by Adam Freedman
Today’s topic: Cameras in the delivery room.
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any listener. In other words, although I am a lawyer, I’m not your lawyer. If you need legal advice, contact an attorney in your community.
A reader writes in with the happy news that his wife is expecting a baby. They’d like to videotape the delivery of the baby, but their local hospital won’t allow them to, leading him to ask “Do patients have any legal rights to record their medical procedures?”
Can Hospitals Prohibit Cameras?
Great question! The short answer is that patients generally do not have any legal right to bring cameras into an operating room, although some lawmakers have been trying to change that. In the meantime, hospitals continue to crackdown on cameras in the delivery room for their own legal reasons, which I’ll explain in a minute.
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Back to the issue.
Where Can’t You Legally Take Pictures?
What could be more important, and more personal, than the birth of a child? As the reader’s question suggests, it just seems wrong that anyone could tell you whether or not you can videotape the event. How is it that hospitals can legally prohibit videotaping?
Think about it this way. When you’re in the hospital, you’re on someone else’s property. The general rule in the US is that a property owner can prohibit photography on the premises – and that goes equally for hospitals.
You Can Take Pictures in a “Public Place”
You can, however, generally take pictures of anything visible from a public place. A “public place” includes things like a street, sidewalk, or public park, but does not include all government property. There are, for example, legal restrictions on taking pictures or videos on military bases, nuclear facilities, the US Congress, and federal courts--so don’t schedule a delivery for any of those locations if you were hoping for a souvenir video. If you’re walking down the sidewalk, feel free to take pictures of the outside of any hospital. But once you’re actually inside the hospital you have to respect its rules.
Videos Can Be Evidence in a Lawsuit
Fair enough. But why is it that so many hospitals now prohibit cameras in the delivery room? The answer--according to various reports published over the last few years--is fear of lawsuits. Here’s the problem. When babies are born with health problems, the parents sometimes sue the OB/GYN, or the hospital, or both alleging malpractice in the delivery. In these cases, the videotape becomes a piece of evidence that can be shown to juries.
Hospitals and doctors contend that it is unfair to use such videos because, to a jury of non-physicians, even a normal childbirth might look like malpractice given that birth can be a rather noisy, messy, and chaotic event.
Under the law of evidence, a judge does have the discretion to exclude evidence if he or she thinks it would unfairly influence the jury. But, as a practical matter, judges are reluctant to exclude evidence, and doctor advocates fear that the possibility of using videos will encourage frivolous lawsuits. On the other side, videotaping supporters argue that good doctors have nothing to fear from videos.
Parents Don’t Have Videotape Rights -- Yet
Legally, the only way to override the hospital’s right to ban cameras is to grant parents a superior right to videotape the delivery. At least one lawmaker has tried to establish such a right. In 2001, a Texas state legislator introduced a bill that would have required hospitals and other health care providers to allow parents to record their child’s birth with videotape or other recording device. That bill, however, stalled out in committee and does not appear to have been reintroduced. As far as I can tell, no state has actually established a parent’s right to film a baby’s delivery.
Parents Can Try to Negotiate With the Hospital
But remember, just because parents don’t have a legal right to video their child’s birth, that doesn’t mean that they can’t try to negotiate a deal with their hospital. Some hospitals still do allow cameras in the delivery room. Before the big day, parents should ask their hospital about its policy on recording births. If you don’t like their policy, you can try to work out an exception, or shop around for a different hospital, as some parents do. Sometimes a little competition can do wonders!
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