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FIGHTING FOR SAFE AND FAIR HEALTH CARE
Can Patients Make Recordings of Medical Encounters?
By Glyn Elwyn, MD, PhD; Paul James Barr, PhD; Mary Castaldo, JD, MPH - JAMA.  July 10, 2017 

For many doctors it is possible that some of their patients are recording their office visit, with or without permission. In a cross-sectional survey administered to the general public in the United Kingdom, 19 of 128 respondents (15%) indicated that they had secretly recorded a clinic visit, and 14 of 128 respondents (11%) were aware of someone covertly recording a clinic visit. Because every smartphone can record conversations, this may become even more commonplace. The motivation is often reasonable: patients want a recording to listen to again, improve their recall and understanding of medical information, and share the information with family members. A review identified 33 studies (including 18 randomized trials) of patient use of audio-recorded clinic-visit information. Audio recordings were highly valued; across the studies, 72% of patients listened to their recordings, 68% shared them with a caregiver, and individuals receiving recordings reported greater understanding and recall of medical information.

In the few healthcare organizations in the United States that offer patients recordings of office visits, doctors and patients report benefits. In addition, liability insurers maintain that the presence of a recording can protect doctors. For example, at the Barrow Neurological Institute, in Phoenix, Arizona, where patients are routinely offered video recordings of their visits, doctors who participate in these recordings receive a 10% reduction in the cost of their medical defense and $1 million extra liability coverage.

However, many doctors and clinics have concerns about the ownership of recordings and the potential for these to be used as a basis for legal claims or complaints. Administrators and patients are unclear about the law and are concerned that recording clinical encounters might be illegal, especially if done covertly.

The law is inconsistent: recording is allowed in certain situations and is illegal in others. The goal of this Viewpoint is to help doctors, administrators, and patients understand the law in relation to the recording of clinical encounters and guide reactions to this new phenomenon.

Is it Legal for Patients to Record Encounters?

In the United States, the situation is complex. Substantial effort is made to maximize privacy in clinical encounters. Wiretapping or eavesdropping statutes provide the primary legal framework guiding recording practices and protect against nonconsensual recording of conversations when individuals have a reasonable expectation that their conversation is private. These laws vary at the state level, and these distinctions have significance for patients who wish to record their clinical encounters.

US State-Level Wiretapping Laws

Wiretapping laws differ as to whether 1 or all parties must consent to the recording. In so-called all-party jurisdictions, covert recording (recording without the expressed permission of all parties) is illegal because all who are being recorded must consent. In contrast, in single-party jurisdictions, the consent of any 1 party to the conversation is sufficient, including the person making the recording; therefore, if patients wish to record a clinical encounter, they can do so without obtaining the clinician’s consent. Statutes in 39 of the 50 states and the District of Columbia conform to the single-party consent rule. The 11 all-party jurisdictions are California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and Washington. 

Connecticut requires all-party consent for recording telephone calls, but not for face-to-face conversations. Similarly, Nevada requires all-party consent for wire recordings (unless an emergency precludes obtaining consent from both parties). Vermont does not have a wiretapping statute; however, there is a possibility that nonconsensual recording could be deemed an invasion of privacy in this state. Michigan appears to require all-party consent however, an appellate court interpretation suggests that only a single party’s consent may be required when the person making the recording is a party to the conversation. Because there is some uncertainty with Michigan, we have erred toward a strict statutory interpretation. Oregon law allows for a single party alone to consent to recording of a telephone conversation , but requires consent of all participants for in-person conversations. In addition to criminal penalties, civil liability may occur under wiretapping laws or a claim for invasion of privacy. If sued, the patient could be required to pay for any attorney’s fees incurred by the physician and costs as well as damages .

The consequences of violating wiretapping laws can be severe. Typically, it is a felony to make an unauthorized recording and affected parties also may seek damages from the person who made the recording, including compensation for harm, attorney’s fees, and other costs. Disseminating the recording may be an additional violation, and recordings made in violation of the law may not be introduced as evidence in court.

Are Office Recordings Subject to HIPAA Compliance?
Whether the Health Insurance Portability and Accountability Act (HIPAA) standards apply to the audio or video recording of a clinic visit is based on ownership of the recording. The recording is subject to HIPAA standards if it is “created or received” by a “covered entity,” including health plans, health care practitioners, and health care clearinghouses. However, a patient-initiated recording that is retained by the patient (and not given to the clinician or health plan) is not subject to HIPAA.

How Can Doctors React if a Patient Wishes to Record the Clinical Encounter?
If a doctor in a single-party jurisdiction is asked by a patient to allow a recording, the doctor may ask the patient not to proceed, but the patient has the right to record the clinical encounter. The doctor can choose to continue, accepting that the conversation is being recorded, or terminate the visit. Doctors in single-party jurisdictions should be aware that patients may be recording covertly. In all-party jurisdictions, a doctor can refuse to grant patients permission to make recordings. In these jurisdictions, illegal recording may be reported to the authorities.

Sharing Recordings
Patients are free to share the content of recordings in single-party consent states, but require agreement of those who were recorded in all-party consent states. Most patients use this right to share the recording with a family member or caregiver but not on social media. This freedom may not apply to recordings modified or used to the detriment or harassment of the doctor captured in the recording. Using the recording to harm or damage the reputation of the clinician recorded could lead to legal action by the person affected.

The Future of Recording in Clinic
Research suggests that patients benefit from recording their office visits, and further work is in progress. However, patients who choose to record may be concerned about upsetting their clinicians by requesting permission or may have concerns about retribution if a hidden recording is later discovered. Simultaneously, doctors may be concerned about the possibility of hidden recorders. Both contexts hinder a relationship of trust and open communication. Doctors, patient advocacy groups, and policy makers should work together to develop guidelines and regulatory guidance on patient recording. As health care continues to make significant strides toward transparency, the next step is to embrace the value of recording clinical encounters.

Summary

Digital recording of interactions is occurring widely, often covertly. Doctors and health care systems are uncertain about the law relating to the recording of clinical encounters. Developing clear policies that facilitate the positive use of digital recordings would be a step forward.

Article Information

Corresponding Author: Glyn Elwyn, MD, PhD, Dartmouth Institute for Health Policy and Clinical Practice, One Medical Center Drive, Williamson Translation Research Building, Lebanon, NH 03756 (glynelwyn@gmail.com).


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