With the use of video on the rise in court cases, attor- neys are also more sophisticated about tapping into its influence. But the legal standards regarding rules of evidence about a video’s credibility and authenticity are high. Here is a summary of an interview with Dr. MedLaw from a recent PW Podcast episode:

In March, a judge ruled that some evidence related to George Floyd’s 2019 arrest, including a portion of the accompanying body camera video, is admissible in the trial of former Minneapolis police officer Derek Chauvin. The objective was to provide medical evi- dence to prove cause of death. Once again, events in the news have raised questions for doctors about how a medical malpractice case they might face re- lating to past evidence would actually be conducted.

Many doctors were confused when the judge allowed that, because it looked like exactly the opposite of the rule that what a doctor does at another time with another patient is not evidence in a current case. And they were correct; as a gen- eral rule, all cases, including medical malpractice, are tried only on their own facts. It comes down to how medical principles were applied in the specific circumstances. Limiting the evidence to the actu- al events of the case makes sense. It also protects the doctor from the plaintiff throwing in unrelat- ed cases to make the doctor look bad to the jury. Unrelated acts that are just given to muddy up the defendant are more prejudicial than probative, and they can’t come into play.

There are limited ways in which how a doctor acted other times can be used as actual evidence. The first is when that prior conduct establishes a pattern that runs through to the current case. In the medical malpractice setting, the issue would be whether the cases were so similar that it is fair to consider the defendant’s actions in one case in the case for the other. When a plaintiff wants to intro- duce such facts, the judge will apply strict criteria.

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A defendant doctor presenting a video of their own to show how they perform in similar situations to those involved in the case should be blocked. It would be more puffing than probative to enter in a video of the doctor doing everything perfectly, because it is a prepared video. When the doctor is under direct examination, they can make general statements, such as how many of a given type of case they have done or if they have a complication rate that is low and has been independently veri- fied. What they can’t do is claim as evidence that their care was equally good in the case that they’re being sued about.

However, evidence that a doctor always does some- thing the same way can be very important, because lawsuits may be brought after the doctor has for- gotten the specifics of the case and can’t rely on the record—because doctors generally won’t write down the very routine aspects of care. They may still be able to testify that they must have done a necessary thing because they customarily always do it to the point that it’s predictable and doesn’t vary with circumstances.

It all comes down to the fairness of breaking away from the general rule that we only look at the prov- able facts in each case and let in outside facts.