sign]

The Impact of Surveillance Video: The surveillance video contradicted the defendants’ claim that the patient appeared fine and in no acute distress.

Turning Point #3

Proving that the Patient’s Privacy Rights were not Important to the Hospital

Defendants’ Claim: The hospital claimed that they put the patient into a private room to protect his privacy rights.

The Reality: The surveillance video showed strangers were walking back and forth through the triage area during the triage assessment. Rather than putting up a curtain to protect the patient’s privacy, the hospital staff appeared indifferent to his privacy.

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 Judge Melkonian 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 Judge Melkonian'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.

Q. And would it be fair to say, based upon the surveillance video that you have not seen, that there was no concern for Judge Melkonian's privacy during the five-minute triage assessment?

A. I don't know -- I can't speak to the feelings of the

providers at the time. I think they prioritize doing that initial assessment and ruling out the level -- you know, basically ESI 1 and 2 as a higher priority.

Q. How can you say whether there was any concern for Judge Melkonian's privacy during triage if you've never seen the surveillance video?

A. Because I'm not telepathic and I'm not in their head. I don't know what they were thinking and the judgment they kind of applied at that time. At some point your worry about confidentiality gets trumped by what is potentially life threatening. [Exactly! Patient privacy is not a concern when the patient has a life-threatening medical condition.]

The Impact of Surveillance Video: The surveillance video contradicted the defendants’ claim that they were concerned for the patient’s privacy rights.

 Turning Point #4

Proving the Hospital’s Expert Witnesses were Not Prepared

Defendants’ Claim: Defendants’ expert witnesses did not watch the surveillance video before their testimony at trial.  During cross-examination, defendants’ experts claimed it was unnecessary to view the surveillance video.

The Reality: By failing to view the surveillance video, the hospital’s expert witnesses appeared unprepared.

Q. As part of your evaluation in this case, were you aware that there was surveillance video showing Judge Melkonian?

A. I read about them, yes.

Q. And are you aware that the surveillance video showed Judge Melkonian in parts of the emergency room?

A. Yes.

Q. Are you also aware that the surveillance video shows the triage assessment of Judge Melkonian?

A. Yes.

Q. Did you review any of the surveillance video?

A. No. [Say that again?]

Q. In evaluating this case wasn't it important to see the evaluation that was done of Judge Melkonian in triage?

A. No. [Really?]

Q. Wasn't it important for you to see how Judge Melkonian 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. [Now, we’re having fun.]

Q. You would agree with me that a picture is worth a thousand words, wouldn't you?

A. Not always. [Come again?]
Q. I'm sorry, what? [just for emphasis]
A. Not always. [huh? Come again.]
Q. I'm sorry, I didn't hear that. [it should not be legal to have this much fun.]
A. Not always. [Long, silent pause to let this sink in.]

_______________________

Q. You did not see any of the surveillance video that shows Judge Melkonian in the waiting area just outside triage, correct?

A. No, I did not.

Q. In fact, you didn't see any of the surveillance video that shows Judge Melkonian walking the hallways of the emergency department on that day, true?

A. That's true.

Q. Is it your testimony before us today that all of that surveillance video is not useful to you in rendering an opinion before us in this courtroom?

A. I don't believe there's anything that would change my opinion.

Q. But you wouldn't be able to know that without first seeing the surveillance video, wouldn't you agree?

A. I can derive it from the number of people that did see it and what they reported back. And I'll accept the things that they noted on that video as being true.

The Impact of Surveillance Video: The surveillance video was a critical piece of evidence that was ignored by the hospital’s expert witnesses.  This made the defendants’ experts appear unprepared.

How to Get the Hospital’s Surveillance Video in 4 Simple Steps

There are 4 simple steps to preserving and retrieving the surveillance video from a hospital.

Step #1: Preserving the Surveillance Video

As soon as you are retained, you should IMMEDIATELY send a preservation letter to the hospital via overnight mail, return receipt requested. If you do not act quick, the hospital will claim that the surveillance video was overwritten and lost.  Time is of the essence.

Your preservation letter should specify the precise locations in the hospital as well as the date and time of the surveillance video.

The following items must be preserved for potential litigation:

  • Any and all video and/or audio recordings of the emergency department visit of [insert name of patient], including the registration and/or waiting area and triage area for new patients, between 3:30 p.m. and 5:30 p.m. EDT on October 17, 2019;
  • Any and all surveillance video/security footage of the hallways and staff work area outside of triage room 3 in the emergency department of [insert name of patient] between 3:30 p.m. and 5:30 p.m. EDT on October 17, 2019;
  • Electronic medical records, including metadata, from the emergency department visit of [insert name of patient] on October 17, 2019.

