One Medical Justice member recently wrote about a patient pulling out their phone in the middle of a consultation. Then they started recording. This physician works in New York. The practice was reasonably concerned the patient might use this recording for less than honorable purposes. They asked for guidance.
New York is a one-party recording state.
In a one-party recording state, the person being recorded does NOT need to provide consent. The recording party can record away.
In a two-party recording state, one needs the consent of both parties to record a conversation.
Most states are one party recording states. No consent required.
Connecticut, for example, is a two-party recording state. New York is a one-party recording state.
In the example above, with a New York practice, the patient did nothing to violate the law.
Early in the pandemic, I was interviewed by Medscape. Snippets of that article are below.
In most cases, patients are recording their visits in good faith, says Jeffrey Segal, MD, JD, the CEO and founder of Medical Justice, a risk mitigation and reputation management firm for healthcare clinicians. “When it comes to ‘Team, let’s record this,’ I’m a fan,” he says. “The most common reason patients record visits is that there’s a lot of information transferred from the doctor to the patient, and there’s just not enough time to absorb it all.”
While the option is there for patients to take notes, in the give-and-take nature of conversation, this can get difficult. “If they record the visit, they can then digest it all down the road,” says Segal. “A compliant patient is one who understands what’s expected. That’s the charitable explanation for recording, and I support it.”
It’s that question of good intent, however, that concerns some physicians in today’s highly litigious society. “The worry is that there’s a small subset of patients with an ulterior motive,” says Segal.
“Some patients do record in case of an event down the road,” he adds. “They want the recording to potentially talk to a lawyer, or to file a board complaint.”
The first step is to know what type of state you practice in. Regardless of whether you are in a one- or two-party consent state — but especially a one-party state — it’s a smart move to add a sign at your office saying that you support the recording of visits, provided the patient is open and transparent about it. “Let the patient know that if they plan to record, they should ask your permission,” says Segal. “Let them know it’s not appropriate if they haven’t received your permission.”
There are, of course, the occasional horror stories involving surreptitious recordings. “I remember a case where a patient left a phone actively recording in his bag of clothing, which went into the OR with him,” he says. “The background conversation was not flattering to the patient, who happened to be an employee of the hospital. When he came to and listened to the recording, he sued, winning his case.”
What about the rare situation when a patient pulls out a phone and begins to videotape a conversation? It can be a big slippery slope. “Patients can abuse a video recording with editing, and the recording becomes one-dimensional, which is unfair to the physician,” adds Segal.
Patients sometimes have other motives as well. “I’m aware of occasions where a doctor/patient visit got heated and the patient took out the phone to video record, sharing it to social media,” says Segal. “Once someone uses a phone to take video, just stop the conversation. Tell the patient, ‘We’re having a disagreement,’ and that it’s time to put an end to it.”
He adds that from the physician side, a video can be a protagonist in a conversation. “Frankly, a camera on your face changes the nature of things,” Segal says. “It’s much easier to have the phone sitting in a corner, quietly recording.”
It’s your office. You can make the general rules. Most patients bring their phone to a visit with the best of intentions. Still, in 21st century America, it’s reasonable to just assume you’re being recorded (whether overtly or surreptitiously) and modulate your behavior accordingly.
What do you think?
Well, one way to handle it would be to announce up front that ~you’re~ recording the interactions–and actually record them. If the patient wants a copy of it, no problem. That protects both doctor and patient. I can’t recall interactions with patients that I didn’t want known.
The one time a suit against me wasn’t dropped (and went to court), the video deposition of the PA was telling. Plaintiff’s attorney tried to sneak in the idea that he (the PA) got the consent instead of me doing it. The PA had worked for me in another city and instantly parried that by saying words to the effect that “Dr. Horton is very picky about his consent; he always gets them himself.” Which took that wind out of the shyster’s sails.
But the fact is that, at least as far as consents go, I could have recorded it and used the recording. Years ago I devised a formula for informing patients and it became second nature to me. There are branch points in it, should question arise, but that happened only rarely.
So the question is: do you do and/or say things when you interact with patients that you consider to be edgy? If so, stop doing that.
If you don’t record, the only thing that protects you is the medical record which is a medical legal document. The medical record is the most important document to help confirm or deny what happens during a visit. Accurate physical exam, and a clear assessment and plan and rational are most crucial in protecting you. Document all phone calls and any interaction with patients.
Patient recording is a good practice! If there is a peculiar medical condition with multiple recommendations for possible treatment, I.e. radiation or surgery, and ADT for prostate CA, it may be beneficial for the patient to record the consultation and listen to it again to help make a sound decision.
The National Security Agency, for example, has the software to scan and monitor all electronic communications, to discover and contain any terrorist threats, for example. The technology is available to the cogent public. Everything is visible, according to General Petraeus. Check it out. The remedy is to act in a benevolent, honest fashion, as if speaking on TV or the radio, as in marketing and research, for example. A little entertainment in good taste may be helpful.
When the electronic medical record (automatic anesthesia record keeper) first showed up in the mid 1980s, I attended a conference at the Plaza Hotel in NY, with my chief. All of the leading lights in anesthesia doing research on automatic anesthesia record keepers were there. There were two premises that were held out. 1)The EHR was going to improve quality. It was going to make the anesthesia record better. 2)The EHR was going to make anesthesia malpractice cases more defensible because of #1.
I had run off 50 cases on one of the manufacturers systems. I pointed out that if the arterial line, and BP cuff were on the same arm (often because the IV was in the other arm), when the cuff went up, the arterial pressure went to zero. The machine preferentially recorded the ZERO arterial pressure. Even though the pulse oximeter, BP cuff, and EKG all showed cardiac activity and blood pressure, the machine was selecting out what to record. This created malpractice risk for us. I was told that I was incorrect.
Cycle forward 40 years. The EHR has not decreased cost or improved quality, the two things it was ballyhooed to do.
How does all of this relate to the case at hand?
Video recording is a two edged sword.
Yes it can be used to document what is being said to a patient.
But if a risk even a minor risk, is not disclosed, in a recorded audit or video, it is immediately evidence of an inadequate informed consent.
These audio and video files can be edited.
Heck with AI, the entire audio or video can be recreated to say things that the physician never said.
If a patient wants the recording for the information provided, I would simply tell the patient, no, but offer a complete written explanation of what was discussed, that is edited and disclosed by the physician. This allows the physician to control the narrative, keep his own copy, make sure that it is sufficiently robust to cover all bases (and even have it reviewed by the physician’s attorney) before being released.
I fail to understand why any physician would want to have a video or audio recording of the discussions that occurred with the patient that can be used against him/her.
Moreover, a video that is taken of the patient is not only discoverable, but that creates another HIPAA risk of inadvertent disclosure.
Finally if a lack of trust is evident by recording the physician, it is time for the physician to step upand say, that it is office policy to discharge patients that record video or audio of confidential physician patient discussions instructions. The amount of headache for the physician that will be avoided by such a policy is considerable.