WILL THE UNITED STATES FOLLOW IN SOUTH KOREA’S FOOTSTEPS? SURVEILLANCE CAMERAS IN OPERATION ROOMS

Author: Rachel Blumberg, Associate Editor

Healthcare describes the various systems humans rely on to maintain personal health through treatment or prevention of illness, injury, disease, and other physical or mental impairments.[i] According to the 2021 edition of the CEOWorld Magazine’s Health Care Index, South Korea is rated number one in best heath care with an overall health care index rating of 78.72 out of 100; whereas, the United States overall health care index is 45.62 out of 100.[ii] These results suggest the United States should consider looking at other country practices to achieve a better health care system. South Korea has become one of the first countries to require cameras in all operating rooms that handle patients under general anesthesia.[iii] If a patient requests that a surgery be filmed, the hospital must comply. Finally, the law states that doctors can refuse if a delay in the operation would put the patient’s life at risk or if the filming would significantly impede residents’ training.[iv]

 A Wisconsin bill called the Julie Ayer Rubenzer Law—named after a patient who died due to a medical error—proposed a requirement for cameras to be installed in every operating room in Wisconsin.[v]  Other states have proposed similar bills but were vetoed as it fostered distrust.[vi] Currently, no US state requires cameras in operation rooms for the purpose of medical malpractice claims.[vii] With medical malpractice being the third leading cause of death in the United States, America may want to consider South Korea’s practices and follow in their footsteps.[viii]

South Korea’s implementation of surveillance in operation rooms stemmed from years of complaints of “ghost surgeries.”[ix] A ghost surgery is defined as “...when a physician assistant, a surgical assistant, an RN first assistant, a resident, or another surgeon assists on or performs an operative or other invasive procedure without the patient’s knowledge, regardless of whether the surgeon who obtained the consent was scrubbed in or not.”[x] South Korea laws treat ghost surgeries as practicing medicine without a license, whereas the United States laws treat ghost surgeries as a battery.[xi] According to research collected by a Dallas law firm, medical records showed that out of 161 surgeries performed—totally over 200 hours of surgery—eighty three percent of the time, the attending physician-surgeon was not present in the operation room.[xii]  However, a surgeon would only be held liable for performing a ghost surgery if the patient knew that a ghost surgery was performed. As a result, patients are left with no recourse since these ghost surgeries occur unbeknownst to patients due to the anesthesia.[xiii]

Toronto surgeon Teodor P. Grantcharov designed a “black box” that synchronizes a patient’s data with the video and audio recordings in the operating room in the same way athletes and airplane pilots review video of their performance.[xiv] Grantcharov’s design is not used for medical malpractice claims but rather for surgeons to learn and improve their performance.[xv] In a pilot test of the black box device in fifty-four procedures, thirty-eight showed adverse events and seventy-five percent of the errors were unnoticed by the surgeons.[xvi] Yet with these astounding results, the United States have not made efforts to minimize malpractice claims.[xvii]

Mandating surveillance cameras in operation rooms that handle patients under general anesthesia will allow patients to use the footage in medical malpractice claims, criminal investigations, prosecutions, trials, medical disputes, or mediations.[xviii] A study performed by Patient Safety America estimates that at least 400,000 people die annually of preventable medical errors in hospitals and many of these cases could not be litigated since there was no documentation of the surgery.[xix] The use of surveillance cameras would be an evidentiary piece of documentation for a medical malpractice suit—increasing opportunities for plaintiffs to recover and decreasing the ambiguity of what actually occurred in the surgery. For example, the footage could prove a medical professional was negligent, could prove that no mistakes occurred during an operation, or could show a ghost surgery occurred.[xx] Additionally, if an error occurred during the operation, a surgeon would be able to pinpoint what, when, and where the error occurred during the operation and take necessary steps to improve future outcomes.[xxi]  

Adversaries to surveillance in operation rooms believe it may undermine trust between the patient and surgeon, hurt morale, violate patient privacy, and discourage physicians from taking risks to save lives.[xxii] Additionally, the cost of installing and maintaining the cameras may be passed off to patients through increases in medical bills or insurance premiums. Further, the footage may not be useful as the camera angle may not catch the error if something/someone is blocking the site.[xxiii]

