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Should Doctors Allow Patients to Record Their Conversations?

October 2, 2018 | Category: Health Law

Copyright © 2018 by Mitchell F. Green

 

According to the Pew Research Center, 77 percent of all U.S. adults own smart phones. With the ubiquity of these devices and their convenient audio-visual recording capabilities, it is no surprise that patients are increasingly requesting to record clinical visits, and, in some cases, secretly recording conversations with their doctors.   
 
Should doctors and hospitals be concerned that the microphone might be on?  On the surface, it may seem beneficial to allow patients to record their visits and review the doctor’s instructions when they get home, possibly improving outcomes. The issue is not that simple and raises several legal questions.  
 
Secret recordings: Legal or illegal? 
Florida law is on your side when it comes to banning secret recordings. While in some states it is legal for one party to secretly record a conversation, Florida requires both parties to explicitly grant consent.  
 
If a patient records your conversation without your knowledge and consent, and later files a malpractice suit against you based on the content of an illegal recording, the admissibility of the recording as evidence can be challenged. .  
 
Consenting to recordings: What are the downsides? 
Three over-arching legal concerns top the list of “red flags” for consenting to be recorded. The first thing to know is that digital recordings can be altered, manipulated or taken out of context, which is a significant reason for concern. If the patient ever sues you for malpractice, an unscrupulous audio/video editor on a mission to discredit you can edit the recording into a damaging new version of what you said.  
 
The second caveat concerns the far-reaching impact of social media. Utilizing their online networks, angry patients can share their grievances about the perceived shortcomings of the care they received from the doctors and hospitals that treated them. Embedded in a Facebook post or a tweet on Twitter, sound bites from the recording, taken out of context and portraying you unfavorably, can be shared far and wide  
 
The third reason to think carefully before allowing a patient to record your conversation is related to privacy laws. If you happen to be in an open environment when the patient is recording your conversation, you risk violating HIPAA laws if other conversations can be overheard in the background of your recording.
 
Viewed separately or together, these three legal considerations present ample reason to think very carefully before agreeing to have your meetings with patients recorded.

The role of technology in the delivery of medical care continues to expand on all levels, making it crucial to understand its potential ramifications, even with something as seemingly simple as audio/visual recording on smart phones.    
 
Managing risk 
Being caught off guard when a patient asks to record your conversation can be  awkward at that moment. You may know it is a bad idea and prefer to decline, but you might reluctantly agree to the recording if you are not prepared with a response.
 
Proactively developing a written patient privacy policy for your practice, including the policy of not doing digital recordings, gives you a clear default response when patients ask. Prominently display the policy in your waiting area and patient exam rooms. Make sure that everyone in your practice understands why this policy exists and the importance of adhering to it.
 
Recording people’s words and actions and then sharing them with others is part of our smartphone and social media-obsessed culture.  The challenge it poses for medical professionals is likely to accelerate in the foreseeable future. Understanding the potential consequences of recording your conversations with patients and getting comfortable with your response is the best way to maintain control.   

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