ARTICLE IN BRIEF
Experts offer ethical and legal advice in response to patients' requests to record their visits.
Imagine this scenario: Just as you are about to begin a consultation with a new patient, he or she takes out a smartphone and asks to record the visit. What do you do?
Now that just about everyone can record their medical appointments using devices sitting handy in a purse or pocket, neurologists and other clinicians can expect to encounter situations like this one more frequently. Sometimes, the patient may openly ask to record their consultation, while in other cases, they may set their device to record before ever entering the physician's office, and tape the entire encounter.
In most states, according to a recent New England Journal of Medicine viewpoint article, the patient is perfectly free (and legally allowed) to record either covertly or openly. Only eleven states — California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and Washington — are “all-party” consent states, meaning that the law requires that all parties involved must consent to being recorded.
The other 39 states and the District of Columbia require only single-party consent; as long as one party involved consents to being recorded, the recording is legal. (A physician in a single-party consent state can ask a patient not to record their visit, but if the patient insists, they cannot legally require them to stop, although they can elect to terminate the visit.)
There haven't been many studies looking at how common it is for patients to record medical visits in the United States, but United Kingdom-based studies suggest that about 15 percent of patients have secretly recorded at least one clinical encounter, and about 69 percent would like to do so — either covertly or with permission.
RATIONALE TO ALLOW RECORDING
Members of the AAN's Ethics, Law and Humanities Committee told Neurology Today that although neurologists may be taken aback by requests to record visits, there are good reasons for patients to do so.
“Since the capability to do this kind of thing has become readily available, I'd say maybe once every two months a patient asks me if they can do it,” said Committee Chair James A. Russell, DO, FAAN, a neurologist at Lahey Hospital and Medical Center in Burlington, MA.
“I obviously have no idea how often it's done covertly. When asked, I typically say yes; in fact, I cannot think of a situation in which I would say no. Think about it this way: Patients walk into doctors' offices, they're nervous, scared, and even under the best of circumstances don't always hear or comprehend what we're saying. As best as we try not to overwhelm them and use as little ‘doctor talk’ as possible, I'm sure people don't walk away fully understanding and remembering everything you said. There's a clear benefit to them of having such thorough documentation of what was said when they walk out. And if I were to say no, it would potentially damage the trust necessary for an effective physician-patient relationship.”
Research has found that recordings can be beneficial for patients. A 2014 literature review involving 33 studies, including 18 randomized trials, found that clinic visit recordings were highly valued: 72 percent of patients listened to them, 68 percent shared them with a caregiver, and in general, patients who had recorded their visits reported better understanding of their medical information.
Patients with neurologic conditions might stand to benefit even more from recording their appointments than, say, someone with congestive heart failure or diabetes. “As a primarily cognitive field, one of our most important tools is our ability to communicate,” Joseph Kass, MD, JD, FAAN, associate professor of neurology, psychiatry and behavioral sciences, and medical ethics and health policy, at Baylor College of Medicine in Houston, Texas, said.
“We have complicated patients, sometimes cognitively impaired patients, who don't always come in with a care provider to keep track of what has been said. And even the caregiver — if you're talking about a serious diagnosis, is that person really going to be in the best position to remember everything as well? The idea that you stop hearing what the doctor is saying after you receive a serious diagnosis will often apply to the person you choose to accompany you as well. If these patients feel like they need a recording to help them understand what we've talked about, that's great. I think this is actually something we should encourage our patients to do.”
Dr. Kass and Dr. Russell acknowledged that physicians may have concerns about patients recording their consultations. There is the question of whether or not a recording could be used against the physician in a malpractice suit; in one-party consent states, the answer to that question is yes.
A recent legal course at the AAN's Annual Meeting cited the now-famous case of a Virginia anesthesiologist who disparaged her patient while he was under anesthesia for a colonoscopy. The patient had set his phone to record his post-procedure instructions and neglected to turn it off — and won $500,000 in damages for the April 2013 incident.
“That's a common reaction — you think, will this be used in a malpractice suit?” said Dr. Kass. “But we should always be talking to our patients in a way that is professional. In fact, although a patient might perceive unhappiness with an encounter, perhaps due to a bad outcome, I could also see situations where a taped conversation like that could perhaps exonerate the physician if he or she comes across as empathetic and takes the time to explain and communicate. If we're using tone we should be using, and offering the empathy we should, it could work in the physician's favor. As a profession, we shouldn't be in situations routinely where we are worried about how we interacted.”
Health care law specialist Jay Goldstein, a partner in the Chicago-based firm Thompson Coburn, agrees. “As the Virginia case demonstrates, patient recordings that are legitimately made within the purview of state statute and federal wiretapping law could be perceived by a judge as valuable.”
Even intentionally surreptitious recordings have been upheld as evidence in court, he noted, citing a 2011 case involving the Cleveland Clinic, in which state courts in Ohio considered the issue in the context of family members who recorded a conversation with a hospital administrator after their father's dramatic decline in health following surgery. The administrator's apology and apparent admission of guilt were ultimately ruled admissible.
“The case went all the way to the Ohio Supreme Court, which concluded that the hospital's claim that the conversation was protected by the peer-review privilege was without merit,” he said. “But the admissibility of a doctor-patient recording should not necessarily be a bad thing for the doctor. It can offer valuable support for the physician's side of the equation, documenting that he or she did indeed fully inform the patient of the risks of a procedure, for example.”
Another potential issue with recordings is that they could be misused in a public way, such as in online postings. “One concern I would have is that some snippet of what was said could be taken out of context and misused,” noted Dr. Russell. “I hope that I wouldn't say anything to a patient differently whether I was being recorded or not. The whole doctor-patient relationship is based on trust, and I should be held responsible for what I say, unless it's taken out of context.”
It's true that a particularly contentious patient who is determined to besmirch a doctor's reputation might be able to use a redacted or manipulated recording to cause public damage, no matter how appropriate the clinical encounter initially was. “But the vast majority of people aren't those kind of people,” Dr. Kass said.
“We've all had bad days and regretted things we've said, but we should all be able to stand by our bedside manner. As neurologists, our words, our interactions, and our thought processes with our patients are what makes us valuable, and we have to be able to stand by that.”
Goldstein advises neurologists to develop clear policies and procedures for their practices surrounding patient recordings, in consultation with their own attorneys. “These policies and procedures will be different for every practice, because no two jurisdictions and no two practices are exactly the same,” he noted. “Generally speaking, if a patient does ask to record the conversation and you consent, that should be documented as part of the overall medical record.” The recording would not run afoul of Health Insurance Portability and Accountability Act, he added, because the patient is the one doing the taping.
Whatever policy you adopt regarding the recording of visits, Mr. Goldstein recommends posting a notice to patients in the waiting room clearly outlining that policy, in order to minimize any potential liability and communicate clearly with patients. “But regardless of any office policy, physicians' safest approach would be to operate as if all their interactions with patients are being recorded,” he said.