Annotated Bibliography on the Ethical, Legal and Social Implications of Surgical Recording

Compiled by Kelly Vittetoe, BS, MD candidate, Vanderbilt University School of Medicine, and Alexander Langerman, MD SM FACS, Director, Surgical Ethics Program.

The following entries include published papers on ethical, legal and social analyses, technical and implementation articles, and proposed US state legislature on recording in the operating room. Entries are displayed chronologically from oldest to newest. These resources were compiled to supplement the first global conference on Ethical, Legal and Social Implications of Surgical Recording, held virtually on May 14th 2021. More details about the meeting at www.surgicalrecording.org.

Millat B, Fingerhut A, Cuschieri A. Live surgery and video presentations: seeing is believing ... but no more: a plea for structured rigor and ethical considerations. Surg Endosc. 2006;20(6):845-847.

Access: https://pubmed.ncbi.nlm.nih.gov/16738966/

Focusing on live surgery demonstrations as well as video recording, the authors examine informed consent, confidentiality, the ethics of video editing, and audience perceptions of edited surgical video. Further, they discuss implications for video storage and ownership.

Feigenson N. Law on Display the Digital Transformation of Legal Persuasion and Judgment. University Press; 2009.

Access: https://www.jstor.org/stable/j.ctt9qfsvr

In this legal text, the authors consider the inclusion of audiovisual evidence in legal proceedings. Although not focused on operating room recording, this book describes several situations involving the use of audiovisual evidence in medicolegal cases and discusses the impacts of technological advancement on the judicial system.

Greenberg C, Cohen EE. Legal Report: Should Video Cameras Be in Operating Rooms. Published online 2009.

Access: https://www.rmf.harvard.edu/Clinician-Resources/Article/2010/Legal-Report-Should-Video-Cameras-Be-in-Operating-Rooms

In this transcribed conversation, Ellen Epstein Cohen, JD and Caprice Greenberg, MD, MPH discuss their perspectives on the role of video cameras in operating rooms as part of a Harvard University patient safety conference. They share their optimism about the impact of surgical video for patients and surgeons alike, while also providing cautions about responsible, ethical use of video.

Gelbart B, Barfield C, Watkins A. Ethical and legal considerations in video recording neonatal resuscitations. Journal of Medical Ethics. 2009;35(2):120-124.

Access: https://pubmed.ncbi.nlm.nih.gov/19181886/

This paper reviews ethical, legal, and risk-management issues arising during the design of a quality-assurance project to make video recordings of neonatal resuscitations after high-risk deliveries.

Hall MA, Schulman KA. Ownership of Medical Information. JAMA. 2009;301(12):1282-1284.

Access: https://pubmed.ncbi.nlm.nih.gov/19318657/

The authors describe issues surrounding the concept of ownership as it pertains to digitized personal health information (PHI) and medical records. They discuss the concept of electronic medical information as an “anticommons,” a concept introduced by legal scholars Heller and Eisenberg to describe a resource that has numerous rightsholders, any of whom can prevent others from accessing said resource.

Raghavendra M, Rex DK. Patient interest in video recording of colonoscopy: a survey. World J Gastroenterol. 2010;16(4):458-61

Access: https://pubmed.ncbi.nlm.nih.gov/20101771/

This survey of 248 outpatients presenting for colonoscopy found that 81% were interested in a recording of their procedure, and 63% were willing to pay for it (some over $300). Interest in these video recordings increased after patients were informed about the possibility of errors in polyp detection.

Gambadauro P, Magos A. Surgical Videos for Accident Analysis, Performance Improvement, and Complication Prevention: Time for a Surgical Black Box? Surg Innov. 2012;19(1):76-80.

Access: https://pubmed.ncbi.nlm.nih.gov/21868420/

The authors of this article propose that the systematic recording and reviewing of surgical videos – a “surgical black box” – might improve surgical care, help prevent complications, and allow accident analysis

Henken KR, Jansen FW, Klein J, Stassen LPS, Dankelman J, Dobbelsteen JJ van den. Implications of the law on video recording in clinical practice. Surg Endosc. 2012;26(10):2909-2916.

