“While HIPAA regulations give the burden for protection of health information to the doctor, it also says the patient always has the right to disclose their own information,” said Sastow. “If they choose to play it for their family, friend, other physician, or even to the Internet, the doctor would have no legal concerns because it is their information.”
Explore This IssueMay 2016
This seems to hold even if the patient’s family member does the posting, as long as the patient has given their consent.
“This is still a developing area of law, but to my current understanding, it is the patient’s information to do with as they see fit,” said Rodriguez, co-author of the JAMA article. “Even when a third party records the encounter and publishes it, as long as the patient gave their consent, it is out of the doctor’s hands. There may be legal, and almost certainly personal, ramifications for the third party, but at that point the doctor does not have any privacy concerns.”
When the Patient Is Incapacitated
Where the legalities get a little murkier is when the patient is incapacitated and consent for disclosure passes to a surrogate under state laws. There are times when multiple family members may be attending patient conferences.
What happens when an attendee other than the surrogate records and shares the encounter? This may be an issue when multiple caregivers or those at a distance from the physician all need to be on the same page.
As long as the physician is unaware of the recording, attorneys think there is very limited liability; however, there is currently no case law on this subject to give more definitive guidance.
If you find your patient is surreptitiously recording your interactions, you can ask them to stop; however, if you do not know about the taping prior to its release, your response is likely dependent on where you live.
One- or Two-Party States
“In so-called ‘one-party’ states, only one person in the conversation needs to give their consent for the recording to be legal,” noted Rodriguez. “On the other hand, two-party states require the consent of all participants in the conversation. Otherwise, the person doing the recording could be charged criminally under that state’s wiretapping statutes.”
In real life, though, a physician’s actions are limited, even in two-party states. Very few doctors will want to file a criminal complaint against a patient.
“If you want to protect yourself in two-party states, you can include a clause in your patient paperwork or on waiting room signage stating that recording is not allowed without your consent,” said Sastow. “Check with a local attorney before instituting this, since the laws may require certain wording, font size, [and so on].”