Best Practices for Virtual Court Hearings in Hospitals

November 18, 2020 | Frank P. Izzo | Cassandra Rivais DiNova | Hospitals | Litigation

The COVID-19 pandemic has had another, less-discussed effect on hospitals. Hearings that traditionally take place in hospitals – such as guardianships, retention, medication over objection, or assisted outpatient hearings – have shifted to a virtual platform.

Below are some considerations for hospital personnel participating in virtual hearings.

(1) Familiarize yourself with the technology

Due to the bar against “in-person” court appearances, New York courts have been using Skype for Business, and most recently Microsoft Teams, as their virtual platform allowing them to conduct essential hearings, including those relevant to patient services, that cannot otherwise be delayed like a typical civil matter. You will receive an email with access information for the platform from either the court or your attorney.

At least a day before the hearing, test the application on the device you plan to use during the hearing.  A prep session with your counsel is recommended for first-time users.  Find a quiet place to participate during the hearing.  A conference room or private office is preferred.  Be mindful that the camera and microphone will pick up the activity around you, and patient privacy must be observed.  To prepare for any technological issues that may arise during the hearing, have a contact person from your IT department on standby.  Consider having a backup device, such as a smartphone or tablet, ready in case your primary device does not work.  In a worst-case scenario, with the Court’s permission, you may have the option to call in to the virtual hearing without video.

(2) Prepare the technology for the patient

In most instances, the patient has the right to participate and therefore needs access to the virtual hearing via a laptop or tablet compatible with the platform.  Test the use of the application before the hearing on this device as well and arrange to have a hospital staff member who is not testifying or participating in the hearing assist the patient with the technology during the hearing.  The patient also may need to privately speak with his/her attorney during the hearing, so provide the patient with access to a telephone.  The patient should not use the virtual hearing platform for confidential attorney-client conversations, unless the platform allows for private rooms to be utilized.

(3) Tips for virtual witnesses

For witnesses testifying virtually, keep in mind that although only your head and shoulders will likely be visible to others in the hearing, you should not keep notes in front of you or on another screen.  A witness is not allowed to have notes in front of them.  Similarly, do not email or text your attorney during your testimony.  Although it is a different setting, you are still testifying under sworn oath and conversations with counsel during your testimony are not permitted.  Finally, be mindful of your facial expressions and reactions – unlike in a courtroom, your face is on the screen for all participants to see during the whole virtual court hearing.

Bear in mind that virtual hearings carry the same legal weight as traditional, in-person hearings. With a little preparation, hospital staff and patients will be able to participate in them with ease.

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