Practice of Medicine

Article

Docs on Candid Camera: Patients Recording Clinical Encounters

By Marshaleen King, MD

January 17, 2017

Introduction

The thought of patients recording encounters often causes discomfort for doctors. Before having a “knee-jerk” reaction to this concept, consider what you would want if the patient was your 86 year-old mother who was having difficulty with her memory and went to see her physician unaccompanied. Healthcare providers have mixed reactions to the concept of patients recording clinical encounters. Many physicians are strongly against patients recording clinical encounters, 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.

Advances in technology, including the advent of smart-phones, have made it easier for patients to record their encounters with healthcare providers. 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 in the US, patients can secretly record their healthcare providers without the fear of legal repercussions. 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 are 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 you would prefer to know that you are being recorded or would rather take the chance of being recorded without knowing. 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 for the purpose of remembering 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 recoding 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 fairly 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.

An article published in the Journal of the American Medical Association (JAMA) in March of 2015 by Rodriguez M. et al. encouraged physicians to have an open mind about patients recording clinical encounters and highlighted several benefits of such recordings. Rodriguez and colleagues acknowledged that patients recording encounters may cause physicians to feel vulnerable and violated, but they also emphasized that physicians who discourage recordings risk being recorded covertly. The authors of the JAMA article recommended that physicians who discover that they have been secretly recorded have conversations with the patients about the recordings, express assent and note constructive uses of such recordings.

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. Recordings are sometimes obtained as a means of documenting the quality of care provided and can be used to support claims of issues with the care provided. Although persons specifically trying to obtain evidence of poor-quality 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 openly.

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. The comprehension of information conveyed may improve since the information can be reviewed after the visit on multiple occasions.
  • May improve adherence due to a more accurate understanding of recommendations.
  • The performance of practitioners may be enhanced by knowing that they are being recorded. For instance, practitioners may make a greater effort to communicate thoroughly and effectively when they know that they are being recorded.
  • 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 has the potential to destroy trust.
  • Recordings shared online could damage the reputation of a physician and/or a medical practice.

Concluding Remarks

There is no consensus on this subject. More information is needed about the implications of patient recorded clinical encounters before a decision can be made as to whether this practice should become common place. Research is needed to determine the true short-term and long-term impact of patients recording clinical sessions. In the interim, practitioners should assume that they are being recorded at all times, particularly since covert recordings may occur at any time.

References and Resources

https://www.ecri.org/EmailResources/Risk_Management_eSource/RMRep0815.pdf

http://bmjopen.bmj.com/content/5/8/e008566.full.pdf+html

http://www.medscape.com/viewarticle/835195

Rodriguez M, Morrow J, Seifi A. Ethical Implications of Patients and Families Secretly Recording Conversations with Physicians. JAMA. 2015; 313(16):1615-1616. doi:10.1001/jama.2015.2424

http://journals.plos.org/plosone/article/file?id=10.1371/journal.pone.0125824&type=printable

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.