Recording Office Visits and Procedures: Pros and Cons for Healthcare Professionals

Richard F. Cahill, JD, Vice President and Associate General Counsel, The Doctors Company

“May 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? Smartphones are ubiquitous, giving patients a video and audio recorder that is always at hand. Prohibiting the use of these devices in the clinic or hospital setting is becoming increasingly more difficult.

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 was extreme, it highlights 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 during office visits are often lost or forgotten, and patients forget or do not accurately remember a significant portion of information shared during healthcare visits. Patients who have a more complete understanding of their condition and the treatment plan are more likely to be actively engaged in their care.

Despite these potential benefits, it is typically not the best course to allow patients to record the appointment. Recording devices can be disruptive and potentially intimidating to the clinician and staff. In addition, patient recordings—unlike the electronic health record—can be altered or manipulated to create an inaccurate portrayal of what actually occurred. Patient recordings can also be easily streamed or posted online, raising issues of patient and staff privacy and HIPAA compliance. In addition, recording the visit may inhibit the flow of information between the clinician and patient. Patients may be less likely to discuss sensitive health issues for fear an outside party might hear the recording.

A patient recording a visit without the clinician’s permission can result in a loss of trust, which is the basis of a strong clinician-patient relationship. Only about a dozen states nationwide, however, prohibit electronic recordings made without the explicit consent of all participants. Most states allow recordings with the consent of only one party, which means a patient may claim to have a right to make a recording regardless of whether the clinician agrees. It is important to know the specific laws concerning recordings in the jurisdiction where you practice. Regardless, it is recommended that patients be clearly advised 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 a 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. Handle any suspected violations immediately. If the 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 dismissal from the practice.

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. Encourage patients to be engaged in the conversation with “Ask Me 3,” a program that promotes clear communication through these three questions:

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

Ask patients to repeat back the information shared, and then correct any misunderstandings.

Important Policies for Recording Surgical Procedures

Practices and surgical centers must also decide whether to 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 licensing boards, the Centers for Medicare and Medicaid Services, and the Office of the Inspector General for the U.S. Department of Health and 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 practice or healthcare facility is considering making audio or video recordings, it is recommended that the following policies and procedures be considered and implemented:

• Create a written policy detailing under what circumstances a digital recording—whether audio, video, or both—may be made. 
• Indicate in the policy how the digital recording will be stored, by whom, where it will be retained, and how long it will be kept. 
• Reference in the policy the manner in which the digital document will be destroyed, consistent with federal and state privacy laws. 
• Advise patients 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 become part of the permanent record. 
• Ensure that the recording policies are being followed and that a responsible administrator conducts a periodic review to evaluate the effectiveness of the protocols.

Adopting and following these policies and procedures helps to protect the practice or facility in the event of a subsequent inquiry about the validity and completeness of the patient’s record. For additional guidance and assistance, contact the Department of Patient Safety and Risk Management at (800) 421-2368 or by email.

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