Practice of Medicine

article

Docs on Candid Camera: Patients Recording Clinical Encounters

By: Marshaleen King, MD
Executive Summary 

In most states, patients can secretly record healthcare providers without the provider’s consent. Many patients who record encounters with providers do so covertly in order to obtain evidence of poor-quality care or out of fear of being denied permission to record openly. Providers should consider the benefits and drawbacks of patients recording sessions and plan a response when they discover a patient is recording. 

Recommended Actions  
  • Consider the reasons why a patient may want to record an interaction with a provider. 
  • Have open and honest discussions with patients about why they can or cannot record encounters. 
  • Posting signs stating that the use of cell phones or recording devices is prohibited in certain areas due to privacy concerns of fellow patients. 

Advances in technology, including the advent of smart phones, have made it easier for patients to record their encounters with healthcare providers. However, providers often have mixed reactions to the concept of patients recording clinical encounters. Many physicians are strongly against patients recording them, while some physicians endorse the benefits of such recordings. On the other hand, numerous patients express a desire to record clinical encounters to improve their ability to recall the information provided and follow through with recommendations. The major concern for practitioners is that the recording could be used against them in a legal case at some point. 

State laws vary on whether such recordings are allowed. The majority of states only require one-party consent, meaning only one person needs to consent to the recording for it to be legal, even if that one party is the person operating the recording device. Only a few states require consent from all parties for a recording to be legal. 

Thus, in the majority of states, patients can secretly record their healthcare providers without fear of legal repercussions. Healthcare providers should therefore remain mindful of the fact that they could be recorded at any time and operate accordingly. Articles on this subject recommend that physician practices have a policy regarding patients recording encounters, but few of the articles provide any recommendations for these policies. 

Methods of Recording Clinical Encounters 

Recordings may occur overtly (in the open with the consent of the provider) or covertly (in secret). Technological devices are now small enough to be easily concealed in pockets, purses or other containers, making it easy to record a clinical encounter without a provider’s knowledge. 

Posting signs that forbid recordings and/or having policies that discourage recordings is not guaranteed to stop patients from recording encounters and may actually result in patients recording visits covertly. Some sources recommend posting signs stating that the use of cell phones or recording devices is prohibited in certain areas due to concerns about the privacy of fellow patients, but even this strategy doesn’t guarantee that patients won’t record encounters covertly. When making the decision about your policy, consider whether or not you would prefer to know when a patient is recording. A better approach may be to have an open, honest discussion with patients about recording encounters. 

If a practitioner discovers that a patient has been secretly recording their encounter, it may be best to let the patient know you are aware they are recording and then ask them why they are recording the session. The decision of how to proceed from that point may vary depending on the patient’s response. 

If the patient is recording sessions to remember what is said, then the provider may choose to allow the session to be recorded. If, on the other hand, the patient states that they are recording the sessions because they want to have evidence of what occurred “in case something goes wrong,” then the provider may choose to let the patient know that they do not permit sessions to be recorded and share their concerns with the patient. 

The provider may want to share with the patient the fact that recording visits could affect the trust in their relationship and may alter the interaction between him and the patient. Although some physicians feel comfortable being recorded openly, some may become uncomfortable and use more formal, rigid language that could interfere with creating a comfortable atmosphere for open communication between the practitioner and the patient. 

Reasons for Recording and Sharing Clinical Encounters 

Patients often indicate that they record encounters to help them remember information. Some patients record clinical encounters so they can share the information with family members, particularly when they require assistance from family regarding their care. Sometimes, patients record encounters to document the quality of care and use them to support claims of issues with the care provided. 

Although patients specifically trying to obtain evidence of poor quality of care may be more likely to record covertly, individuals recording solely to enhance memory may also choose to record covertly because they fear being denied permission to record. 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. 

Although laws like HIPAA protect patients from disclosure of their medical information by providers, patients are free to share their health information as they choose. Thus, patients who wish to share information with a larger audience can disseminate recordings of their clinical encounters via social media. On the other hand, practitioners typically have no recourse if a patient makes a recording public. In addition, if a provider comes across a recording from a patient on social media, they cannot respond to it because that in and of itself would be a HIPAA violation. 

Pros and Cons of Recording Clinical Encounters 

Potential benefits of patients recording clinical encounters are as follows: 

  • May enhance communication between practitioners and patients and comprehension of information by the patient. 
  • May improve adherence to treatment due to a more accurate understanding of recommendations. 
  • Practitioner performance may be enhanced. For instance, practitioners may make a greater effort to communicate thoroughly and effectively. 
  • May confirm informed decision-making. 
  • May serve as proof of high-quality care. 

The disadvantages of patients recording clinical encounters are as follows: 

  • May be used as evidence of poor quality care. 
  • Things said or not said could be used against the practitioner. Information recorded could be misunderstood if taken out of context. 
  • Secret recordings may leave physicians feeling violated and vulnerable. 
  • Patient recordings, particularly when done covertly, may change the dynamics of the physician-patient relationship and have the potential to destroy trust. 
  • Recordings shared online could damage the reputation of a physician and/or a medical practice. 

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. 

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

First, the fact that a patient records an encounter with a 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. 

Second, 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 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. 

Finally, 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 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. 

Lessons Learned 
  • Establish a protocol for how and when a patient may be allowed to openly record physician encounters.  
  • Educate physicians and clinical staff on the benefits of allowing patients to record sessions, such as enhancing a patient’s memory of the encounter or assisting a patient to follow prescribed treatment plans accurately. 
  • Assume that each patient encounter is being recorded in order to routinely follow an appropriate standard of care that could assist a physician when faced with litigation. 
Potential Damages 

Physicians who publicly respond to recordings made by patients run the risk of HIPAA violations and face financial penalties. Although HIPAA violations for responding to recordings of clinical encounters are relatively infrequent, violations can quickly amount to costly expenses and a damaged reputation. 

Quiz 

Answers are provided below. True or false? 

Question 1: A provider cannot confront a patient they observe recording an encounter. 

Question 2: If a provider finds a recording of an encounter with a patient online or on social media, the provider cannot respond to it publicly. 

Question 3: Patients can use secretly obtained recordings of physician encounters in legal actions. 

Answers 

Question 1: False. If a provider discovers a patient has been secretly recording an encounter, they can inform the patient that they are aware or ask the patient why they are recording. A provider may choose to allow the recording if it is used to assist the patient in remembering what is said or to share with a family member. If, on the other hand, the recording is “in case something goes wrong,” then the provider may choose to let the patient know that they do not permit sessions to be recorded and share their concerns with the patient, including how it may affect the trust in their relationship. 

Question 2: True. A provider cannot respond to recordings of their patient interactions posted online or on social media, because doing so would be a HIPAA violation. A provider may discuss the recording with the patient at their next appointment. 

Question 3: True. Recordings of a provider-patient encounter may be used in legal action against a provider who was unaware of the recording, including as evidence of quality of care or insufficient disclosure of treatment complications. 

12/22

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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.