At least 4,000 surgical errors occur in the United States and ten percent of all deaths in the United States are the result of medical error.[xxiv]  The United States should consider mandating the use of video surveillance inside operation rooms. Deciding whether the United States should implement video surveillance in operating rooms is a tough decision to be made by Congress. It will require the balancing of patients, physicians, and hospital administrations’ interests, and relying on best practices from other countries who have successfully adopted this practice.[xxv]

According to South Korean hospital director, Dr. Choi Sang-Wook, the implementation of the surveillance cameras “have helped win over the community’s trust and that has been the biggest advantage.”[xxvi] Video and audio recording have greatly impacted many industries.[xxvii] For example, airplanes use black boxes to help with investigations for aviation crashes, police utilize body cams to provide recordings of their public encounters, and video doorbells provide security footage.[xxviii] The use of surveillance cameras for investigatory purposes would not be one of first impression in the United States. However, the United States healthcare system remains outdated.[xxix] With surgical error being the highest number of medical malpractice claims, the United States must make a change in its healthcare practice.[xxx]If the United States follows South Korea’s healthcare practices and follows other industry current practices, video surveillance in operating rooms may be implemented in the future.

[i] Best Healthcare in the World 2022, World Population Review, https://worldpopulationreview.com/country-rankings/best-healthcare-in-the-world.

[ii] Sophia Ireland, Revealed: Countries with the Best Health Care Systems, 2021, CEOWorld Magazine (Apr. 27, 2021), https://ceoworld.biz/2021/04/27/revealed-countries-with-the-best-health-care-systems-2021/.

[iii] John Yoon, South Korea Turns to Surveillance as ‘Ghost Surgeries’ Shake Faith in Hospitals, The New York Times (May 13, 2022), https://www.nytimes.com/2022/05/13/world/asia/south-korea-cameras-ghost-surgery.html.

[iv] Id.

[v] Christopher Nace, Are Cameras in the Operating Rooms an Effective Way to Curb Medical Malpractice?, Paulson & Nace, PLLC, https://www.paulsonandnace.com/are-cameras-in-the-operating-room-an-effective-way-to-curb-medical-malpractice/.

[vi] See Id.

[vii] Id.

[viii] Elma Mrkonjić, 22 Painful Medical Malpractice Statistics for 2021, The High Court (July 9, 2021), https://thehighcourt.co/medical-malpractice-statistics/.

[ix] Yoon, supra note 3.

[x] Epstein NE. Ghost Surgery, Including Neurosurgery and Other Surgical Subspecialties. Surg Neurol Int 2019;10:157 (citing Dunn DA. Ghost Surgery: A Frank Look at the Issue and How to Address It. ORN J, 2015;102(06):603-13).

[xi] Yoon, supra note 3.

[xii] Charlotte Huffman & Mark Smith, ‘Ghost surgery’ and Informed Consent Fraud is Common, American Patient Rights Association (Nov. 21, 2019), https://www.americanpatient.org/.

[xiii] Id.

[xiv] Nace, supra note 5.

[xv] Id.

[xvi] Id.

[xvii] Id.

[xviii] Id.

[xix] Admin, Using video cameras in the operating room, The Operating Room Global (Feb. 13, 2021), https://www.operatingroomissues.org/using-video-cameras-in-the-operating-room/.

[xx] Carrie Capouellez, Operating Room Cameras and Surgical Malpractice Claims, Lopez McHugh LLP (May 11, 2022), https://www.phillymalpracticelawyer.com/blog/operating-room-cameras-and-surgical-malpractice-claims/.

[xxi] Id.

[xxii] Yoon, supra note 3.

[xxiii] Zachary Mushkatel, Should Operating Rooms in Arizona Have Cameras, Mushkatel, Robbins & Becker, PLLC, https://www.phoenixlawteam.com/blog/should-operating-rooms-in-arizona-have-cameras/.

[xxiv] Nicole Dimetman, 35+ Medical Malpractice Statistics for 2022, Just Great Lawyers (Jan. 26, 2022), https://www.justgreatlawyers.com/legal-guides/medical-malpractice-statistics.

[xxv] Id.

[xxvi] Yoon, supra note 3.

[xxvii] Capouellez, supra note 17.

[xxviii] Id.

[xxix] Id.

[xxx] Dimetman, supra note 21.