Access: https://pubmed.ncbi.nlm.nih.gov/22538690/

This article focuses on the role of the law in regulating the use of medical video recording. The authors conclude that video recording can contribute to patient safety but that practical regulations on its use in health care are lacking.

Makary MA. The Power of Video Recording: Taking Quality to the Next Level. JAMA. 2013;309(15):1591.

Access: https://pubmed.ncbi.nlm.nih.gov/23546452/

Dr. Makary focuses on quality improvement and the specific ways in which surgical recording enhances patient care and safety in the opinion piece. Additionally, he briefly discusses informed consent as well as patients’ rights to access their surgical videos.

Turnbull AMJ, Emsley ES. Video recording of ophthalmic surgery—ethical and legal considerations. Survey of Ophthalmology. 2014;59(5):553-558.

Access: https://pubmed.ncbi.nlm.nih.gov/24657036/

In addition to a discussion of video recording considerations specific to ophthalmology, this paper also considers more broadly the issues of privacy, consent, video editing and erasing, and ownership – proposing that the medical record itself belongs to the institution, while the information contained within the record belongs to the patient. 

Mok TM, Cornish F, Tarr J. Too Much Information: Visual Research Ethics in the Age of Wearable Cameras. Integr psych behav. 2015;49(2):309-322.

Access: https://pubmed.ncbi.nlm.nih.gov/25537955/

This article describes the ways in which new technology presents challenges to traditional ideas of informed consent, anonymity, confidentiality, privacy, beneficence, and maleficence. The authors argue that the fundamental principles of research ethics frameworks have become even more important given these technological advances, and that institutional frameworks need to adapt to keep pace with the growing presence and power of video recording technologies.

Silas MR, Grassia P, Langerman A. Video recording of the operating room--is anonymity possible? J Surg Res. 2015;197(2):272-276.

Access: https://pubmed.ncbi.nlm.nih.gov/25972314/

This study provides the first normative data on de-identification in the setting of video recording in the operating room, demonstrating that surgical video postprocessing affects operating room staff members’ perceptions of anonymity. The authors conclude that it is possible to produce videos that retain details about surgical activity while still being perceived as anonymous by viewers.

Makary MA, Xu T, Pawlik TM. Can video recording revolutionise medical quality? BMJ?: British Medical Journal. 2015;351:h5169-h5169.

Access: https://pubmed.ncbi.nlm.nih.gov/26489960/

This paper supports video recording in the operating room as a means to capture inappropriate behavior by clinical staff, resulting in increased accountability for behavior when patients are anesthetized. Analogies are drawn to speed cameras for traffic safety and “nanny cameras” for child care. The authors also describe the utility of video for after-action review and physician learning.

Prigoff JG, Sherwin M, Divino CM. Ethical Recommendations for Video Recording in the Operating Room. Annals of Surgery. 2016;264(1):34-35.

Access: https://pubmed.ncbi.nlm.nih.gov/27123809/

A prevalently cited article on this topic, this paper describes current principles of recording in the operating room, defines key topics for consideration in recording, and provides specific ethical guidelines for audiovisual surgical recording.

Dorfman RG, Vaca EE, Fine NA, Schierle CF. The Ethics of Sharing Plastic Surgery Videos on Social Media: Systematic Literature Review, Ethical Analysis, and Proposed Guidelines. Plast Reconstr Surg. 2017;140(4):825-836.

Access: https://pubmed.ncbi.nlm.nih.gov/28953737/

Extrapolating beyond surgical recording, this article examines the ethics of sharing surgical videos on social media. The authors discuss the ethical concerns and risks faced by patients via use of social media video sharing platforms and recommend adoption of formalized guidelines by governing bodies to uphold ethical standards in social media.

Langerman A, Grantcharov TP. Are We Ready for Our Close-up?: Why and How We Must Embrace Video in the OR. Ann Surg. 2017;266(6):934-936.

Access: https://pubmed.ncbi.nlm.nih.gov/28338514/

This paper features a discussion of the value of surgical recording to enhance training, improve quality and patient care, and provide greater transparency for patients. Additionally, the authors outline ethical and legal considerations for recording, including the need for policy to protect all stakeholders, guidelines to ensure that videos are protected as part of the medical record, as well as a grace period for surgeons and other healthcare personnel to adjust as operating room recording is implemented.

