Law Faculty Scholarship

Document Type

Article

Publication Date

2023

Abstract

This article examines the emerging movement toward routine video and audio recording in the operating room and the ethical, legal, and social challenges accompanying this shift. Surgical recordings offer significant potential benefits for patient safety, clinical education, quality improvement, and research by providing an objective record of operative procedures. However, expanding recording practices—from limited intracorporeal imaging to full-room audiovisual capture—raises complex questions regarding ownership, access, liability, and privacy. The authors analyze the uncertain legal status of surgical recordings, particularly whether such recordings should be considered part of the patient’s medical record and thus subject to patient access rights under existing privacy laws. They also evaluate competing interests among stakeholders—including patients, clinicians, hospitals, and the judicial system—in controlling and using recorded data. The article further explores the implications of surgical recording for malpractice litigation, highlighting both the potential for recordings to clarify adherence to the standard of care and the risk that visual evidence may bias juries or increase liability exposure. Privacy concerns are intensified by the multisubject nature of operating-room recordings, which capture not only patients but also the actions and performance of clinicians. To facilitate responsible adoption of routine recording, the authors propose policy and institutional strategies addressing consent procedures, data governance, anonymization standards, liability protections, and stakeholder engagement. Ultimately, the article argues that thoughtful legal and policy frameworks are necessary to balance the transformative potential of surgical recording with the ethical and professional risks it presents.

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