2015 - 2016 LEGISLATURE
June 4, 2015 - Introduced by Representatives Sinicki,
Brostoff, Quinn, Sargent
and Subeck. Referred to Committee on Health.
1An Act to amend
146.81 (4); and to create
50.373, 146.83 (3f) (b) 3m. and 655.27 2
(1g) of the statutes; relating to: video recording of surgical procedures,
3providing an exemption from emergency rule procedures, granting
4rule-making authority, requiring the exercise of rule-making authority, and
Analysis by the Legislative Reference Bureau
This bill creates a requirement for hospitals, ambulatory surgical centers, or
any other places where surgical procedures are performed (surgical facilities) to offer
surgical patients the option to have their surgical procedures videotaped. Surgical
facilities must provide notice of the option and all related procedures and conditions
set forth in the bill. For purposes of this bill, a surgical procedure is one for which
a patient is given a general anesthetic. If a patient makes a request to have a surgical
procedure recorded, this bill requires that the surgical facility, or its designee, record
the surgical procedure with both audio and color video, and record with color video
any entryway to or exit from the surgical suite during the time reserved for the
surgery of the requesting patient, including preparation time. If the surgical patient
is incapacitated, the surgical facility is required to provide a person authorized by
the patient with notice of the option for video recording, and that person may request
that a recording be made. Similarly, if the surgical patient is a minor, the surgical
facility must notify a parent, guardian, or legal custodian of the option for video
recording and allow that person to make a request for a recording on behalf of the
minor. The bill also allows a physician or certain other individual who holds a valid
license or other credential that allows him or her to perform surgical procedures for
which a patient is under general anesthesia (surgical practitioner) and who is
scheduled to perform a surgical patient's surgical procedure to request that a
recording be made, and a surgical facility must comply with the request so long as
certain conditions are met, including that the surgical patient or person authorized
by the patient does not object. Under the bill, in certain limited emergency
circumstances, surgical facilities are not required to provide the option of recording.
In return for exercising the option to have a surgical procedure recorded, under
the bill, the surgical patient or, if applicable, parent, guardian, legal custodian, or
person authorized by the patient may disclose the recording only to limited
authorized individuals unless confidentiality is waived by the surgical practitioner.
Video recordings of surgical procedures created under this bill are otherwise treated
as patient health care records and are subject to the same protections as other
medical records including all criminal and civil penalties for improper disclosure or
destruction. The bill specifies that, once a recording is complete, the surgical facility
or its designee must preserve the recording as part of the patient's health care record
but delete copies of the recording from the recording device and elsewhere. Upon
request, the surgical facility must provide to the patient, person authorized by the
patient, or parent, guardian, or legal custodian of the patient one copy of the
recording free of charge. Recordings under this bill are admissible as evidence in any
civil or criminal action or proceeding related to any alleged act or omission depicted
in the recording.
Under this bill, a surgical patient may complete an advance request for
recording, which permits an individual who is of sound mind and over the age of 18
to request video recording for future surgical procedures. The individual may
complete an advance request for a single specific surgical procedure or for all future
surgical procedures to which this bill would apply. An advance request must be
completed voluntarily, and must be in writing and signed and dated in the presence
of a witness over the age of 18. The advance request may be revoked at any time.
This bill provides that a health care provider who knowingly refuses to comply
with a patient request for recording is subject to a forfeiture of up to $25,000 for each
violation. A surgical facility that fails to provide a required notice of the option for
recording, including information regarding the procedures, fees, conditions, the
surgical practitioner's request option, and the advance request option, is subject to
a forfeiture of up to $25,000 for each violation. Whoever intentionally conceals,
cancels, defaces, obliterates, damages, or destroys an advance request for recording
without consent may be subject to a forfeiture of up to $25,000 for each violation.
Finally, a patient, parent, guardian, legal custodian, or person authorized by a
patient who knowingly violates the confidentiality provision and discloses a video to
an unauthorized individual is subject to a forfeiture of up to $25,000 for each
Under this bill, the Department of Health Services (DHS) is required to
promulgate rules establishing standards relating to the recording equipment, the
recording, and the fees to be charged for completing the recording and for obtaining
copies of the recording. DHS may promulgate additional rules as necessary to
implement and administer the provisions of the bill.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
50.373 of the statutes is created to read:
250.373 Video recording of surgical procedures. (1) Definitions
. In this 3
(a) "General anesthesia" means a temporary status commonly produced by the 5
administration of certain intravenous drugs and inhaled gases that cause a patient 6
to be unconscious and unable to feel pain during a medical procedure.
(b) "Health care provider" means a person or entity described under s. 146.81 8
(1) (a) to (p) and includes any surgical facility under par. (e).
(c) "Incapacitated" means unable to receive and evaluate information 10
effectively or to communicate decisions to such an extent that an individual lacks the 11
capacity to manage his or her health care decisions.
(d) "Patient health care records" has the meaning given in s. 146.81 (4).
(e) "Surgical facility" means a hospital, as defined in s. 50.33 (2), an ambulatory 14
surgical center, as defined in 42 CFR 416.2
, or any other place where a surgical 15
procedure is performed.
