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Protecting the Rights of the Injured for More than 40 Years

Candid camera-phones

Virtually everyone carries a smartphone, which means everyone also carries with them a camera and audio recorder. We can see the power of these media tools on the news virtually every day, as fires, crimes, car accidents, arrests and more are captured on phones and then shared with the world.

The health care industry is aware of the rapid rise of personal media, too. A recent article in Medical Economics magazine asks whether doctors should allow patients to record exams and discussions. The answer is a reluctant, qualified "yes." Physicians often have little choice in the matter, the publication notes, but they should be aware that the recordings can potentially be used in medical malpractice litigation.

Regular readers of our Covington medical malpractice blog will undoubtedly recall a story we shared back in July of a trash-talking anesthesiologist who mocked and ridiculed a patient under anesthesia. Unbeknownst to the doctor, however, the patient had hit the Record button his phone before being put under. He wanted to make sure he could later listen to the doctor's post-procedure instructions without fear that the anesthesia would leave her directions unclear in his mind.

He later played the recording for a jury hearing his claims of medical malpractice and defamation. He was awarded $500,000 in the case.

Insurers read the story, too, and now urge doctors to be more professional -- and aware that derogatory banter might be recorded. Doctors are also worried about patients who ask to record examinations and conversations. The industry is unsettled by the idea that many patients simply won't ask for permission. They'll press the Record button on their phones and create digital recordings of office visit conversations, ER diagnoses, exams, explanations of test results, etc.

Of course, most substandard hospital care and physician negligence is never recorded on anyone's phone. Instead, evidence of medical malpractice must be uncovered by a skilled attorney examining medical records, test results, hospital documents, depositions and testimony. It's not a simple, easy or quick process, but when undertaken by an experienced Kentucky lawyer, it's the process by which those responsible for doing harm are held accountable.

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