2017 - 2018 LEGISLATURE
January 19, 2018 - Introduced by Representatives Sinicki, Berceau, Horlacher,
C. Taylor, Tusler and Zepnick. Referred to Committee on Health.
1An Act to amend
146.81 (4); and
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 — referred to in the bill
as surgical facilities — to offer surgical patients the option to have their surgical
procedures and discharge instructions 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 or discharge
instructions recorded, this bill requires that the surgical facility, or its designee,
record the surgical procedure or discharge instructions with both audio and color
video. When recording of a surgical procedure is requested, the facility must 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. A health care provider who provides the patient
with discharge instructions may also request that those instructions, as provided, be
recorded. A surgical facility must comply with these requests 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 health care provider
or surgical practitioner that is a subject of the video recording. 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. Under the bill, a
surgical facility may charge a surcharge of up to $25 for each recording of a surgical
procedure or discharge instructions. 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 without an additional 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 set of
discharge instructions, or for all future surgical procedures and discharge
instructions 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 is required to promulgate
rules establishing standards relating to the recording equipment and the recording.
The department 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) “Discharge instructions” means care instructions provided to a patient at 5
or near the time of a patient's exit or release from a surgical facility after a surgical 6
(b) “General anesthesia" means a temporary status commonly produced by the 8
administration of certain intravenous drugs and inhaled gases that cause a patient 9
to be unconscious and unable to feel pain during a medical procedure.
(c) “Health care provider" means a person or entity described under s. 146.81 11
(1) (a) to (p) and includes any surgical facility.
(d) “Incapacitated" means unable to receive and evaluate information 13
effectively or to communicate decisions to such an extent that an individual lacks the 14
capacity to manage his or her health care decisions.
(e) “Patient health care records" has the meaning given in s. 146.81 (4).
(f) “Surgical facility" means a hospital, as defined in s. 50.33 (2), an ambulatory 2
surgical center, as defined in 42 CFR 416.2
, or any other place where a surgical 3
procedure is performed.
(g) “Surgical patient" means a patient who is scheduled to undergo a surgical 5
(h) “Surgical practitioner" means a physician, surgeon, or osteopath under s. 7
990.01 (28), an individual licensed to practice dentistry under ch. 447, and any other 8
individual who holds a valid license or other credential that allows him or her to 9
perform a surgical procedure.
(i) “Surgical procedure" means a surgical procedure for which a patient is under 11
12(2) Option for recording
. (a) A surgical facility shall provide a surgical 13
patient the option to have the surgical facility or the surgical facility's designee make 14
a color video recording, including both audio and video and display of the time and 15
date, of the patient's surgical procedure. A surgical facility shall also provide a 16
surgical patient the option to have his or her discharge instructions, as given by the 17
patient's doctor or other health care provider, videotaped as described under this 18
(b) 1. A surgical facility shall notify a surgical patient or, if the surgical patient 20
is incapacitated, a person authorized by the patient under s. 146.81 (5) of the option 21
to have a recording made under par. (a) and of the procedures, fees, conditions, the 22
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 24
minor child's parent, guardian, or legal custodian of the option to have a recording
made under par. (a) and of the procedures, fees, conditions, the surgical practitioner's 2
request option, and the advance request option.
(c) A surgical practitioner who is scheduled to participate in a surgical patient's 4
surgical procedure may request that the procedure be video recorded under the 5
procedures described in this subsection. The surgical facility shall comply with the 6
surgical practitioner's request if all of the following are true:
1. The requesting surgical practitioner has informed the patient or, if 8
applicable, a parent, guardian, legal custodian, or a person authorized by the patient, 9
of the surgical practitioner's request for video recording and the reason the surgical 10
practitioner has requested that recording.
2. The surgical patient, or if applicable, the parent, guardian, legal custodian, 12
or person authorized by the patient under s. 146.81 (5), does not object to the video 13
(d) A patient's doctor or other health care provider who will administer a 15
patient's discharge instructions may request that the patient's discharge 16
instructions, as given by the health care provider, be video recorded under the 17
procedures described in this subsection. The surgical facility shall comply with the 18
health care provider's request if all of the following are true:
1. The requesting health care provider has informed the patient or, if 20
applicable, a parent, guardian, legal custodian, or a person authorized by the patient, 21
of the health care provider's request for video recording and the reason the health 22
care provider has requested that recording.
2. The surgical patient, or if applicable, the parent, guardian, legal custodian, 24
or person authorized by the patient under s. 146.81 (5), does not object to the video 25
(e) A surgical patient, or if applicable, parent, guardian, legal custodian, or 2
person authorized by the patient under s. 146.81 (5), may not disclose, unless the 3
surgical practitioner or other health care provider that is a subject of the video 4
recording waives confidentiality, the content of a video recording created under this 5
section except to health care providers providing care to the surgical patient, to 6
immediate family members or a person authorized by the patient under s. 146.81 (5), 7
or to an attorney or an attorney's staff for the purpose of obtaining legal advice. If 8
legal action is taken, the surgical patient may disclose the video recording to 9
additional individuals if necessary for the case, but it shall be filed under seal if 10
permitted. In all other respects, recordings under this section shall be treated as 11
patient health care records.
12(3) Entry and exit recording
. If a surgical patient requests to have his or her 13
surgical procedure recorded under sub. (2) (a), the surgical facility or its designee 14
shall also make a color video recording, including display of the time and date, of any 15
entryway to or exit from the surgical suite in which the surgical procedure being 16
recorded is taking place, during the time from which the surgical suite is being 17
prepared for the surgery of the patient being recorded until that surgical patient 18
exits the suite. A surgical facility is not required to record audio in making the 19
recording under this subsection.
20(4) Equipment and technical assistance
. A surgical facility shall have 21
available appropriate video recording equipment and technical assistance as 22
determined by the department in rules promulgated under sub. (8) to comply with 23
a surgical patient request for a recording of his or her surgical procedure or discharge 24
. 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 under sub. (2) 3
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 or discharge instructions 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 standards 21
for video recording of surgical procedures, video recording of discharge instructions, 22
and the use of video recording equipment in the surgery and discharge settings to 23
ensure such recordings are professional and of sufficient quality to accurately 24
portray what takes place during a surgical procedure or when discharge instructions 25
(b) The department may promulgate rules, as necessary, to implement and 2
administer this section, including any of the following:
1. Establishing criteria and procedures for providing notice and the option for 4
video recording under sub. (2).
2. Implementing the requirements regarding preservation and destruction of 6
recordings under sub. (9).
3. Establishing standards, procedures, and forms for advance requests for 8
recording under sub. (12).
4. Implementing the forfeiture procedures under sub. (14).