(f) "Surgical patient" means a patient who is scheduled to undergo a surgical 17
(g) "Surgical practitioner" means a physician, surgeon, or osteopath under s. 19
990.01 (28), an individual licensed to practice dentistry under ch. 447, and any other
individual who holds a valid license or other credential that allows him or her to 2
perform a surgical procedure.
(h) "Surgical procedure" means a surgical procedure for which a patient is 4
under general anesthesia.
5(2) Option for recording
. (a) A surgical facility shall provide a surgical 6
patient the option to have the surgical facility or the surgical facility's designee make 7
a color video recording, including both audio and video and display of the time and 8
date, of the patient's surgical procedure at the patient's expense as described under 9
(b) 1. A surgical facility shall notify a surgical patient or, if the surgical patient 11
is incapacitated, a person authorized by the patient under s. 146.81 (5) of the option 12
to have a recording made under par. (a) and of the procedures, fees, conditions, the 13
surgical practitioner's request option, and the advance request option.
2. If the surgical patient is a minor child, the surgical facility shall notify the 15
minor child's parent, guardian, or legal custodian of the option to have a recording 16
made under par. (a) and of the procedures, fees, conditions, the surgical practitioner's 17
request option, and the advance request option.
(c) A surgical practitioner who is scheduled to participate in a surgical patient's 19
surgical procedure may request that the procedure be video recorded under the 20
procedures described in this subsection. The surgical facility shall comply with the 21
surgical practitioner's request if all of the following are true:
1. The requesting surgical practitioner has informed the patient or, if 23
applicable, a parent, guardian, legal custodian, or a person authorized by the patient, 24
of the surgical practitioner's request for video recording and the reason the surgical 25
practitioner has requested that recording.
2. The surgical patient, or if applicable, the parent, guardian, legal custodian, 2
or person authorized by the patient under s. 146.81 (5), does not object to the video 3
(d) A surgical patient, or if applicable, parent, guardian, legal custodian, or 5
person authorized by the patient under s. 146.81 (5), may not disclose, unless the 6
surgical practitioner involved waives confidentiality, the content of a video recording 7
created under this section except to health care providers providing care to the 8
surgical patient, to immediate family members or a person authorized by the patient 9
under s. 146.81 (5), or to an attorney or an attorney's staff for the purpose of obtaining 10
legal advice. If legal action is taken, the surgical patient may disclose the video 11
recording to additional individuals if necessary for the case, but it shall be filed under 12
seal if permitted. In all other respects, recordings under this section shall be treated 13
as patient health care records.
14(3) Entry and exit recording
. If a surgical patient requests to have his or her 15
surgical procedure recorded under sub. (2) (a), the surgical facility or its designee 16
shall also make a color video recording, including display of the time and date, of any 17
entryway to or exit from the surgical suite in which the surgical procedure being 18
recorded is taking place, during the time from which the surgical suite is being 19
prepared for the surgery of the patient being recorded until that surgical patient 20
exits the suite. A surgical facility is not required to record audio in making the 21
recording under this subsection.
22(4) Equipment and technical assistance
. A surgical facility shall have 23
available appropriate video recording equipment and technical assistance as 24
determined by the department in rules promulgated under sub. (8) to comply with 25
a surgical patient request for a recording of his or her surgical procedure.
. If a surgical patient is incapacitated, a person authorized by 2
the patient under s. 146.81 (5) may request that a recording be made of the patient's 3
surgical procedure under sub. (2) (a).
If a surgical patient is a minor child, a parent, guardian, or legal 5
custodian may request that a recording be made of the minor child's surgical 6
procedure under sub. (2) (a).
7(7) Exception for emergencies
. (a) Notwithstanding sub. (2), a surgical 8
facility is not required to provide the option of a video recording under this section 9
if the surgical practitioner determines in the exercise of his or her professional 10
judgment that either of the following is true:
1. Immediate surgery is necessary to avert death.
2. Other circumstances exist such that video recording would cause a delay that 13
would create a serious risk of substantial and irreversible impairment of one or more 14
of the surgical patient's bodily functions.
(b) The health care provider shall inform the surgical patient, or the parent, 16
guardian, or legal custodian or person authorized by the patient under s. 146.81 (5), 17
if applicable, of the medical indications supporting the surgical practitioner's 18
reasonable medical judgment that either of the emergency conditions under par. (a) 19
. (a) The department shall promulgate rules establishing all of the 21
1. Standards for video recording of surgical procedures and the use of video 23
recording equipment in the surgery setting to ensure such recordings are 24
professional and of sufficient quality to accurately portray what takes place during 25
a surgical procedure.
2. The fees under sub. (10) (a).
(b) The department may promulgate rules, as necessary, to implement and 3
administer this section, including any of the following:
1. Establishing criteria and procedures for providing notice and the option for 5
video recording under sub. (2).
2. Implementing the requirements regarding preservation and destruction of 7
recordings under sub. (9).
3. Establishing standards, procedures, and forms for advance requests for 9
recording under sub. (12).
4. Implementing the forfeiture procedures under sub. (14).
11(9) Preservation and destruction
. After the recording of a surgical procedure 12
under this section is complete, the surgical facility or its designee shall promptly do 13
all of the following:
(a) Preserve the recording as part of the surgical patient's health care record, 15
which may include both a copy in the patient's health care record and any electronic 16
backup of health care records kept in the normal course of business.