Benefits Of Photo And Video Evidence
When available, photo and video evidence can be used to quickly dismiss an inaccurate theory of events by providing more objective, verifiable evidence of what happened. A witness’s account of the events from years ago can be limited by inaccurate memory recall. Documentation in the patient’s chart could be a result of subjective observation and interpretation of the events at the time. Like MRI imaging and electronic fetal heart rate strips, surgical photos and videos can be offered to medical-legal experts for an independent opinion, which may reveal details that are critical to advancing the case. Photos and videos also contain metadata which can serve as time-stamped proof against fabrication of the timeline.
According to the Practice Standard of the Board of the College of Physicians and Surgeons of British Columbia (CPSBC),10 the current position of the CPSBC on photographic, video and audio recording of patients is as follows:
Medical and surgical procedures involving patients may be recorded for a variety of purposes. The recording may be made as part of the patient’s care to assist in the assessment, investigation, and treatment, in which case the recording forms part of the patient’s medical record and must be treated as such.… Alternatively, the recording may be made for a secondary purpose such as teaching, training, or research resulting in the need for additional safeguards. The collection of personal information for these purposes is authorized under section 11(a) of the Personal Information Protection Act (PIPA). In all of these circumstances, the informed consent of the patient must always be obtained.
In reality, patients continue to face barriers in obtaining photos or video recordings of their own surgery. Canadian hospitals and many surgeons do not routinely video record surgeries for any reason, so surgical video recordings rarely form a part of the patient’s medical record.11 In Szeto v. Kives, the robotic laparoscopy technology used by the defendant permitted her to record the surgery. However, it was not the defendant’s practice at the time to record her surgeries and the footage was unavailable to the plaintiff to be tendered as evidence in trial. Even if photos or video recordings existed at one point, there is always a risk that they are disposed of later or are lost, especially when the records are requested years after the surgery. The result is that patients are afforded limited sources of evidence and will need to rely mostly on written documentation contained in medical records and witness testimony to paint their story.
Conclusion
With the lack of routine video recording of surgeries, intra-operative surgical negligence cases will continue to be an evidentiary challenge. Szeto v. Kives offers a roadmap on overcoming gaps in the medical record by building a coherent theory corroborated by visual evidence and expert opinion. When investigating a case, counsel should take extra care in verifying the existence of photo or video evidence (e.g. OR Black Box) and preserving any critical evidence to be tendered at trial.
- Szeto v. Kives, 2024 ONSC 7258 [Szeto].
- Armstrong v. Ward, 2021 SCC 1.
- Armstrong v. Royal Victoria Hospital, 2019 ONCA 963.
- Szeto, supra note 1 at para 28.
- St-Jean v. Mercier, 2002 SCC 15, [2002] 1 SCR 491 at para 53.
- Szeto, supra note 1 at para 27.
- Ibid at para 101.
- Gilmore v. Love, 2023 BCSC 1380 at para 62.
- Szeto, supra note 1at paras 116-117.
- College of Physicians and Surgeons of British Columbia, “Practice Standard: Photographic, Video and Audio Recording of Patients” (7 October 2024), online: <https://www.cpsbc.ca/files/pdf/PSG-Photographic-Video-Audio-Recording.pdf>.
- Alison Motluk, “Cameras in the OR: educational asset or legal liability?” (2019) 191:36 CMAJ E1012.