The above items may be critically important for purposes of litigation and should be IMMEDIATELY PRESERVED and should not be discarded or destroyed. If any of the above evidence exists, and you fail to maintain same until the disposition of this claim, it will be assumed that you have intentionally destroyed and/or disposed of evidence. 

You are not permitted to decide what evidence our client would like to review for this matter.  Accordingly, failing to preserve this evidence will lead to an adverse inference against the hospital in this matter.

Just to be safe, you might send a process server to serve the preservation letter on the risk management department of the hospital. The affidavit of service will identify the recipient by name and physical appearance, so there can be no question of the date and time that the preservation letter was received.

Step #2Discovering the Surveillance Video

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. Bring a hospital surveillance expert to the site inspection. At the site inspection, verify the location of the surveillance cameras relative to the schematic diagram.  Make sure the hospital’s diagram is accurate and they are not hiding any surveillance cameras.

Once you possess the surveillance video, watch every second of the surveillance video and trace the whereabouts of the patient from room to room. You will be able to trace every movement of the patient, including the triage assessment and registration.

Step #3Discovering the Hospital’s Internal Communications about the Surveillance Video

The hospital’s risk management will have a video surveillance expert whose job is to safeguard and download surveillance video. The surveillance expert will download the surveillance video to an external hard drive and send it to the risk management department.

There will be internal email communication between the surveillance expert and risk management (make sure you demand the internal email communication).  With this email, you can establish that the hospital was failed to timely preserve the surveillance video or ignored your preservation letter.  This will be a set up for a motion for negligent spoliation of evidence.

You will discover that the hospital retrieves surveillance video on an almost daily basis.  Some surveillance cameras provide 180-degree and 360-degree panoramic views and cameras in the parking lot and exterior of the hospital can pan, tilt and zoom (PTZ). PTZ cameras scan for different views and detect motion.  Each camera should have a number, e.g., “CCTV C20 Location”.

Step #4Deposing the Hospital’s Video Expert about the Surveillance Video

With the surveillance video, you will be ready to conduct meaningful depositions of the nurses and physicians. At the depositions, lock the nurses and doctors into a position about the treatment they rendered and then refute their claims using the surveillance video. This is where the fun begins!

Next, depose the hospital’s video surveillance expert. You might ask the expert:

  • How many cameras on the campus?
  • How many cameras are there in the emergency department?
  • What camera system do you use?
  • Did you check on a laptop to determine whether the video is still available?
  • Do you have a cloud-based system for archiving video?
  • When did you look at the video?
  • Does a request for video get logged?
  • How long before the video is overwritten?
  • How long is the video stored in the server?
  • Is there a chain of custody when you give the external hard drive to risk management?
  • Are all of the cameras in the emergency department on one server?
  • Does the hospital have a policy for preserving surveillance video?
  • Do you record audio?
  • What is the software for the video system?
  • When was the last date and time that you had video from that camera?

Bring your hospital security expert to the deposition to guide you through the deposition.  By the end of the deposition, you might establish that the hospital ignored your preservation letter, critical video was overwritten and you have a compelling motion for negligent spoliation of evidence.

If a Picture is Worth a Thousand Words, How Much More is Video Worth?

Surveillance video will be the cornerstone of your case. You will prove critical elements of your case using the surveillance video. The surveillance video will be a crucial part of your direct and cross examination of expert witnesses and your closing argument.  You could very well win or lose your case based upon the surveillance video.

Still not convinced? Let’s give the final words to the plaintiff’s counsel in the closing argument in Melkonian v. Albany Medical Center:

“A picture is worth a thousand words. And didn’t we have pictures in this case?  We had something far better than pictures.  We had a video showing what happened to Judge Melkonian. We had a video showing him sort of hunched over, waiting in the lobby room.”

“And then a video that shows the triage completely.  And what does it show? That there’s total strangers walking back and forth from where he is during triage. Were they concerned about privacy then? A picture is worth a thousand words.”

Note of Gratitude:  Thank you for our exceptional trial team for making the $7,600,000 verdict in Melkonian v. Albany Medical Center a reality.   William E. McCarthy, Esq., Danielle Ascani and Joe Naeem were indispensable to our success. Our summer associate, Joe Naeem, co-authored this article and I am grateful for his work.

Leave a comment below telling me what surprised, inspired or taught you the most (I personally respond to every comment). And if you disagree with my take on running a personal injury law firm, or have a specific, actionable tip, I’d love to hear from you.
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