What to do if your patient is recording you

By Naveed Saleh, MD, MS, for MDLinx
Published May 22, 2019

Key Takeaways

Have you ever had the creeping suspicion that your patient is covertly recording you? Well, this suspicion may very well be true. And, thanks to smartphones and other devices, it’s never been easier.

In a survey-based study conducted among the general public in the United Kingdom, 15% of respondents (n=128) said they had secretly recorded a clinical visit. Furthermore, 11% of respondents said they knew of someone else who had covertly recorded a clinical visit.

However noble the intention, nobody likes to be recorded without their permission. Physicians routinely express concerns over who owns the recordings, whether these recordings could be used in a lawsuit, and whether these recordings may make their way onto social media.

What do the laws say?

The confusing thing about the subject of patients recording their physicians is that wiretap laws, which govern the activity, differ from state to state.

In most states (ie, single-party jurisdictions) only one party, or the person recording, needs to assent. In other states, all parties need to be in agreement about the recording. The following 11 states are all-party jurisdictions: California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and Washington.

It’s a felony to make an unauthorized recording, and affected parties can seek damages, including compensation for harm, attorney’s fees, and so forth. Such recordings are inadmissible in court. In these cases, disseminating these recordings on the internet or elsewhere may amount to an additional violation.

On a related note, recordings done by patients need not be HIPAA-compliant. This probably makes sense because the physician would not know about the recording. Only recordings that are created or received by a covered entity—such as physicians, health plans, and healthcare clearinghouses—need to be HIPAA-compliant.

Can recordings be shared?

Patients who live in single-party jurisdictions can share recordings freely, but this is not the case in all-party consent states wherein all those who were recorded must consent. Reassuringly, most patients don’t share these recordings on social media—likely because they don’t want to share personal details about their health with others, regardless of exposing the physician.

If the recordings are altered by the patient to damage the reputation of the physician, then the physician could take legal action.

How do patients use recordings?

Most patients use physician recordings for benevolent purposes.

According to the findings of one review (33 studies; 18 randomized-controlled trials), patients highly valued audio recordings of consultations, and the majority benefitted from listening to them. In total, 72% of patients listened to their recordings and 68% shared them with a caregiver. Those who received and listened to recordings expressed better understanding and recall of medical information.

What to do if you suspect your patient is recording?

If you’re in a single-party jurisdiction, expect that your patients are covertly recording you. Assuming that every patient is recording you will keep you on your toes. Nevertheless, you can always terminate a visit that you know is being taped without your permission.

To enhance the clinical benefit of the encounter, you can ask the patient whether you are being recorded, give your assent, and then teach the patient about how best to use the recording.

If you’re in an all-party jurisdiction, you can report any covert recording to the authorities. However, unless you feel threatened and no longer want to see the patient, this approach should be reserved for problem scenarios.

On a final note, laws regulating the recording of clinical visits by patients are confusing, and there remains a need for clinicians, patient advocacy groups, and policy makers to create collaborative guidelines and regulatory guidance on this issue. Fortunately, some medical centers currently offer recordings to patients after their visits, thus leaving no need for patient recording.

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