Doctor, can I record our conversation today?

Have you ever heard that question from a patient or a patient’s family member? Or have you ever been worried a patient might record the visit without asking permission? As smartphones have become ubiquitous, giving patients a video and audio recorder that’s always at hand, the question of whether or not these devices should be allowed in the clinic or hospital setting is becoming increasingly more common.

A high-profile case involved a patient who accidentally recorded his colonoscopy, capturing derogatory remarks from the anesthesiologist while he was under anesthesia. The patient sued for malpractice and was awarded $500,000. While this case is extreme, it has raised the importance of addressing the issue in each practice and hospital.

 

Patients: To record or not to record?

The issue of allowing patients to record their appointments requires balancing potential privacy and liability risks with the potential benefits of improved patient recollection of instructions and treatment adherence. Patient pamphlets and other educational materials handed out at office visits are often lost or forgotten, and patients forget or remember inaccurately a significant portion of information shared at doctor visits. Patients who have a better and more complete understanding of their condition and the treatment plan are more likely to be actively engaged and involved in their healthcare.

Despite these potential benefits, it’s typically not the best course to allow patients to record the appointment. The recording devices could be disruptive and could be potentially intimidating to physicians and staff. In addition, these recordings—unlike the electronic health record—can be altered or manipulated to create an inaccurate portrayal of what actually occurred. These recordings can also easily be streamed or posted online, raising the issue of patient and staff privacy and HIPAA compliance. In addition, recording the visit may inhibit the flow of information between the doctor and patient. Patients may be less likely to be open about sensitive health issues because of the fear that the recording might be listened to by an outside party.

If a patient records a visit without the doctor’s permission, that can result in a loss of trust, which is the basis of a strong physician-patient relationship. Only about a dozen states nationwide prohibit electronic recordings done without the explicit consent of all participants in the encounter. It is important to know the specific laws concerning recordings in the jurisdiction where you practice. Regardless, it is recommended that patients be advised unequivocally that digital recordings by handheld devices, such as smartphones, are prohibited on the premises in order to protect the privacy of other patients and staff in compliance with federal and state privacy laws.

Post this notice clearly on your practice website, in the conditions of treatment signed by the patient at the outset of the relationship, and as office signage near the reception window. Suspected violations should be handled immediately. If this policy is violated, meet with the patient in a confidential setting to discuss the issue and reiterate the office policy. Depending on the circumstances and the status of the patient’s current episode of care, advise the patient that further violations may result in termination of the physician-patient relationship.

If patients ask to record the visit, encourage them instead to take notes or to have a trusted family member or friend join them for the office visit to help take notes, remember information, and ask questions. Doctors can also encourage patients to be engaged in the conversation with “Ask Me 3,” a program that promotes clear communication through these three main questions:

  1. What is my main problem?
  2. What do I need to do?
  3. Why is it important for me to do this?

Doctors should also ask patients to repeat back the information shared, and then correct any misunderstandings.

 

Important policies for recording surgical procedures

Practices and surgical centers also must decide whether they should video-record clinic visits or operative procedures. Office practices may want to record patient encounters to document when the informed consent occurred. Surgical centers may want to record surgeries for educational purposes.

It is important to note that this additional documentation will become a part of the record and can be subsequently accessed by government agencies responsible for healthcare oversight, such as state medical boards, the Centers for Medicare and Medicaid Services, and the Office of the Inspector General for the United States Department of Health & Human Services, among others. Law enforcement will also be able to secure a copy with a search warrant or other court order. A patient may also obtain the recording with a valid HIPAA-compliant authorization.

If a medical group or healthcare facility is considering doing audio or video recordings, it is recommended that several factors be considered and implemented:

  1. The practice or facility should create a written protocol detailing under what circumstances a digital recording—whether audio, video, or both—may be done.
  2. The policy should also indicate how the digital recording will be stored, where it will be retained and by whom, and for how long it will be kept.
  3. Any such protocol should reference the manner in which the digital document will be destroyed, consistent with federal and state privacy laws.
  4. Patients should be advised in advance that a digital recording is being considered. The patient should sign a written release that explains the reasons for the recording. As with all consent forms, the signed authorization should be placed in the chart as part of the permanent record.
  5. The practice or facility should put a procedure in place to ensure that the policies are being followed and that a responsible administrator conducts a periodic review to ensure the effectiveness of the protocols. Adopting and following these procedures helps to protect the practice or facility in the event of a subsequent inquiry as to the validity and completeness of the patient’s chart.

