2019 - 2020 LEGISLATURE
February 14, 2020 - Introduced by Representatives Sinicki, Emerson, Horlacher,
C. Taylor and Thiesfeldt, cosponsored by Senators L. Taylor and Johnson.
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
5providing a penalty.
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 surgical or other invasive
procedure is performed upon a patient under conscious sedation, deep sedation, or
general anesthesia. 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. When recording of a surgical
procedure is requested, the facility must record with color video and audio all activity
in the surgical suite from the time preparation for the surgery begins until all activity
related to the surgery, including cleanup, is complete. If the surgical patient is
incapacitated, the surgical facility is required to provide another authorized person
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. A
patient may also request that his or her discharge instructions be recorded. The
surgical facility may determine if these instructions will be videotaped or
audiotaped. 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 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 provider 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.
The bill also allows the Department of Health Services to grant limited waivers from
the requirements, if the facility provides evidence of a compelling need, financial or
In return for exercising the option to have a surgical procedure recorded, under
the bill, the surgical patient or another person on behalf of the patient may not
disclose the recording except 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 patient health care 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. 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. A surgical patient may also request up to two free
copies of his or her discharge instructions — one for the patient, and one for another
person designated by the patient.
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, the fees, the 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. The bill also provides penalties for
interference with an advance request for recording, and for unauthorized disclosure
of a recording.
Under this bill, DHS 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.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
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) “Conscious sedation” is a drug-induced depression of consciousness during 5
which patients respond purposefully to verbal commands, either alone or 6
accompanied by light tactile stimulation.
(b) “Deep sedation” is a drug-induced depression of consciousness during 8
which patients cannot be easily aroused but respond purposefully following repeated 9
or painful stimulation.
(c) “Discharge instructions” means care instructions provided to a patient at 11
or near the time of a patient's exit or release from a surgical facility after a surgical 12
(d) “General anesthesia" means a temporary status commonly produced by the 2
administration of certain intravenous drugs and inhaled gases that cause a patient 3
to be unconscious and unable to feel pain during a medical procedure.
(e) “Guardian” means the person named by the court having the duty and 5
authority of guardianship.
(f) “Health care provider" means a person or entity described under s. 146.81 7
(1) (a) to (p) and includes any surgical facility.
(g) “Incapacitated" means unable to receive and evaluate information 9
effectively or to communicate decisions to such an extent that an individual lacks the 10
capacity to manage his or her health care decisions.
(h) “Legal custodian” means a person, other than a parent or guardian, or an 12
agency to whom legal custody of the child has been transferred by a court, but does 13
not include a person who has only physical custody of the child.
(i) “Patient health care records" has the meaning given in s. 146.81 (4).
(j) “Surgical facility" means a hospital, as defined in s. 50.33 (2), an ambulatory 16
surgical center, as defined in 42 CFR 416.2
, or any other place where a surgical 17
procedure is performed.
(k) “Surgical patient" means a patient who is scheduled to undergo a surgical 19
(L) “Surgical practitioner" means a physician, surgeon, or osteopath under s. 21
990.01 (28), an individual licensed to practice dentistry under ch. 447, and any other 22
individual who holds a valid license or other credential that allows him or her to 23
perform a surgical procedure.
(m) “Surgical procedure” means a surgical procedure for which a patient is 25
under conscious sedation, deep sedation, or general anesthesia. “Surgical
procedure” includes a colonoscopy or similarly invasive procedure if performed under 2
conscious sedation, deep sedation, or general anesthesia.
3(2) Option for recording.
(a) 1. A surgical facility shall provide a surgical 4
patient the option to have the surgical facility or the surgical facility's designee make 5
a video recording of the patient's surgical procedure. For purposes of any recording 6
of a surgical procedure made under this subdivision, the surgical facility or its 7
designee shall make a color video recording, including both audio and video and 8
display of the time and date. All areas of the surgical suite, including entrances and 9
exits, must be in view on the recording and audible. The surgical facility or its 10
designee shall begin the recording of a surgical procedure under this subdivision 11
when preparation of the surgical suite for that surgical patient's surgical procedure 12
starts and continue the recording through the period of the cleanup after that 13
procedure and until all activity in the surgical suite related to the procedure recorded 14
2. A surgical facility shall also provide a surgical patient the option to have his 16
or her discharge instructions, as given by the patient's doctor or other health care 17
provider, recorded. If a patient chooses to have his or her discharge instructions 18
recorded, the recording may be audio only or videotaped, including audio, at the 19
option of the surgical facility.
(b) 1. A surgical facility shall notify a surgical patient of the option to have a 21
recording made under par. (a) and of the procedures, the fees, the 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, the fees, the conditions, the surgical 2
practitioner's request option, and the advance request option.
