FIGHTING FOR SAFE AND FAIR HEALTH CARE

​​AMERICAN PATIENT RIGHTS ASSOCIATION 

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

However, many clinicians 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 clinicians, 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.