COMMENTARY

Can Patients Record Office Visits?

Joseph S. Eastern, MD

December 16, 2020

Recently I posted a simple question on several social media pages and internet blogs populated exclusively by board-certified dermatologists and dermatologic surgeons: How would you respond to a patient asking (or demanding) to record all or part of their office visit? (Or, if you have encountered such a situation, how did you respond?)

The question was simple, but the answers were somewhat complicated.

First, I noticed a fundamental misunderstanding of applicable laws: Many practitioners apparently believe that taping or recording a private conversation is per se illegal. Perhaps they are conflating with wiretapping laws, which don't apply in this situation. HIPAA laws don't apply either, because the patient, by definition, is waiving the right to privacy by initiating the recording in the first place.

In fact, every U.S. jurisdiction permits the taping or recording of doctor-patient conversations; and only 11 states (California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and Washington) require the consent of both parties. All other states and territories actually allow it even if one party has not given consent. And some patients don't ask permission at all; they just do it.

Another misconception was the perceived frequency of such situations. Recordings of conversations in the doctor's office are by no means rare. A 2014 survey in the United Kingdom revealed that 15% of the public had secretly recorded a clinic visit, and a further 11% were aware of someone else doing the same, a topic discussed by a Dartmouth group in the Aug. 8, 2017, issue of JAMA.

In general, younger respondents to my (admittedly unscientific) informal survey tended to be less receptive to being recorded. "I do not allow recordings by patients because I can't control how they may be used later and it's just creepy," wrote one. "It just seems a strange way to begin a trusting, transparent patient/doctor relationship … this is not Instagram."

"I will sometimes let them take a photo of a specimen or a defect but I don't allow recording," wrote another. "Same reasons; creepy and out of my control. I worry about it happening surreptitiously, but what can you do?"

You can proactively prohibit all office recordings by posting a "no recording" sign in your waiting room in the name of confidentiality and privacy. Should a patient initiate a covert recording anyway, you have the option of terminating the visit with a warning that a repeat attempt will result in discharge. If you practice in one of the 39 one-party states, the recording would still be admissible, but your notice gives your attorney an argument – specifically, that the patient made the recording after being expressly directed not to do so – if anyone ever tries to use the recording against you, or without your permission.

Older, more experienced practitioners in the survey tended to be more sanguine about recordings. "I have allowed patients to record all or parts of the visit," wrote one. "I even allowed a patient to film a [liposuction] procedure. My decision … was that the patient might think I had something to hide, which I [did not]."

Another reported, "I have no problem with patients or family recording office visits or procedures. When someone is recording a procedure, I have no problem ignoring them."

"We don't have anything to hide, after all," affirmed another. "In the era of telemedicine, many things can be recorded, even without permission."

Several other veteran practitioners summarized my own philosophy on the subject: Patients have a right to record visits in my state (New Jersey), whether I like it or not, so I simply assume I'm being recorded during every visit, and conduct myself accordingly.

Risk managers and malpractice carriers are divided on recordings. At one neurology clinic in Arizona, patients are routinely offered videos of their visits, and clinicians who participate in these recordings receive a 10% reduction in the cost of their medical defense and extra liability coverage. There are clear advantages to having a permanent record of a doctor's professional opinion. Other carriers are not as supportive, discouraging their insureds from allowing recordings to be made.

In the end, like it or not, recordings are here to stay, and the omnipresence of modern communications devices such as smartphones, tablets, etc., will only increase their prevalence. My advice: Familiarize yourself with the laws in your state, and never say anything during an office visit that you would not stand behind, if it ever turns out to have been recorded.

Eastern practices dermatology and dermatologic surgery in Belleville, N.J. He is the author of numerous articles and textbook chapters, and is a longtime monthly columnist for Dermatology News. Write to him at dermnews@mdedge.com.

This article originally appeared on MDedge.com, part of the Medscape Professional Network.

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