When a Patient Wants to Record Their Doctor Visit...

audio recording malpractice risk medical office physician office recording law recording policy risk management state law whitecoat Feb 04, 2019

Another day in the office (Not!)

Receptionist: "Mrs. Jones, the doctor will see you now."

Doctor in the room: "Hello Mrs. Jones, what can I do for you today?"

Mrs. Jones: "Before we get started, I would like to let you know that I will be recording our visit today...."

Ok, now what?

It's not a question of if this will happen, but a question of when this will happen in your office. And furthermore, it's likely that you have already had your visit recorded by a patient or someone with them, without your knowledge. Some studies have suggested that perhaps up to a quarter of patients have recorded their physician visit. Some with the doctor's knowledge...many without.

In this "digital age", such recording will surely become more common, and in some cases, embraced, by patient advocacy groups, as well as health care groups, insurance companies and others who feel it helps improve patient communication and understanding. In some respects, they are all right. This will increase. And if done properly, it could be used to improve the patient experience. The question is: Will you be prepared?

What's legal In Recording Conversations?

Laws regarding the recording of conversations between two individuals varies from state to state. There are one-party states, where just one of the two or more parties has to be aware of the recording. That's the current law in 39 states and Washington D.C. The remainder are all party states (California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Nevada, Pennsylvania, and Washington) where all parties must be aware of the recording for it to be legal. (NOTE: This article does NOT provide legal advice. All information provided should be confirmed by experts who are knowledgeable about the legal aspects of this topic.)

One party states would allow patients to record their doctor visit without the physician's knowledge. All party states would not allow recording without your knowledge and permission.

What Are The Benefits Of Recording?

When patients record their visits, they often listen to the recording at a later time. That can be an enormous benefit to ensure patient compliance. Sometimes instructions and specifics treatment descriptions confuse patients from information overload and distraction during the visit. With a recording, they can re-listen to your instructions to help improve clarity, understanding, and compliance. Its been published that up to 70% of patients who have recorded a visit either listen to it again themselves, or have another person review it. Patients who record their visits also seem to feel better about the visit than those who have not recorded it.

For the physician, a recording can be a significant defense element to document communication and recommendations when there is an accusation by a patient that revolves around communication of data, or lack of it. It can also help document the answers of patients and their completeness of history.

What are drawbacks?

Recordings capture all audio in your office. This is a two-edged sword. It captures ALL conversation between you and the patient. For that reason, you must be exact in your verbal communication. Body language, nods, and other non-verbal communication, regardless of importance or insignificance, will not be recorded. That non-verbal communication may dramatically alter the interpretation of verbal communication between you, the doctor, and the patient, yet that component of the interaction will not be reflected in the recording.

Recorders and microphones pick up all sound, often much with greater sensitivity than we have. It is possible (or maybe even likely) that it will pick up conversations between other patients and their physicians, nurses, receptionists or others, without their knowledge or consent. That includes other conversations in other exam rooms, hallways, and reception areas. Simply put, that could result in a HIPAA violation that you could be held responsible for. (Be sure to provide background music to help "mask" conversations in other locations.)

Recordings also create a document that can be used for, or against, you in a court of law. What you say in such situations should be accurate, unambiguous and defendable in a court of law. Be sure that you don't say anything that can be interpreted in a negative manner or in a different way. Be clear and unambiguous.

Recordings can be changed and modified very simply with the sophisticated tools that are now available. This can potentially can be a significant problem if it is modified in a manner which is not favorable to you or with nefarious intent. To combat this, it's important that you have an independent recording of the same conversation as a defense and deterrent. Have a system where you also have a copy of any recording made in your office.

What to do - Suggestions

What you decide to do in your office depends on the state you live in, as well as the comfort level that you have about recording. Here are some suggestions that should be considered in the creation of your own in-office recording policy:

First and foremost, you and your entire staff should treat every patient verbal interaction as if it were being recorded. It might be!
Your policy should be complete and written out.
- Have an office policy AND a patient-specific notification.
Your policy should be available for all patients and visitors to review. A notification sign may be warranted in the reception area. Put it in a location where it will easily be seen, and not "hidden" in the corner of the waiting area. Make it sufficiently big to be easy to read and hard to miss. Consider posting "Audio or video recording in this office is permitted ONLY with prior notification and permission of the staff and in an exam or consultation rooms" (or something similar).
Your policy must comply with your local laws. Be sure to make this location-specific. If you have offices in different states, be sure your policy is legal for each state. Reference those laws in your posting.
The policy must be understood and enforced by all office staff members. Educate them on how to deal with an unauthorized recording by patients or other anticipated issues.
Regardless of the state (one party vs all-party), you may elect to have a policy in your practice of "No recording without all parties permission." It is your office, you can set the rules, provided they do not violate applicable law.
Last, consider a policy that may actually endorse recording. By doing so, your patient compliance and satisfaction may improve AND it's likely that "hidden" recording will be reduced because of the clear acceptance of recordings in your practice.

Recommendations if a patient wants to record a visit

The recording is only permitted between the physician and the patient.
A recording is only permitted in the examination room or consultation room the patient is in, with the door closed for privacy.
All recorded visits must be in a room which is sufficiently removed from the rest of the office OR soundproof to eliminate the risk of recording other patients and physicians.
Have an "if you record, I record" policy. Keep your copy of that conversation permanently with the medical record. Some EMRs may allow uploading of such files to the permanent record.
When recording is performed, start the recording with a script (yes, a written script to be sure you get all of these elements documented in the recording) that includes..
- Who is in the room
- Date and time
- Nature of the recording (i.e. routine office visit)
- Verbal (or written) permission documented by all parties.
- A statement that the patient is also recording the visit.
- A statement of any limitations on the recording.
  - Example, you may state: "Broadcast or dissemination of this recording or transcription of this recording in any manner is prohibited"
- A full recording of the visit (no on/off or editing)
- Then provide a statement immediately prior to stopping the recording.
Have the patient repeat back your instructions. That practice will improve their understanding AND document it on your recording.

You may consider offering that the patient record a summation of the visit, or you may provide it to them. Such recording may be a 2-3 minute "recap" of the patients visit that you both record. By doing that proactively, you can provide this option to the patient and ensure that the recorded portion of the visit provides all of the pertinent findings and instructions, including medication changes and administration instructions.

Patient Recording Summary

The issue of patients recording office visits is a difficult one for many physicians. However, it's better to be prepared for this inevitable event than to ignore it. Reviewing the various aspects of audio recording in your medical office, including legal aspects, will help you prepare for patient recording requests. In all cases, check with your attorney or other experts when creating your specific office policy.