By Matt Fisher, Esq
Twitter: @matt_r_fisher
Host of Healthcare de Jure – #HCdeJure
A patient walks into a physician’s exam room with an ever present smartphone or another digital device. The patient is especially concerned for the information that could be discussed during this visit and wants to be sure that they can remember everything that is discussed and presented during the visit. With that in mind, when the physician walks into the room, the patient asks, “Can I record this visit?” With that question, the physician is not sure how to respond.
Traditionally, the response would often be an absolute refusal to permit recording of a visit. Fears over liability or misapplication of the information at a future time were primary drivers for the response. The liability fears can be summarized as follows: a recording can capture everything that is said; some piece of information could be misstated or mistakenly left out; the missing information was a key issue and was arguably connected to some harm the patient suffered; after suffering the harm the patient listens to the recording and decides to do something against the physician; and lastly the patient uses the recording against the physician in the legal action. That chain of feared events stems from a recording coming back to haunt the physician. The other side of the coin would be a patient listening to what the physician says while at home, not fully comprehending everything or only picking out certain bits of information and pursuing a course of action not suggested by the physician. In both instances, the fear of the physician is that the recording will hurt the patient and then the physician will be blamed.
While that is the traditional response, things are beginning to change. Some physicians are becoming more open and accepting of recordings now. The changing attitude makes sense because recording can be analogized to Open Notes or any other movement to more actively engage and involve patients. From this perspective, a recording can be a tool to help promote better health when the patient spends the majority of their life outside the physician’s office or otherwise interacting with the physician. Arguably a recording could be used to clear dictate out the steps a patient needs to follow or be used as a reminder of issues discussed. The recording could encourage clearer communication and focus on breaking ideas down so everyone really understands.
Before hitting record though, there are still issues to consider. First, is the recording going to occur out in the open. Specifically, is the patient asking the physician if recording is ok, or is the patient doing the recording without the physician’s knowledge? This question anticipates the next point of discussion, a general overview of wiretapping laws, but raises a different question before getting there. If the physician is unaware of what is occurring, is a breach of trust occurring? If one party to a conversation does not know what is happening and later learns what did in fact happen, there can be irreparable damage to the relationship. Since the patient and physician relationship is one fundamentally built upon trust, deliberately undermining that foundation seems counterproductive.
The response to the whether a visit can be recorded question also implicates wiretapping laws. Each state has its own version, so parties will need to know what their own state permits. However, the laws can generally be broken into two categories: one party consent and all party consent. One party consent laws only require one party to a conversation to consent to the recording. In a situation where one party wants to record, that consent will always be present. As such, one party consent laws could permit secret recordings since the party doing the recording is ok with it occurring. All party consent laws require all parties to a conversation to consent to the recording. All party consent laws are the genesis for the message everyone gets when calling any company that says this call may be recorded. The party using that message is notifying of its consent to recording and by staying on the line, the other party is implicitly agreeing to a recording.
Taking the types of wiretapping laws into the physician exam room, knowing what your state allows becomes very important if there is a concern about recording. If the physician is in an all party consent state, then the patient needs to ask and the physician can then decide what to do. In a one party consent law, that option is pretty much rendered moot. What can be done? As with most issues, having a policy can alleviate many of the issues. Developing a policy forces the physician and the practice to think about the issues and determine feelings about recordings. A policy can then be used to proactively inform everyone coming into the practice of what will be permitted. Further, if a patient or other person does not comply with the policy, then a firmer basis exists for taking action to stop the disfavored behavior.
With some of the legal issue on the table, the question still comes back to should a recording be allowed. While some may hope for a clear answer to that question, it really depends. The determination depends upon the feels of the physician and patient and the nature of each relationship. Ultimately, raising the issue and having an open, frank discussion will often be best. That way each side can hear the other out and hopefully come to a consensus.
This article was originally published on Mirick O’Connell’s Health Law Blog and is republished here with permission.