Should Patients Be Allowed to Record Conversations with Their Doctor?

What are the practical and legal ramifications?

In this edition of “The Wired Practice,” Ron Harman King of Vanguard Communications looks at the legally sticky issue of patients recording their conversations with their doctors. Legalities aside though, King says physicians have a lot to gain by allowing recordings.

Watch the video on MedPage Today

Video transcript

If you keep up with the news, you may know that police are not the only professionals who witnesses are recording on their cell phones these days. Doctors can be just as susceptible to being captured on pocket-size video devices, with sometimes momentous consequences.

For example, in a well-publicized case in 2015, a jury awarded a patient $500,000 after a Virginia anesthesiologist mocked him while he was under sedation during a colonoscopy. The man had left his cell phone on and in his pocket during the out-patient procedure. When he listened to the playback later, he heard members of the medical team joking about him having syphilis, Ebola and tuberculosis. Both physicians in the room – an anesthesiologist and a gastroenterologist – also disparaged him and other patients for what they described as having bad attitudes.

Months later, a Texas woman hid a tiny recorder in her hair during surgery for acute abdominal pain. During the operation, members of the surgical team made fun of her belly button and erupted into “peals of laughter,” according to one news report. The anesthesiologist also called her a “retard.” And the surgeon said he felt sorry for her husband and called her by a nickname that was a probable racial slur.

In 39 states, you do not need to give consent to be recorded

These may be extreme cases, but the ubiquity of smartphones raises an importunate question: Should patients be able to record their doctors? The question raises legal, ethical and practical considerations. Warning: I’m not a lawyer, so my quick answer on the legal components is, consult local legal counsel. Laws vary from state to state, and my experience and some formal legal study leaves me with the strong impression that privacy is just about the murkiest area of law. States are widely split on the legality of recordings: Eleven require all parties to grant consent, while 39 states plus the District of Columbia require only what’s called one-party consent.

Legalities aside, however, my longer, practical answer is … why the heck not, especially if a patient asks for a doctor’s blessing first and it’s clear the patient’s intent is for her elucidation? To be sure, I can think of some arguments against allowing a patient to record a doctor at work, but stronger ones for it.

Should you choose to record conversations with patients, how do you protect the PHI?

Among the pros and cons, one con is the complexity of HIPAA and privacy regulations. If the patient owns and keeps a sole copy of a recording, the provider is probably off the hook, as the patient can do nearly anything she wants with that information, as long as she doesn’t violate others’ privacy rights. Remember, privacy regulations don’t prevent patients from disclosing their own protected health information. But if the provider maintains a copy of the recording, then he or she has legal responsibility to safeguard it accordingly as PHI.

This is of particular concern to a handful of pioneering medical practices who are routinely recording patient encounters and storing them in their electronic health record systems for patients to access through a patient portal. Additionally, the law is unclear on who owns the recording under these circumstances, the patient or the practice. I applaud the initiative of those pioneers. I just advise them to protect against hackers – and to seek local legal counsel.

Then there’s telemedicine. You the doctor may be consulting online with a patient in another state. One of you may be in a so-called “all-party” jurisdiction, while the other is in a “one-party” jurisdiction. Again, seek local legal counsel.

Lastly, another con is the risk of increased liability. This risk probably resonates most among high-risk specialties such as neurosurgery, emergency medicine, obstetrics and anesthesiology. I don’t dismiss their concerns at all. But I do suggest keeping two factors in mind. First, most patients are far more likely to want recordings for their own edification, not as fodder for lawsuits. Second, if there is legal trouble down the line, that recording may actually help rather than hurt the doctor.

Patients who want to record their doctor’s instructions may have better outcomes

Some might suspect that a patient’s desire to record a doctor’s words illustrates distrust and a deteriorating relationship. But there is another side to the coin – bringing us to several points in favor of patient recordings.

Point one is that anyone aware of being recorded – including yours truly at this very point in time – is likely to slow down and chose words carefully. Many a clinician could benefit from such deliberation and improved communications.

Point two, a patient who’s captured a doctor’s every word for further reference stands to act in greater compliance to directions and guidance and respond with better outcomes. This is all the more likely when a patient has just received bad news outside the company of a friend or family member, and may be absorbing half or less of the subsequent conversation.

Point three is that a patient recording in reality may be demonstrating higher trust and respect for the caregiver. In the throes of a health crisis, nothing might be more soothing to a distressed patient than replaying the calm, reassuring words of an experienced professional.

The final argument for agreeing to recordings is that if you say No, what then becomes of patient trust? In this scenario, wouldn’t a patient think to herself, Well, what does my doctor have to hide?

Whatever your view, patient recordings are only likely to swell in popularity, so prepare for the future. A couple of studies have found that 10-15 percent of patients may already be recording doctors secretly. And with that in mind, what else can I say but smile, you’re on “Candid Camera.”