Question: During an office visit, the patient used a smartphone to record his conversation with the doctor. Which of the following statements is best?
A. This is an intrusion into a private and confidential physician-patient encounter and violates laws against eavesdropping and wiretapping.
B. Recordings are rarely made in the doctor’s office.
C. Both parties must consent before the patient or doctor can legally make such a recording.
D. Surreptitious recording by one party is always illegal.
E. All are incorrect.
Scholars from Dartmouth recently published their viewpoint on this topic in the Aug. 7, 2017, issue of JAMA.1 Many individuals believe that taping or recording a private conversation is per se illegal.
This is a misconception. Although it is a serious felony to violate wiretapping laws, in fact every jurisdiction permits the taping or recording of doctor-patient conversations where there is all-party consent. A majority of states actually allow the recording even if one party has not given his/her consent. This one-party consent rule is the law in 39 states, including Hawaii and New York. On the other hand, 11 states, such as California, Florida, Massachusetts, and Washington, deem such recordings illegal. A listing of the law in the various states can be found in the JAMA article, in which the authors call for “clear policies that facilitate the positive use of digital recordings.”
In a 2011 case against the Cleveland Clinic, a patient died of a cardiac arrest from hyperkalemia 3 days after elective knee surgery.2 The patient’s children had made a covert recording of a meeting with the chief medical officer when discussing the incident. The hospital attempted to bar the use of the recording, claiming that the information was nondiscoverable under the “peer review” privilege.
Both the trial court and the court of appeals disagreed, being unconvinced that such discussions fell within peer review protection. That the recording was made surreptitiously was not raised as an issue, as Ohio is a one-party consent state, i.e., the law permits a patient to legally tape his/her conversations without obtaining prior approval from the doctor.3
There are clear advantages to having a permanent record of a doctor’s professional opinion. The patient can review the information after the visit for a better understanding or for recall purposes, even sharing the information with family members, caregivers, or others, especially where there is a lack of clarity on instructions.4 In the area of informed consent, this is particularly useful for a reminder of medication side effects and potential complications of proposed surgery.
However, many doctors believe that recordings may be disruptive or prove inhibitory to free and open discussions, and they are concerned about their potential use should litigation arises.
Risk managers and malpractice carriers are divided in their views. For example, it has been stated that, “at the Barrow Neurological Institute, in Phoenix, Arizona, where patients are routinely offered video recordings of their visits, clinicians who participate in these recordings receive a 10% reduction in the cost of their medical defense and $1 million extra liability coverage” (P.J. Barr, unpublished data, 2017, as cited in reference 1). Other carriers are not as supportive, discouraging their insureds from allowing recordings to be made.
In the majority of jurisdictions, recordings are legal if consented to by one of the parties. This means that recordings by the patient with/without consent from or with/without knowledge of the doctor are fully legitimate. It also means that the recordings will be admissible into evidence in a courtroom, unless the information is privileged (protected from discovery) or is otherwise irrelevant or unreliable.
On the other hand, in states requiring all-party consent, such recordings are illegal absent across-the-board consent, and they will be inadmissible into evidence. This cardinal difference in state law raises vital implications for both plaintiff and defendant in litigation, because the recordings may contain incriminating or exculpatory information.
Recordings of conversations in the doctor’s office are by no means rare. A survey in the United Kingdom revealed that 15% of the public had secretly recorded a clinic visit, and 11% were aware of someone else doing the same.5 The concerned physician could proactively prohibit all office recordings by posting a “no recording” sign in the waiting room in the name of confidentiality and privacy. And should a physician discover that a patient is covertly recording, risk managers have suggested terminating the visit with a warning that a repeat attempt will result in discharge.
Like it or not, recordings are here to stay, and the omnipresence of modern communications devices such as smartphones, tablets, etc., is likely to increase the prevalence of recordings. A practical approach for practicing physicians is to familiarize themselves with the law in the individual state in which they practice and to improve their communication skills irrespective of whether or not there is a recording.
They may wish to consider the view attributed to Richard Boothman, JD, chief risk officer at the University of Michigan Health System: “Recording should cause any caregiver to mind their professionalism and be disciplined in their remarks to their patients. … I believe it can be a very powerful tool to cement the patient/physician relationship and the patient’s understanding of the clinical messages and information. Physicians are significantly benefited by an informed patient.”6
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2. Smith v. Cleveland Clinic, .
3. Ohio Revised Code 2933.52.
6. “Your office is being recorded.” Medscape, April 3, 2018.