Your Office Is Being Recorded

Mark Crane, BA

Disclosures

April 03, 2018

In This Article

Malpractice Insurers Disagree About Recordings

A medical assistant noted that the man had a rash. The anesthesiologist warned her not to touch it, saying she might get "some syphilis on your arm or something," then added, "It's probably tuberculosis in the penis, so you'll be all right."

When the patient later played back the tape, he was furious and filed a malpractice and defamation suit against several physicians. After a 3-day trial in 2015, a jury ordered the anesthesiologist and her practice to pay him $500,000, including punitive damages.

Insurers acknowledge that the practice of patients recording office conversations with physicians has become commonplace. CRICO, the insurance program that serves the Harvard University medical community, said it has become a usual practice. Risk managers at individual hospitals establish guidelines about the requests.

The Doctors Company, the nation's largest professional liability carrier based in Napa, California, on the other hand, generally discourages the practice.

"The issue requires balancing potential privacy and liability risks with the potential benefits of improved patient recollection of instructions and treatment adherence," said Rich Cahill, vice president and associate general counsel. "On the plus side, patient pamphlets and other educational materials handed out at office visits are often lost or forgotten, and patients forget or remember inaccurately a significant portion of information shared at the doctor visits. Patients who have a better understanding of their condition and treatment plan are more likely to be actively engaged."

Pitfalls of Recordings

"Despite these potential benefits, it's typically not the best course to allow patients to record the appointment," Cahill continued. "The recording devices could be disruptive and could be potentially intimidating to physicians and staff. In addition, these recordings—unlike the electronic health record—can be altered and manipulated to create an inaccurate portrayal of what actually occurred. The recordings can also easily be streamed or posted online, raising the issue of patient and staff privacy and compliance with the Health Insurance Portability and Accountability Act."

Cahill further noted, "Recording the visit may inhibit the flow of information between the doctor and patient. Patients may be less likely to be open about sensitive health issues because of the fear that the recording might be listened to by an outside party."

"The official record of the office or clinic visit is the office chart," he stated. "Digital audio or video recordings are not part of that official document, are inevitably incomplete, are easily manipulated to provide an inaccurate picture of the visit, and most likely are inadmissible in court."

If a physician discovers that a patient is covertly recording a visit, the doctor should "state that the visit is terminated, that a follow-up appointment will be scheduled, and that a repeat occurrence may result in discharge from the practice," Cahill said. "Practices should clearly explain the office policy of opposing such recordings. If the patient or family adamantly opposes the policy, it is likely that the critical element of trust on which the doctor/patient relationship is based has been irreparably eroded and that termination may regrettably be necessary."

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