Advances in technology, especially the advent of smart phones, have made it easier for patients to record their encounters with healthcare providers. However, physicians often have understandably mixed reactions to the concept of patients recording clinical visits.
Many physicians are strongly against patients recording them, while some providers endorse the benefits of such recordings. Numerous patients express a desire to record clinical encounters to improve their ability to recall information and follow through on recommendations. The major concern for practitioners is that the recording could be used against them in a legal case.
State laws vary on allowing such recordings. 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 doing the recording. So, in the majority of states, patients can secretly record their healthcare providers without legal repercussions. The size and ubiquity of smart phones makes it easy, and providers should remain mindful of the fact that they could be recorded at any time.
More importantly, healthcare facilities and physicians should consider the benefits and drawbacks of patients recording sessions, prepare for the likelihood of it and plan a response when they discover a patient is recording.
Pros and Cons of Recording Clinical Encounters
Patients often indicate that they record encounters to help them comprehend and remember information. Some patients record clinical encounters so they can share the information with family members, particularly when they require assistance with care. This may improve adherence to treatment because they better understand their physician’s recommendations.
Of course, sometimes patients record encounters to document and support issues they might have with the quality of care provided. Although patients trying to obtain evidence of poor healthcare may be more likely to record covertly, individuals recording solely to enhance memory may also choose to record secretly because they fear being denied permission to do so. Providers should avoid making patients feel as though they are opposed to being recorded, since this may heighten suspicions and could lead patients to record encounters covertly in the future. And remember, in case of a lawsuit, patient recordings actually can support a healthcare provider’s defense if they demonstrate a high quality of care.
Although laws such as HIPAA protect patients from provider disclosure of their medical information, patients are free to share their health information as they choose and 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.
Preparing for and Responding to Patient Recordings
Signage and policies that discourage or forbid recording encounters aren’t guaranteed to stop patients from doing so, particularly covertly. Some sources recommend posting signs prohibiting the use of cell phones or recording devices due to concerns about the privacy of fellow patients, but even this strategy doesn’t guarantee that patients won’t secretly record encounters.
When determining your policy, consider whether you would prefer to know when a patient is recording. Rather than attempting to prohibit all recording, a better approach may be to have open, honest discussions with patients about it.
If a practitioner discovers that a patient has been secretly recording their encounter, it may be best to let the patient know they are aware of the recording and then ask them why they are doing so. Deciding how to proceed from that point can vary depending on the patient’s response.
If the patient is recording sessions to remember the physician’s diagnosis and treatment recommendations, then the provider may choose to allow the session to be recorded. If, on the other hand, the patient states that they are recording the sessions because they want to have evidence in case of problems, then the provider may choose to tell the patient that they do not permit such recordings.
While recording clinical encounters may leave physicians feeling vulnerable, particularly if the recordings are made secretly, the best advice is to stay calm and collected at all times when communicating with patients, whether they are recording or not. It is much better to acknowledge and address the concerns of patients and families than to become defensive. In the end, that validation may help to preserve the relationship between the patient and the provider more effectively than strict rules regarding the recording of encounters.
MagMutual’s Learning Center offers many additional resources concerning the business, practice and regulation of medicine.
Disclaimer: The information provided in this article does not constitute legal, medical or any other professional advice. No attorney-client relationship is created and you should not act or refrain from acting on the basis of any content included in this article without seeking legal or other professional advice.