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When a Camden, N.J., hospital refused to let him photograph an injured client, saying it didn’t allow lawyers with cameras into its trauma unit, Thomas Vesper felt his client’s interest — as well as his own dignity as a lawyer — was at risk. “Other lawyers told me, ‘Why not just sneak in?,’ ” says Vesper, who needed the photo as evidence in a suit on behalf of Efrain Curiel, a 45-year-old Vineland, N.J., man injured in a Nov. 10 car accident. “ I didn’t want to do that. I’m not going to sneak in there like I’m back in the Marines.” Instead, he asked a Camden County judge to override Cooper Medical Center’s ban on “legal photography” in its intensive care unit, arguing that Curiel was on life support and was not expected to survive more than a few days. Therefore, the family did not have the luxury of waiting until he could be moved to a different area of the hospital to have the pictures taken. Superior Court Judge David Eynon upheld the hospital’s rule, but on the day before Thanksgiving, the Appellate Division sided with Vesper. Judge Dennis Braithwaite ordered the hospital to allow the photographs. Curiel died on Nov. 25, the day after the pictures were taken. Still, the court’s ruling showed considerable deference to the rule, which the hospital said was adopted to prevent the disruption caused by lawyers taking photographs around critically ill patients. Braithwaite limited Vesper to six photographs and said hospital personnel could escort him to and from his client’s bed. The court also said its ruling was limited to the facts of this case, meaning that the hospital rule stands. “The hospital has not been required by the ruling to negate the rule,” says Gary Lesneski, a partner at Haddonfield, N.J.’s Archer & Greiner, who represents Cooper Medical Center. Lesneski says courts normally defer to a hospital’s policies — so long as they are rational — and that the Appellate Division’s ruling was based on unique and emergent circumstances. According to Lesneski, the hospital needs such a rule to protect the patients in the trauma unit. “This rule is an effort to assure that our staff’s focus would be on taking care of patients and avoiding disruption in the unit,” contends Lesneski, who was assisted in the case by David Heim. Lesneski says hospital personnel gave testimony about the type of problems that occurred when lawyers took photos of their clients — and took up staff time in the process. There were times, for example, when lawyers asked staff to undress wounds so they could be photographed, or asked that patients be moved around for better camera angles. There were also occasions, says Lesneski, when lawyers that were given access to photograph their client began to take pictures of other patients as well. Lesneski notes that such photography is allowed in other areas of the hospital, but that there are different rules in the trauma intensive care unit, which he says is devoted to “treating the sickest of the sick.” There is a higher level of staff activity in the unit, which has a ward-like layout, he says. Vesper, of West Atlantic City, N.J.’s Westmoreland, Vesper & Schwartz, doesn’t dispute the hospital’s need to protect patients and its staff from disruption. He says he would have complied with the rule had there been any chance of moving his client to another area of the hospital. But he doesn’t understand why he had to file suit to get the hospital to make the type of common-sense exception recognized by the court. He says this wasn’t an instance of overreaching; Curiel was a long-time client, and his family wanted the photographs before he died. “They dug in,” Vesper says of the hospital’s defense of its rule. “I just need[ed] to have the rule interpreted with some reasonable common sense.” Vesper also contends that the hospital’s general hostility toward lawyers was at the heart of the refusal to bend its rules. The hospital has the attitude, he says, that “if you let a lawyer in, somehow it is going to put the hospital at risk.” He says the hospital feared making an exception that would lead to “hordes of lawyers” seeking entrance to the hospital’s sickest wards — and possibly discovering acts of malpractice. Lesneski denies that the hospital’s rule is motivated by any such animus toward attorneys. But he says that the problems caused by photography in the hospital “are probably exacerbated when dealing with lawyers, who want a [big] production to go on” when taking pictures.

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