Recording Patient-Doctor Encounters Poses Ethical, Legal Challenges

By Carolyn Crist

November 04, 2020

NEW YORK (Reuters Health) - With the ubiquity of smartphones, patients are finding it easier to record audio or video of their medical encounters, which may create ethical and legal challenges, according to two surgeons.

Physicians may consider welcoming the recording as a positive way to build the patient-doctor relationship rather than rejecting it outright, they write in JAMA Surgery.

"These can be challenging and sensitive situations for healthcare providers to find themselves in, and it is important for anyone who cares for patients to actively consider these issues in a theoretical setting before they are thrust into responding to them in a real-life setting," said Dr. Benjamin Ferguson of the University of New Mexico Health Sciences Center in Albuquerque.

"Often, physicians may have a tendency to be categorically close-minded about patients recording their encounters, and the reasons for this are myriad," he told Reuters Health by email.

Dr. Ferguson and co-author Dr. Peter Angelos of the University of Chicago's MacLean Center for Clinical Medical Ethics discuss three scenarios where audio or video recordings may become an issue.

In the first case, a patient seeks a second opinion after being treated for bile-duct cancer. While reviewing the patient's records, the doctor sees that the surgery may not have been necessary and that not all of the cancer was removed due to the difficulty of the operation. During the conversation, the doctor realizes that the patient wasn't informed about the final pathology report, and her husband begins recording the conversation on his phone.

In the second case, a hospitalized patient develops a facial droop and altered mental status following major abdominal surgery. The doctor rushes to the bedside and calls a stroke code. The patient's daughters, who have been there throughout the recovery, become upset and say they're going to sue the hospital. They ask what's happening and begin videotaping the scene.

In the third case, a teen patient undergoes surgery for a gunshot wound, and an infection develops that needs to be drained. The patient pulls out his phone, points it at the wound and begins narrating the procedure. Then he turns the camera toward the doctor and identifies the doctor, following with a pan of the trauma unit that identifies nurses, medical students and other patients. The doctor realizes that the patient is broadcasting the video live on social media.

"In many cases, patients record encounters to ensure well-informed decision making and therefore to preserve autonomy," the authors write. "In others, patients may have ulterior motives for recording an encounter."

Recordings risk the loss of context and can lead to misinterpretation, misunderstanding, privacy violations and litigation, they said, and doctors don't have a reliable way to respond or clarify. However, confronting a patient who wants to record can damage the relationship, and some doctors already routinely agree to allow their patients to record.

"Our foremost recommendation is that physicians strive to treat every interaction with a patient as if it were being recorded and to carefully consider the complex ethical considerations at play," they write.

Wiretapping laws in most states allow one-party consent for recording a conversation, the authors note, but the laws regarding video recordings aren't well-defined and often vary by state, county or city. Recordings are generally allowed in public or situations that don't "merit a reasonable expectation of privacy," the authors write, which can be hard to interpret in medical settings.

"This technology is transforming our capability of documenting interactions - of all sorts. It is now a DIY surveillance society, and we might have to review our assumptions of privacy in public or professional spaces," said Dr. Glyn Elwyn of the Dartmouth Institute for Health Policy and Clinical Practice. Dr. Elwyn, who wasn't involved with this paper, has studied the trend of recording medical encounters.

"Research has shown that the vast majority of patients are recording because they want to remember their doctor's advice. It's not for a 'gotcha' moment," Dr. Elwyn told Reuters Health by email. "Handled well, the idea of recording becomes a benefit, not a threat."

SOURCE: JAMA Surgery, online October 21, 2020.