3. If a surgical patient is incapacitated, a surgical facility shall notify a person 4
authorized by the patient under s. 146.81 (5), if available, or, if not, a relative of the 5
patient of the option and information under subd. 1. and allow that person to make 6
a decision regarding whether to have a recording under par. (a).
(c) A surgical practitioner who is scheduled to participate in a surgical patient's 8
surgical procedure may request that the procedure be video recorded under the 9
procedures described in this subsection. The surgical facility shall comply with the 10
surgical practitioner's request if all of the following are true:
1. The requesting surgical practitioner has informed the surgical patient or, if 12
the patient is a minor, a parent, guardian, or legal custodian, of the surgical 13
practitioner's request for video recording and the reason the surgical practitioner 14
has requested that recording. If the patient is incapacitated, the requesting surgical 15
practitioner shall inform a person authorized by the patient under s. 146.81 (5), if 16
available, or, if not, a relative of the patient.
2. The surgical patient or other person informed under subd. 1. does not object 18
to the video recording.
(d) A patient's doctor or other health care provider who will administer a 20
patient's discharge instructions may request that the patient's discharge 21
instructions, as given by the health care provider, be recorded under the procedures 22
described in this subsection. The surgical facility shall comply with the health care 23
provider's request if all of the following are true:
1. The requesting health care provider has informed the patient or, if 25
applicable, a parent, guardian, legal custodian, or person authorized by the patient,
of the health care provider's request for recording and the reason the health care 2
provider has requested that recording.
2. The surgical patient or, if applicable, the parent, guardian, legal custodian, 4
or person authorized by the patient under s. 146.81 (5) does not object to the 5
(e) 1. Except as otherwise provided under this subsection, no surgical patient 7
or person on behalf of a surgical patient may disclose, unless the surgical practitioner 8
or other health care provider that is a subject of the recording waives confidentiality, 9
the content of a recording created under this section except to health care providers 10
providing care to the surgical patient, to immediate family members or a person 11
authorized by the patient under s. 146.81 (5), or to an attorney or an attorney's staff 12
for the purpose of obtaining legal advice. If legal action is taken, the surgical patient 13
or an attorney for the surgical patient may disclose the recording to additional 14
individuals if necessary for the case, but the recording shall be filed under seal if 15
permitted by the court. In all other respects, recordings under this section shall be 16
treated as patient health care records.
2. Notwithstanding the restrictions on disclosure under this paragraph, a 18
surgical patient or a person on behalf of a surgical patient may disclose his or her 19
discharge instructions to one or more persons designated by the surgical patient to 20
assist the surgical patient with postsurgical care, and one person designated by the 21
surgical patient may receive a free copy of the surgical patient's discharge 22
instructions as set forth under sub. (10).
3. Notwithstanding subds. 1. and 2. and sub. (10), a surgical facility or surgical 24
practitioner may, if authorization is granted under sub. (3), use a copy of a recording 25
made under this subsection for teaching or research purposes outside the network
of the surgical facility and if the surgical patient's personal identifying information 2
is redacted or if the surgical patient or other person authorized to request or consent 3
to a recording under this subsection on behalf of the patient expressly consents, in 4
writing, to the use and disclosure. Notwithstanding any other provision of this 5
section, a surgical facility or surgical practitioner may, if not for teaching or research 6
purposes outside of the network of the surgical facility, be permitted to use a 7
recording made under this subsection without informed written confirmation under 8
sub. (3) if the disclosure is otherwise permitted under s. 146.82 or 146.83.
9(3) Written confirmation.
Before proceeding with a recording under sub. (2), 10
a surgical facility shall obtain from the surgical patient or other person authorized 11
to request or consent to a recording under sub. (2) on behalf of the patient, 12
confirmation, in writing, authorizing the recording of the surgical patient's surgical 13
procedure. If a surgical facility or surgical practitioner intends to use a recording as 14
described under sub. (2) (e) 3., the surgical facility shall provide written notice of that 15
proposed use to the surgical patient or other person authorized to request or consent 16
to a recording under sub. (2) on behalf of the patient, and obtain written 17
authorization of that use of the recording.
18(4) Equipment and technical assistance.
A surgical facility shall have 19
available appropriate recording equipment and technical assistance as determined 20
by the department in rules promulgated under sub. (8) to comply with a surgical 21
patient request for a recording of his or her surgical procedure or discharge 22
If a surgical patient is a minor child, a parent, guardian, or legal 24
custodian may request that a recording be made of the minor child's surgical 25
procedure or discharge instructions under sub. (2) (a).
1(6) Exception for emergencies.
(a) Notwithstanding sub. (2), a surgical 2
facility is not required to provide the option of a video recording under this section 3
if the surgical practitioner determines in the exercise of his or her professional 4
judgment that either of the following is true:
1. Immediate surgery is necessary to avert death.