Fig. 1 Offices can institute policies to preclude the use of cell phones and recording devices.
Courtesy of Thinkstock

AAOS Now

Published 11/1/2015
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Thomas B. Fleeter, MD

Physicians on Record—Without their Knowledge

Are more patients secretly recording conversations in your office?

Are your patients secretly recording their conversations with you? Today, nearly two thirds of Americans own smartphones that, with one touch, can easily and secretly record any conversation—including discussions between physicians and patients.

It is unclear how often physician/patient interactions are being recorded—with or without the consent of the physician. Federal law (18 USC § 2511) and most state laws require that only one party in a conversation consent to the recording. Thus, if a patient is recording a call on his or her cell phone, the physician's consent to the recording may not be needed. Only 12 states and the District of Columbia require that all parties consent to that recording (Table 1).

Some states may have additional laws relevant to recording in-person conversations. Oregon, for example, requires the consent of all participants before in-person conversations can be recorded. But many patients may be unaware of these distinctions.

What's the harm?
Recordings of conversations between physicians and patients can be beneficial. For example, a recording may help a patient remember postoperative instructions, dosages, and medication frequency or better understand medication side effects. However, surreptitious recording of the interaction can interfere with the physician/patient relationship, create suspicion, and lead to medico-legal consequences.

Patients tend to filter what they hear and a recording can help to reinforce the message sent by the physician. Studies have shown the patients forget about half of what they're told within minutes of leaving the physician's office. And patients who are understandably worried about their condition may not be able to focus completely on the information that follows the delivery of a diagnosis.

But it's a secret …
The most recent and perhaps best-known incident of a patient secretly recording a physician occurred in 2014 in Virginia. The patient, who later said he was concerned that he would miss important postprocedure instructions, left his cell phone on during a colonoscopy without the physician's knowledge. But when he replayed the recording, he heard the anesthesiologist deliver a series of insults about him. The patient successfully sued the anesthesiologist for $500,000.

And it makes a difference
Recording a medical conversation can change the relationship between physician and patient. It can make the physician wary of the patient or vulnerable as a result of the one-side protection that HIPAA privacy provisions afford patients, but not physicians. The result may be mutual distrust and irreparable damage to the physician/patient relationship.

Once the recording is made, patients can share transcripts or the actual recordings of the conversation on any social network. In these situations, physicians have limited recourse. They may file a privacy complaint or request that the website remove the recording. They may sue the patient, but such lawsuits have met with varying degrees of success.

In general, physicians respond by becoming more risk-averse and less open when they become aware that conversations are being recorded. They are likely to terminate the patient relationship. Physicians who become aware that a conversation is being taped should consider asking for a copy of the recording or make their own recording.

Case examples
A recent article in the Washington Post detailed the story of a patient who requested to record the conversation with his physician. When the doctor declined to allow the recording, the patient felt that the physician was no longer willing to work with him and lost trust in the physician. As a patient, he wondered what the doctor had to hide.

As Glyn Elwyn, MD, PhD, detailed in the British Medical Journal, a doctor's first reaction is to be defensive or worried that the recording could be used against him or her in some way. Additionally, recording conversations may place pressure on physicians to stay up-to-date and pay extra attention to what they are saying.

In Ohio, the family of a patient who died due to cardiac arrest following elective knee surgery surreptitiously recorded their conversation with the hospital's chief medical officer. The physician admitted fault by the hospital and medical staff, and the family sued. The hospital requested that the recording be excluded from evidence because it was derived from peer review activities, a motion denied by the appellate court.

How to respond?
Physicians may not like the thought of patients recording their conversations, but the likelihood that patients will do so is increasing. One way of addressing this issue is to institute an office policy precluding use of recording devices. Practices can post notifications prohibiting the use of cell phones and recording devices (Fig. 1). However, this may lead to an increased awareness of the ease of recording doctor/patient interactions.

Another strategy would be for physicians to become more accepting of recorded conversations, and to use recording to increase patient compliance. In 2011, the Cautious Patient Alliance, a patient advocacy group, initiated a study that used an app to record patient visits. The recordings could later be transferred to a computer so that patients could review the information later. Although patients' understanding of instructions improved, most physicians were hesitant to allow recording devices in the treatment room, fearing liability consequences.

The legal situation regarding surreptitious recordings remains in flux. There is clearly increased patient demand for understanding and internalizing physicians' instructions. This, combined with the growing prevalence of smartphones, will result in more frequent requests to record conversations.

Physicians may wish to facilitate recording to assist patient comprehension about specific instructions for medication, postsurgical instructions, or a myriad of other instructions. For example, the physician may be the one to initiate the recording at the end of the office visit, reviewing the information and providing the recording to the patient.

Thomas B. Fleeter, MD, chairs the AAOS Medical Liability Committee. He can be reached at tfleeter@gmail.com

Editor's note: Articles labeled Orthopaedic Risk Manager (ORM) are presented by the Medical Liability Committee under the direction of Robert R. Slater Jr, MD, ORM editor. Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional. Email your comments to feedback-orm@aaos.org or contact this issue's contributors directly.

References:

  1. Spargo C. Patient is awarded $500,000 after he secretly recorded his doctor saying she wanted to hit him and joking that he had STD—while he was under anesthesia. Daily Mail. June 23, 2015. Accessed September 25, 2015.
  2. Aschwanden C. Patients press the record button, making doctors squirm. Washington Post. May 11, 2015. Accessed September 25, 2015.
  3. Elwyn G. "Patientgate"—digital recordings change everything. BMJ. 2014;348:g2078. Accessed September 25, 2015.
  4. Gallegos A. Family may use secret recording in medical negligence suite (online). Am Med News. 2012 Feb 27. Accessed September 25, 2015.
  5. Rodriguez M, Morrow J, Seifi A. Ethical Implications of Patients and Families Secretly Recording Conversations With Physicians. JAMA. 2015;313(16):1615-1616. doi:10.1001/jama.2015.2424. Accessed September 25, 2015.
  6. ECRI Institute. Risk Management Reporter. August 2015;34:4.