Over the years, cell phones have evolved from purse-size behemoths to devices the size of a wristwatch. At the same time, they have advanced from what amounted to a portable telephone to the smartphones of today. Both the changes in size and the added functions have resulted in new concerns for physicians.
“We had a family meeting about two years ago to discuss a patient, and I noticed someone was recording the conversation on their iPhone without asking me if it was okay,” said Ali Seifi, MD, assistant professor of neurosurgery/neurocritical care at the University of Texas Health Sciences Center at San Antonio (UTHSCSA). “I wasn’t sure if it was legal for the family to be recording these discussions about the patient. I also did not know if I could ask them to get my permission first.”
Smartphone Ownership Growth
These concerns are only going to grow. A fact sheet issued by the Pew Research Center in 2014 noted that 58% of Americans owned a smartphone—and 83% of young adults. These can be used as recording devices at the touch of a button. Smart watches can make surreptitious recordings of conversations even less noticeable (Mobile Technology Fact Sheet, Pew Research Center, October 2014).1
“With smartphones being in the hands of almost everybody, it is becoming more likely that someone is going to secretly record our interactions,” noted Dr. Seifi. “Medical professionals have to start thinking about the ethical and legal aspects of this.”
To try to stimulate conversations on these issues, Dr. Seifi joined with Michelle Rodriguez, JD, a medical school student at UTHSCSA, and Jason Morrow, MD, PhD, from the school’s Center for Medical Humanities and Ethics, to look at these questions. The result was a Viewpoint article published in a 2015 issue of the Journal of the American Medical Association (2015;313:1615–1616.)
Decision on Taping Difficult for Doctors
There are probably as many opinions on patient recording in general, and surreptitious recordings in particular, as there are practitioners. It is a personal decision that is often based on the patients in front of them.
“One of our physicians had an elderly cancer patient who wanted to record the visit, and the doctor thought that was fine because of the large amount of information being covered,” said Kevin Watson, practice administrator at Colorado ENT and Allergy in Colorado Springs. “For those with more straightforward cases, it seems like the relationship is not getting off on the right foot. While the patient may have the best of intentions, the question may still remain whether they are really looking for evidence of malpractice.”
Many physicians just don’t feel comfortable with the technology and don’t understand the implications. Others think that recording changes the interaction, because the doctor may become more formal and may use medical jargon instead of easily understood words, knowing that others may review the interaction.
Another concern is the use of the recording if there are adverse outcomes. If the doctor doesn’t mention a zebra, might that lead to a malpractice claim and/or overtreatment in a defensive medicine mode?
“The doctor–patient relationship is largely based on trust,” says Dr. Seifi. “I wonder if a patient is secretly recording me because they have lost that trust in my abilities?”
As with many other things in medicine, you must conduct a thorough and complete assessment before you plan your next moves. You should no more leap to conclusions about this aspect of care than you do any other.
Patients may have different reasons for wanting to record encounters with their physicians, and these may not necessarily stem from lack of trust. Sometimes it may be that they trust the doctor to the point that they want a verbatim record of what is said.
The patient may feel the need to secretly memorialize the interaction to refer to it later. Many studies note that it isn’t at all unusual for a patient to say they understand the treatment plans even when they don’t. They just don’t want the doctor to think less of them, or they seek the practitioner’s approval.
Younger patients may tape interactions with their physicians without giving it much thought. Some lead very public lives and document every facet of them on Facebook or Twitter or other social media platforms. To them, medical interaction is no different.
“Fire” the Patient?
There are times when physicians may be so concerned they even consider whether or not the relationship is viable or wonder if they should “fire” the patient.
“If they say they don’t trust the doctor or that they are looking for evidence of how you treated them improperly, then maybe the patient shouldn’t be sitting in front of you,” said Gary Sastow, Esq., a partner at Brown, Gruttadaro, Gaujean, and Prato, PLLC, in White Plains, N.Y. “A person coming in with the purpose of catching you doing bad things on tape doesn’t bode well for the relationship.”
Another concern is patient privacy and how secretly recording your doctor fits in with the provisions of the Health Insurance Portability and Accountability Act (HIPAA). If the patient is doing the recording, there are no concerns.
“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.”
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].”
These interventions may not work as well in one-party states, because only the person recording would need to give consent; however, some jurisdictions may limit the admissibility of the recordings in the case of a court action.
Practitioners should begin thinking about what their personal views are on patients taping interactions in general and doing so secretly in particular. Working through the personal and ethical issues beforehand should make the encounter go more smoothly when (not if) it happens.
“We haven’t had that many cases where patients asked us to record the conversation,” said Watson. “But we also know that it may be happening at a higher level without us knowing about it, because the technology is easily hidden. Our physicians are usually agreeable when it comes up, because they want to make sure that all involved in the patient’s treatment get the information they need for success.”
Kurt Ullman is a freelance medical writer based in Indiana.
Adapted from “Off the Record,” which was published in the August 2015 issue of The Rheumatologist, with permission from the American College of Rheumatology.