Goldenberg MG, Jung J, Grantcharov TP. Using Data to Enhance Performance and Improve Quality and Safety in Surgery. JAMA Surg. 2017;152(10):972-973.

Access: https://pubmed.ncbi.nlm.nih.gov/28813552/

This paper examines the practicality of implementing the OR Black Box widely, identifying barriers such as cost, medicolegal concerns, influence on team dynamics and behavior, and fear of potential misinterpretation of the severity and implication of intraoperative events. The authors conclude that, to achieve broad implementation, there is a need for clear rules about how data will be collected, used, and protected, as well as how privacy of patients and health care professionals will be protected.

Hashimoto DA, Rosman G, Rus D, Meireles OR. Surgical Video in the Age of Big Data. Annals of surgery. 2018;268(6):e47-e48.

Access: https://pubmed.ncbi.nlm.nih.gov/28837447/

In response to the 2017 article by Langerman and Gratcharov, the authors point out the value of “big data” and machine learning in operating room recording, highlighting the massive opportunity that collecting and analyzing large amounts of surgical video data could provide for education and quality improvement.

Butler DJ. A review of published guidance for video recording in medical education. Fam Syst Health. 2018;36(1):4-16.

Access: https://pubmed.ncbi.nlm.nih.gov/29369649/

This article provides a review of the literature on video recording in medical education from the 1960s to the present, describing audiovisual recording in the medical setting as a whole. The author identifies six key issues surrounding medical recording: informed consent policies, informed consent procedures, inadvertently recorded medical errors, secondary use of recordings, collateral patient information, and public trust issues. The review discusses contradictory opinions on informed consent policies, inadequate guidance for responding when medical errors are recorded, and conflicting opinions about when recordings become part of the medical record.

Cortez N. A Black Box for Patient Safety Twenty-Fourth Annual Clifford Symposium on Tort Law and Social Policy: Patient Safety: How Might the Law Help. DePaul L Rev. 2018;68(2):239-262.

Access: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3391864

This legal review summarizes the ways in which medicine has followed aviation’s lead in the movement to create a “Black Box” to study errors and improve patient safety. The author evaluates whether these videos should be discoverable and admissible in U.S. courts in medical malpractice actions, examining the “traditional tension between an information policy tailored to medical malpractice and an information policy tailored to patient safety.”

Etherington N, Usama A, Patey AM, et al. Exploring stakeholder perceptions around implementation of the Operating Room Black Box for patient safety research: a qualitative study using the theoretical domains framework. BMJ Open Qual. 2019;8(3).

Access: https://pubmed.ncbi.nlm.nih.gov/31428707/

This qualitative study examines the perspectives of patients, clinicians, and hospital administration regarding surgical recording for quality improvement. Through surveys of participant opinions about the “OR Black Box,” the authors identify key domains of interest for each stakeholder group.

Dalen ASHM van, Legemaate J, Schlack WS, Legemate DA, Schijven MP. Legal perspectives on black box recording devices in the operating environment. BJS (British Journal of Surgery). 2019;106(11):1433-1441.

Access: https://pubmed.ncbi.nlm.nih.gov/31112294/

This paper addresses privacy and legislation issues related to recording in the operating room, specifically dealing with recordings made for quality improvement purposes. The authors propose that, as the patient is not the object of the study itself when the purpose of the recording is quality improvement, patient identifiers should be removed, and an “opt-out” option for the patient is sufficient.

Jue J, Shah N, Mackey T. An Interdisciplinary Review of Surgical Data Recording Technology Features and Legal Considerations. Surgical innovation. Published online 2019.

Access: https://pubmed.ncbi.nlm.nih.gov/31808364/

This review encompasses all forms of operating room data recording, from monitored vital signs to video recordings, and focuses broadly on the implications of data recording in the operating room. The authors present legal questions regarding ownership of information and privacy, as well as regulatory concerns at the federal and state levels. They conclude that the benefits of these data should be balanced with appropriate policies and regulations to protect the interests of clinicians and patients alike.

