Should Patients Be Permitted to Record Doctor Visits?

Neil Chesanow

Disclosures

February 17, 2015

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

How would you feel about a patient producing a smartphone and recording his or her visit with you? What if the patient made that recording without your knowledge?

Attorney and risk management consultant Lee J. Johnson, JD, addressed these contentious issues in a recent Medscape article. She pointed out that there can be good reasons to record a visit. These include helping patients remember all the details of diagnosis, medication, treatment, and follow-up discussions, and assisting caregivers who may not have been present at the visit.

On the other hand, Johnson warns, doctors have every right to feel paranoid that such a recording may become evidence in a malpractice suit. Only a handful of states insist that both parties to a conversation must consent for that conversation to be legally recorded. In most states, only one party to the conversation needs to consent; if that person makes the recording surreptitiously, it's still legal, regardless of what that recording may be used for later.

Of the dozens of doctors who offered comments, not many were keen on being recorded—in plain sight or otherwise.

"Always refuse!" a family physician decreed. "Patient/physician action is confidential. Recording the visit opens up the possibility for all kinds of misuse and abuse."

"Always, always refuse to be recorded," an internist advised. "The patient can be given clinical visit summaries that detail whatever they need to know. Or they can be given patient education handouts. In fact, I can spend up 1 hour with patients writing down and answering all their questions. They can be given the specialists' progress note and my progress note. But the decision and right to be recorded is mine—and I will decline it 100% of the time."

"It is true that recordings may improve communication and compliance, but audio recording of a visit is most certainly not the only way to promote this," noted an emergency physician. "There is a lot of uncertainty in what we do—uncertain diagnoses, uncertain responses to treatment, and uncertain outcomes. I can see an audio recording of a visit being edited to remove any precautionary uncertainty conveyed about the above and used to present an alternative view to the written medical record. Which one should then take precedence if and when a case goes to court?"

"This very useful article leaves out a common item many physicians employ routinely in patient interactions: a printed visit summary that is a key part of many electronic medical record software offerings," a pathologist observed. "The clinical summary usually provides a summary of current medications, what was discussed that day, doctor recommendations, and the date and time of the next medical visit. The patient gets a copy to carry out of the office."

"Why not ask the patient to go elsewhere and rid yourself of a potentially litigious patient?" an orthopedic surgeon wanted to know. "I do not like walking into a trap, especially when a proper diagnosis may not be reached on the first visit!"

"Hell no!" a cardiologist exclaimed, outraged at the very idea of being recorded by patient. "One SOB did that once, and I caught him doing it. I wrote in the chart that he recorded the encounter without consent, as well as the fact that I refused to be recorded. Then I kicked him out of the practice."

"In almost 40 years of practice, the issue of recording the visit occurred only about three times—and none of the incidents were 'innocent!'" an emergency physician recalled. "All were openly used to garner evidence against another physician. In one case, the patient entered the exam room with a full video recording crew."

However, not every doctor who offered comments was dead-set against the idea.

"I believe that a patient has the right to record communications from his or her physician," one doctor wrote. "What does a physician have to fear if she or he is practicing medicine in good faith? If the physician and the patient are on the same side of the equation, then it should be a win/win. Unless one is grossly negligent, it will only improve quality care. I have allowed and sometimes encouraged patients to record recommendations, directions, or full visits. Getting a copy of the recording," he added, "is reasonable."

"My problem has been to get my patients to remember what I tell them during the visit," a family physician said. "I talk with the patient. Then I dictate the visit note looking at the patient. (The patient can correct or add something during this time, or I may remember to ask or add something else.) If most patients wanted to record the visit, that would be fine with me, though it would mean curtailing some of my attempts at humor."

But most commenters agreed with the rheumatologist who wrote, "The patient/doctor relationship is based on mutual trust. Once this trust is broken, then there is no point in pretending to continue this relationship (ie, the patient needs to find another doctor). Taping and recording is intrusive, disruptive, and directly threatening to the relationship."

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