This post was sponsored by The Doctors Company, the nation’s largest physician-owned medical malpractice insurer.

Richard Cahill, JD
Richard Cahill is Vice President and Associate General Counsel for The Doctors Company. Mr. Cahill provides legal support to the Claims and Patient Safety Departments. He has specialized in various facets of healthcare litigation for more than 25 years, including the defense of hospital and physician professional liability claims, managed care contract disputes, and related business torts. His principal clients have included Cigna, Kaiser Permanente, and Tenet Health Systems. Mr. Cahill has completed in excess of 175 trials and binding arbitrations during his career and has been appointed as an arbitrator in more than 350 cases involving healthcare issues. Mr. Cahill received his undergraduate degree summa cum laude from UCLA in 1975 and his juris doctor from Notre Dame Law School in 1978. He lectures frequently around the country on topics related to the healthcare industry. He has an AV Preeminent Rating from Martindale-Hubbell.

8 COMMENTS

  1. Clearly written by an attorney whose clients are doctors and not a reflection of patient centered care. What do you have to hide? Doctors now often have scribes in the room so it is only fair for the patient to be able to record the visit as well.

  2. Is it possible, just possible, maybe even a little *tiny* bit, that preventing recordings also prevents evidence that could be useful in a malpractice claim?

  3. I wish my patients would record our sessions. How often do they even remember the simple things I tell them, much less the more complex ideas I may share. If they could record my advice and listen to it over and over, maybe they would understand and actually follow some of my suggestions. This article is what you get when you ask a lawyer to comment on medical practice. Bad advice.

  4. This position is anachronistic and headed in the wrong direction on many levels. Healthcare Advocacy Coaching considers recording doctor visits as a basic tenet of advocating for one’s self. During most visits doctors are invariably rushed, do not focus on patient needs /questions/ concerns but moreso on what the doctor wants to discuss. The majority of doctors speak in couched language, using sophisticated language and medical terminology that eludes all but the most medically sophisticated patients.
    Patients need to record the session so that they can review it repeatedly at home, slowly dissecting each chunk / topic that was discussed.
    Anxiety levels surrounding doctor visits are very high for most people and their anxiety (assiduously documented and reported) clouds their ability to ask questions, make comments, and advocate for their own needs. They are vulnerable, fearful, unsure and sometimes a bit confused about what the doctor is saying. Recording the session is currently the only option they have to eventually understand what happened during the interaction.
    All Healthcare Advocacy coaches are advising patients to:
    1. Record their sessions
    2. Change doctors if the doctor won’t allow them to record.
    Good luck with your plan.

    • Thank you for sharing your thoughts—I think we all agree that patient engagement and understanding is very important, as is trust between doctor and patient. We offer many resources on our site (thedoctors.com) to help doctors address issues with communication, including how to share information with patients who have varying levels of health literacy, using the repeat-back method, and how to involve family members or trusted friends to assist the patient during and after appointments. With all patient engagement methods, we try to examine the benefits and risks for both doctor and patient as we did here.

  5. This commentary is wrong on so many scores at once – including advising doctors to tell patients things about the law in the relevant jurisdiction which may be simply untrue. There is no good reason to try to prevent a patient taking an audio-recording of their consultation home. Hostility to this well-established patient initiative is in my view both unethical and counter-productive. It will simply ensure that the practice continues to be carried out predominantly covertly. Happy with that docs?

    • We encourage doctors to know the specific laws concerning recordings in the jurisdiction where they practice and to use that to guide the policies in their practice. A strong physician-patient relationship with mutual trust is key, and we highly encourage doctors to use programs such as Ask Me 3 (www.thedoctors.com/AskMe3) that teach both patient and doctor how to help build that relationship and have effective conversations during office visits.

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