An increasing number of patients are recording their visits to the doctor on their smart-phones, oftentimes without even telling the doctor. Are such secretly recorded conversations legal? Under federal law, audio recording is permitted if at least one party to the conversation has given consent (even if that’s the person doing the recording). Only a dozen states require that all parties in the conversation give permission (per www.bioethics.net). These states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington.
To discourage being recorded without their consent, some doctors are taking a proactive approach by offering patients an audio recording of their visits. Although not all doctors are in favor of this practice, others see the potential benefits for both patient and doctor. Most patients say they like the idea of audio recorded visits. They can go back and review the recording, capturing details or clarifying recommendations they may have missed when in the doctor’s office. This can be especially beneficial for unaccompanied patients, those with lapses in memory, and patients with more complex medical issues. Another benefit is that patients can share the recordings with family members.
Doctors are likely to benefit as well if audio recordings of patient encounters result in a better-informed patient who is more likely to understand and follow advice and recommendations. An article published in the Journal of the American Medical Association (JAMA) in March of 2015 highlighted these potential benefits. The authors say that doctor-patient communication is likely to be enhanced simply because “practitioners may make a greater effort to communicate thoroughly and effectively when they know that they are being recorded” (www.magmutual.com).
Privacy concerns are the biggest potential downside of audio recording doctor-patient encounters. “Although laws like HIPAA protect patients from disclosure of their medical information by providers, patients are free to share their health information as they choose” (www.magmutual.com). “Thus, patients who wish to share information with a larger audience 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.” It would be a HIPAA violation should the doctor respond to a patient’s social media posting. The privacy of medical staff and other patients is also a concern; recording guidelines must be strictly adhered to. Specifically where and when recordings are permissible must be clear.
In conclusion, covert recordings by patients do not support the trust required in a doctor-patient relationship and have no place in a professional setting. In other words, medical practices should consider taking a proactive stance that will benefit both parties. This includes having a written or posted policy regarding audio recordings that will protect the privacy of patients and staff as well. Since audio recordings of clinical encounters are part of the medical record, it’s important that the medical practice maintain quality control but be open to sharing with patients information relevant to their care.
