"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 $500,000.1 While this case is extreme, it has raised the importance of addressing the issue in each practice and hospital.
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:
Doctors should also ask patients to repeat back the information shared, and then correct any misunderstandings.
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:
by Rich Cahill, Vice President and Associate General Counsel, The Doctors Company
1Video in the Exam Room: Should You Allow Patients to Record Visits? Medical Economics. September 22, 2015. http://medicaleconomics.modernmedicine.com/medical-economics/news/video-exam-room-should-you-allow-patients-record-visits?page=0,0. Accessed January 19, 2016.
The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.