Gerke S, Yeung S, Cohen IG. Ethical and Legal Aspects of Ambient Intelligence in Hospitals. JAMA. 2020;323(7):601-602.

Access: https://pubmed.ncbi.nlm.nih.gov/31977033/

This Viewpoint article examines the utility and implications of audiovisual recording at the bedside; however, its discussion is applicable to operating room recording as well. The authors discuss three primary concerns: privacy and reidentification risk, consent (including practical challenges to “opt-out policies” and recording without consent), and liability (with strategies for risk reduction).

Gabrielli M, Valera L, Barrientos M. Audio and panoramic video recording in the operating room: legal and ethical perspectives. Journal of medical ethics. Published online 2020.

Access: https://pubmed.ncbi.nlm.nih.gov/32241807/

This paper evaluates the different approaches taken by the General Data Protection Regulation (EU) and HIPAA (US) regarding patient privacy in the context of recording in the operating room. The article includes discussions of autonomy, privacy, security and safety in the operating room, ownership of recordings, as well as editing and erasing video recordings.

Shah NA, Jue J, Mackey TK. Surgical Data Recording Technology: A Solution to Address Medical Errors? Annals of surgery. 2020;271(3):431-433.

Access: https://pubmed.ncbi.nlm.nih.gov/31356264/

Acknowledging the potential of video recording to ameliorate surgical error, this paper discusses the need for investment and action on the part of the healthcare community as well as policy makers. The authors identify a key balance between transparency and privacy, examining how best to promote a culture of safety in which healthcare workers continue to have private space in which to learn from errors.

Gallant J-N, Brelsford K, Sharma S, Grantcharov T, Langerman A. Patient Perceptions of Audio and Video Recording in the Operating Room. Annals of surgery. 2021; e-Publish Ahead of Print.

Access: https://pubmed.ncbi.nlm.nih.gov/33630449/

This study examines patients’ perspectives on surgical recording for quality improvement, teaching, and personal patient access. The results of a series of qualitative interviews highlight a need for patient-focused messaging about any recording device in the operating room, as well as consideration of patients as valid stakeholders in operating room recordings when developing future regulatory policies.

House Bill 6332. An Act Requiring Video Cameras In Operating Rooms, 1991.

Access: https://archives.lib.state.ma.us/handle/2452/589829

This bill would require hospitals to, at the option of the patient, record any operation or procedure performed for that patient. A future adaptation of this bill was introduced as House Bill 633 in 2011 (below).

Massachussetts House Bill 633: An Act Relative to Video and Audio Patient Protection System, 2011.

Access: https://malegislature.gov/Bills/188/H210

This bill would have required every licensed hospital in Massachusetts to allow any patient undergoing surgery to have a licensed medical videographer record the patient’s surgery. This bill specifies that the videographer does not need to be in the room during the surgical procedure and that a copy of the video should be given to the hospital free of charge. This bill was not passed.

Mississippi House Bill 1006. An Act To Require That All Surgical Procedures by Physicians or Other Health Care Providers Be Recorded With A Video Device And That The Recording Be Maintained for Not Less Than Four Years, 2012.

Access: https://legiscan.com/MS/text/HB1006/id/1864541

This bill would have required hospitals to record the entirety of any procedure or surgery at a patient’s request and keep the recording for at least four years. This bill was not passed.

Wisconsin Assembly Bill 25, 2015

Access: https://docs.legis.wisconsin.gov/2015/related/proposals/ab255

This bill would have required hospitals, ambulatory surgical centers, or any other places where surgical procedures are performed to offer patients the option to have their surgical procedures videotaped. A surgical procedure is defined in this bill as any procedure for which a patient is given general anesthetic. This bill was not passed.

This curated list of papers demonstrate the potential applications of recordings for patient safety, skills assessment, and education, as well as the technical nuances which might inform policy.

Weinger MB, Gonzales DC, Slagle J, Syeed M. Video capture of clinical care to enhance patient safety. Quality & safety in health care. 2004;13(2):136-144.

