Your Patient Wants to Record You; When Should You Refuse?

Lee J. Johnson, JD


October 13, 2017

In This Article

More Patients Whip Out Their Smartphones to Record

"Doctor, would it be okay with you if I tape record our conversation today?"

The doctor's first reaction is likely to be negative. He or she may feel a lack of trust or a sense of suspicion. Perhaps the patient wants to create evidence for a lawsuit. Consented-to audiotape evidence, just like your testimony and your medical record, may be admissible in court.

And the evidence could be damaging. If you neglect to mention an important factor or misstate a medical recommendation, you won't be able to deny it at trial because the tape will impeach your testimony. If you miss a diagnosis and the tape showed that you failed to ask a relevant question or forgot to order a recommended test, your defense will be compromised.

This is a new age that includes smartphone technology plus the "informed consumer" movement. A malpractice conundrum is presented.

Your first step should be to ask the patient, "Why do you want to tape the conversation?"

Good Reasons to Record a Visit

One potential answer is, "Doctor, I'd like to tape this discussion so I can remember all the details and instructions later. Is that okay?"

It's understandably tempting and probably commendable for patients to want to record discussions about diagnosis, medication, treatment, follow-up instructions, and other physician or staff interactions.

There are some merits to this request. Encouraging patient involvement can aid in greater patient compliance, a better outcome, and better patient satisfaction.

Studies have shown that patients forget between 30% and 70% of what their doctor tells them within minutes of leaving the office. When the patient claims later that the doctor didn't tell him something, was misleading, or omitted important facts, he or she may not be lying. Most patients don't understand medical terminology. At the time of a doctor visit, the patient will probably be sick and afraid, so comprehension may in fact deteriorate.

If the patient is receiving bad news, the intense emotions tend to overwhelm his or her capacity to process things logically or intellectually. Many patients report that they have trouble understanding information during appointments. Patients may hear what the doctor is saying without really understanding. And there are patients who lack capacity, owing to age or mental impairment.


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