Cover of Consumer Reports Magazine in 2016. Source.

by Paul Fassa
Health Impact News

Most of us know something about “black boxes” used in aircraft that record all mechanical functions and crew conversations that can be retrieved and analyzed after accidents to help determine causation. 

A surgery room “black box” would not be as equipped as most aircraft black boxes, but it would potentially serve a similar purpose by requiring a surgical unit or hospital to allow patients the option of having their surgeries videotaped in color with audio.

There would be harsh financial penalties for tampering with the tapes, and they would be considered part of patients’ medical records that they could access. 

The Wisconsin bill’s intent is to create a law that would provide patients and family members with a neutral unbiased witness for any incorrect procedures during surgery that worsened one’s condition or caused death.

The updated Wisconsin State Assembly Bill 863 was introduced in January 2018, and is scheduled for discussion and voting during the 2019 Wisconsin State Legislature sessions beginning January 7th, 2019. 

This is a huge victory, as doctors and medical officials have vigorously opposed this legislation, and there has been great doubt that this bill would gain any traction and come up for a vote due to the pro-Pharma lobby.

Medical errors are the third highest source of deaths in America, according to Johns Hopkins University research.

See our previous coverage of this bill:

Why are Doctors Opposing Grassroots Legislation to Require Cameras in Surgery to Protect Patient Rights?

The Bill’s stated purpose is to provide legislation for requiring surgical units to provide:

[A] video recording of surgical procedures, providing an exception from emergency rule procedures, granting rule-making authority, requiring the exercise of rule-making authority, and providing penalties.

Some Salient Points of Wisconsin Assembly Bill 863

The option to record surgical procedures is left for the patient to decide.

But if the bill becomes law, the patient needs to be fully informed of the right to decide. If decided upon, the video/audio tape would become part of that patient’s accessible medical records.

If the patient is incapacitated or a minor, a patient advocate or relative must be given the opportunity to consent for the surgery’s video recording on behalf of that patient.

It would be enforced with the threat of a $25,000 fine for each violation involving not informing patients or patients’ representatives or refusing to comply with those who desire the surgery’s recording.

The same fine applies to defacing, concealing, or altering the completed recording. 

Surgical facilities are also required to inform patients of rights to have post-surgical discharge instructions recorded. 

The actual events to be taped include surgical preparations, patient and practitioner surgical room activity, as well as room entry and exit, all with exact times and dates overtly recorded.

Surgical facilities are allowed to charge a fully disclosed fee of $25.00 for each recording. Exemptions to these requirements are allowed in emergency events that demand immediate surgical procedures to avert death or life-threatening complications. 

How the 863 Bill Came About

It was sparked by a personal surgical tragedy in Florida. In 2003, Wade Charles Ayer’s sister Julie Ayer Rubenzer went in for a simple cosmetic surgery in Sarasota, Florida. She wound up in a coma and quickly died. 

Wisconsin natives Ayer and his father wanted answers to why so common a procedure could cause a dramatic change to a normally healthy person. 

But they were met with changing stories and stonewalling. Further investigation led to a host of “standard of care” violations.

So Ayer started a Facebook page to serve as a community base for other surgical tragedies that were created by careless negligence or intentional malpractice to lower procedural expenses.

As the other stories were posted, Ayer realized that there were common factors among all the stories:

• No accountability – victims are stonewalled or intentionally misled from the truth.
• No transparency –  black box could protect whistle-blowers from professional retribution.
• Medical Records Disappearing – and being altered after a mishap.
• No national tracking system for medical malpractice doctors.
• The need for tort reform – inadequate financial awards to victims. 

Ayer’s Facebook page, National Organization for Medical Malpractice Victims, has become a repository of deaths from medical intervention errors.

Wade Ayer contacted Wisconsin Assembly Representative Christine Sinicki. She used Wade’s information to present the issues that involved a few co-authors of the bill that guarantees a black box presence during surgeries.

A video of Rep. Sinicki’s press conference announcing the proposed bill, currently nick-named The Julie Ayer Rubenzer Law or The Surgical Black Box is available on Facebook.

What is hoped for is that everyone eligible gets on board to express their approval of the bill to their local Assembly Representative and State Senator.

This could be the shot across this nation that gets picked up by other states and eventually become part of national health policies.

Concluding Opinion

This type of legislation is a vital start toward demystifying medical bureaucracies and creating transparency within the medical system. It can be considered preventative as well as punitive. 

With a camera recording all the surgical proceedings in real time in the room, focus on doing everything right is encouraged, while tampering with records to cover-up what really happened is discouraged. 

Advocates recommend not being too concerned with how this affects doctors’ liability insurance, which covers malpractice settlements. They are currently capped at payouts that are insufficient or inappropriate. 

The expense and amount of court times for malpractice suits are lowered as well. Instead of seeking expert witnesses for plaintiffs and defendants to argue back and forth, the unbiased eyes and ears of a black box video provide a bedrock of reality that’s indisputable.

In addition to receiving anecdotal victim or relative stories, Wade reported he had received many insider stories from individuals who are involved with surgeries that are usually withheld to protect against professional harassment.    

The videos may not catch every detail of what goes on during any particular surgery, including all the major moves, drug choices, and amounts of anesthesia given.

Combined with a chronological narrative from monitors reflecting the patient’s state of health, the surgical black box is a vehicle of transparency that may also enable whistle-blowers to make reports without retribution when backed with an indisputable objective witness. 

You can reach Wisconsin State representatives and senators to voice your support of Bill 863 using this link.