Access: https://pubmed.ncbi.nlm.nih.gov/15069222/

This 2004 paper describes various methods of video recording, emphasizing the importance of forethought and system design to ensure that the product meets the needs of the audience for which it is being recorded. While primarily technical in nature, this paper also addressed issues of cost, privacy, and medicolegal risks regarding discoverability.

Guerlain S, Adams RB, Turrentine FB, et al. Assessing team performance in the operating room: development and use of a “black-box” recorder and other tools for the intraoperative environment. J Am Coll Surg. 2005;200(1):29-37.

Access: https://pubmed.ncbi.nlm.nih.gov/15631917/

This early (modern) effort at surgical recording utilized a synchronized, digital audio-visual recording system (RATE tool) developed to monitor intraoperative performance. The RATE tool allowed real time data collection of all aspects of the operative environment, incorporating assessment data in a time-synchronized and annotated fashion during the procedure.

Ahmed I Albarrak. Operating Room Informatics: An Approach to Managing and Utilizing Patients’ Surgical Data. International journal of collaborative research on internal medicine & public health. 2013;5(12):641.

Access: https://www.iomcworld.org/articles/operating-room-informatics-an-approach-tomanaging-and-utilizing-patients-surgical-data.pdf

This article examines the value of video recording to medical education, emphasizing the ability to share recordings between institutions, thereby enhancing collaboration and learning.

Birkmeyer JD, Birkmeyer NJ, Finks JF, et al. Surgical Skill and Complication Rates after Bariatric Surgery. The New England journal of medicine. 2013;369(15):1434-1442.

Access: https://pubmed.ncbi.nlm.nih.gov/24106936/

Using existing outcomes data from the Michigan Bariatric Surgery Collaborative, the authors asked surgeons to submit a representative video of their operating for skills assessment. Ultimately, they found a strong correlation between patient outcomes and surgeon skill as assessed on intra-operative recording. This was a landmark paper for demonstrating the connection between video-assessed surgical skills and clinical outcomes.

O’Mahoney PRA, Yeo HL, Lange MM, Milsom JW. Driving Surgical Quality Using Operative Video. Surg Innov. 2016;23(4):337-340.

Access: https://pubmed.ncbi.nlm.nih.gov/27076573/

This article endorses operation room recording as an important tool for learning and quality improvement. The authors describe a future system in which every operation is recorded in its full length and then automatically uploaded, unaltered, into the patient’s secure electronic medical record. They discuss the value of transparency, noting that previous initiative to improve transparency in medicine have resulted in increased patient satisfaction and compliance with care.

Hu Y-Y, Mazer LM, Yule SJ, et al. Complementing Operating Room Teaching With Video-Based Coaching. JAMA surgery. 2016;152(4):318-325.

Access: https://pubmed.ncbi.nlm.nih.gov/27973648/

In this study, ten residents were recorded while operating, and the video recordings were used for post-hoc teaching between the resident and an attending surgeon. They found that attending surgeons made more teaching points per unit time when reviewing recordings compared to teaching intra-operatively. Further, they noted that residents took more initiative in their education, and attending surgeons asked more questions to promote critical thinking and encourage resident learning goals.

Jung JJ, Jüni P, Lebovic G, Grantcharov T. First-year Analysis of the Operating Room Black Box Study. Ann Surg. 2020;271(1):122-127.

Access: https://pubmed.ncbi.nlm.nih.gov/29916872/

This study assessed a recently implemented “OR Black Box” initiative for elective laparoscopic operations. The authors note that frequent intraoperative errors and events, variation in surgeons' technical skills, and a high number of environmental distractions were identified using the OR Black Box.

Pugh CM, Hashimoto DA, Korndorffer JR. The what? How? And Who? Of video based assessment. Am J Surg. 2021;221(1):13-18.

Access: https://pubmed.ncbi.nlm.nih.gov/32665080/

This paper analyzes the methods in which surgical video review is used for learning and evaluation. The authors identify gaps in implementation and sustainable use of surgeon assessment using video recordings, discussing barriers such as validity, scalability, and video discoverability. They advocate for continued work in this field, promoting advances in engineering technology as well as artificial intelligence to make video-based assessment effective and efficient.