Practice of Medicine

Article

The Case of Provider vs Private Investigator

June 29, 2017

Case Scenario 1

A 46-year-old woman took her 15-year-old daughter to a pediatric practice for a routine physical. During the visit the mother became uncomfortable and felt the physician assistant (PA) repeatedly violated her personal space. Unknown to the PA, the 15-year-old daughter recorded the entire visit using her cell phone. The mother later filed a sexual harassment claim and used her daughter’s cell phone video to support her claim. After reviewing the tapes, the jury felt that there was no clear evidence of sexual harassment and the claim was dismissed. The PA was cleared of all charges.

Case Scenario 2

A 63-year-old woman with coronary artery disease was admitted for percutaneous coronary intervention (PCI). The procedure was documented as “challenging” and was complicated by difficulty achieving hemostasis at the puncture site after PCI. Immediately following the procedure, the cardiologist had a very detailed discussion with the patient’s family regarding the difficulties experienced during PCI. Unbeknownst to the cardiologist, the entire conversation was recorded by the patient’s son. Hours after the procedure, the patient was noted to be hypotensive and an evaluation revealed a retroperitoneal hematoma. The patient was taken to the operating room in an attempt to control bleeding, however, she went into cardiac arrest and died. The patient’s family sued for negligence and used the audio recording to support their case.

Case Scenario 3

The husband of a 62-year-old woman with difficulty walking called his wife’s physician regarding his concerns about her care and delays in obtaining recommended referrals. During the discussion, the physician became defensive and a heated conversation ensued. The patient’s husband recorded the phone conversation and used the recording to support his claims that the physician was negligent in not expediting referrals.

Discussion

Though healthcare providers may view secret recordings by patients as a violation of their privacy, several states allow covert recordings to be used in a court of law. It is legal in many states for patients to record their healthcare providers without their knowledge. Healthcare providers should therefore remain mindful of the fact that they could be recorded at any time and operate accordingly.

Patients voice a number of reasons for recording their health practitioners, ranging from using the recording to help them remember the provider’s recommendations, to gathering evidence of sub-optimal care. Not all recordings are made with sinister intent, however, even recordings obtained for innocent reasons could later be used against a provider. Healthcare providers should always conduct themselves in a manner that would not cause concern if they later discovered that they had been secretly recorded.  

The case scenarios presented highlight some key points that healthcare providers should consider regarding patients recording (openly or covertly) their healthcare providers.

  • The fact that a patient records an encounter with their healthcare provider does not mean that the recording will help the patient’s case if they sue their provider. A recording may actually support the health provider’s defense as noted in the first clinical case presented.
  • Healthcare providers should be forthcoming about complications that occur. The fact that a provider is recorded admitting that a complication occurred does not automatically mean that they will not have a defensible case if sued. A decision regarding whether the healthcare provider was negligent will be based on several factors including whether his or her actions were within the standard of care. The possibility that a patient or family member could secretly record a conversation should not deter healthcare providers from being open and honest with patients and informing them of bad outcomes or complications.
  • Healthcare providers should remain calm and collected when communicating with patients and their family members. It is much better to acknowledge and address the concerns of patients and families than to become defensive and hostile. Maintaining a cool, calm demeanor may help to diffuse the situation. Acknowledging these concerns will allow the patient or family member to feel validated and may help to preserve the relationship with the patient and the provider.

Healthcare providers should aim to foster a good rapport with patients and their family members. If a provider discovers that an encounter with a patient was recorded, the provider should have an honest discussion with the patient about the reason for the recording. Providers should avoid making patients feel as though they are opposed to being recorded, since this may heighten suspicions and could lead patients to record encounters covertly in the future. Healthcare providers cannot prevent patients from recording their clinical encounters. The best strategy may be for providers to provide care as though they are “on camera” at all times.

For more information on this topic please review our article titled “Docs on Candid Camera: Patients Recording Clinical Encounters” at https://www.magmutual.com/learning/article/docs-candid-camera-patients-recording-clinical-encounters

Disclaimer

The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.