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Patients Recording Clinical Encounters: Opportunity or Threat?

By Yolanda Sims, JD, MHA
KAMMCO Loss Prevention and Risk Management Advisor


I am often asked if it is illegal for a patient to covertly record their provider during an office visit. Depending on where the recording takes place, it may not be illegal. Several states including Kansas and Missouri are one party consent states. This simply means only one party to the recording has to grant consent. Ideally, a patient should ask for permission, but in most cases, they do not. Recorded patient encounters are a great way for providers, patients and caregivers to collaborate and come to an agreement about a health care decision. Recording a conversation can yield great benefits for all parties involved in the care of the patient. Patients can replay the recording at a later date as a reminder to be compliant. In the special case of an elderly patient, the recording can be shared with family members or a caregiver to help ensure the person adheres to certain instructions such as a low-fat diet or medication regimen.

However, not all uses of recorded patient encounters are deemed beneficial. Secretly recorded conversations can undermine trust and erode the physician-patient relationship. When a conversation is recorded without consent, the nature of the relationship can change dramatically. Another concern is clinicians feel that a recording will be used against them in a professional liability case and their fears are not unfounded. Patients have been known to record conversations with the intent of filing a claim, not to mention how statements from the recordings can be misunderstood or taken out of context. Fortunately, statistics show it is more likely that it will be used to enhance communication and improve care.

There is no consensus on this topic and clinician reactions have been mixed. As noted by one author, patient recordings of clinical encounters are unavoidable unless providers want to get into the dubious business of temporarily confiscating their patients’ phones. Clinicians have to decide for themselves if patients recording clinical encounters are opportunities or threats. One easy way to show patients that you support or prohibit recording encounters is to post signage. Examples may include “No Audio or Video Recording without Express Permission” or “Patient Encounters May Be Recorded When Provider and Patient Agree”.

If you decide to embrace technology and allow patients to record, establish some control over it and create policies and procedures that include the following best practices:

  • The recording device should remain in plain sight.
  • Decide when it is OK to record encounters and when it is not.
  • Specify that at no time should recordings be shared or uploaded on any social media websites.
  • Agree on times when recording is forbidden, like during a physical exam. Also, everyone should agree to pause the recording when a sensitive topic such as sexual health comes up.
  • Remind all parties that HIPAA standards do not apply to patient-initiated recordings kept by patients.
References
Goar, E. (2018). Tale of the Tape: Medicine’s Surprising Embrace of Recording Patient Encounters. For the Record, 30(7), 16.
Lahey, T, Elwyn, G. (2017, July 10). Go ahead and hit “record” in the doctor’s office. Retrieved from https://www.statnews.com/2017/07/10/record-doctors-office-patient-visit/

Rodriguez M, Morrow J, Seifi A. Ethical Implications of Patients and Families Secretly Recording Conversations with Physicians. JAMA. 2015; 313(16):1615-1616. Doi:P10.1001/jama.2015.2424
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