Sharing the Tape With Others
Using the “record” function on many smartphones allows patients to replay the conversation later, and write down their questions and concerns. When patients come prepared with a list of specific questions or with a tape recorder, it may help communication and understanding. The tape can be shared with family members, who can be a good ally, especially when the patient’s mental capacity is in question, the disease or treatment has emotional repercussions, or the patient is noncompliant. The family may be more rational and may help patient treatment.
Many companies offer prerecorded audio or videotapes on specific diseases or treatments. This is safe for you, because there is no possible omission or error on your part. Doctors often provide printouts and recommend good websites, books, and even tape recordings; all of this information (by providing these references) will become part of your record and your evidence.
There are also physician projects in which doctors provide a cell phone application that records doctors’ visits. Patients can ask physicians to repeat medical instructions at the end of a visit, or the patient can repeat the advice into the cell phone recorder. The recording is transferred to the patient’s computer to replay at home.
If you decide to allow the patient to record your conversation, be sure you are as clear and articulate as if you were writing it in the medical record. But people tend to get more formal when they know they are “on,” so remember to be warm and compassionate.
If you decide that you are not comfortable with the recording, you must discuss this personally with the patient and discuss your reasons. You may feel that the tape would interfere with the therapeutic process, especially if you are in a specialty such as psychiatry. You can suggest that the best solution could be for the patient to take notes and to ask questions later if needed.
If the patient makes a tape, you may want to ask for a copy. Another tack would be for the physician to record at the same time. After all, you can’t be certain that the patient will make you a copy. You can make a recorded explanation to this effect: “Mr X has requested my permission to record our conversation and I am also making a copy. Is that okay, Mr X?” He agrees—”Okay, let’s begin.”
Save a copy of any tapes. As always, document everything.
Bad Reasons for Taping a Visit
What if the patient’s answer to your question of why he wants to record is, “Because my lawyer told me to?”
This is a patient you probably want to refuse. You will probably have to treat the patient for that day. But you can very politely request that they refrain from recording. If you have a question about whether your malpractice carrier will extend coverage, you can explain to the patient that you have to get an answer to that question first. Remind patients that they can take notes while meeting with the doctor in order to remember important information. Emphasize that the conversation will also be documented in the medical chart.
One example is an outraged obstetrician/gynecologist who asked a patient why she wanted to videotape her appointments. In the doctor’s words, “She said her lawyer told her to tape every visit, [because] sooner or later I’d make a mistake and then she could make lots of money. I dismissed her from the practice.”
The doctor/patient relationship is a contract, and you can make freedom from recording a condition of your treatment. The patient may leave, or you may have to provide treatment at that appointment and then terminate treatment with the traditional 30-day letter.
Your Patient Might Not Always Ask
A global survey by an analytics company has revealed that 80% of people would like the option to use their smartphones to interact more with healthcare providers.[1]
One regional hospital created an audio recording of what the patient was told at discharge and was available by phone or by email. The conclusion drawn is that it improved patient satisfaction and actually reduced 30-day readmissions by 15%.
But patients may be reluctant to ask about using a smartphone. They don’t want to do anything that prevents the doctor from trying his or her best to raise expectations about realistic outcomes and build trust. They fear that if they simply slide out their smartphone, it may turn out to be a trust-busting move. Patients don’t want to lose that human touch.
On the other hand, the patient may see asking to record appointments as a way to signal that he or she is committed to being an active and informed participant in his own care.
You might also think about business considerations. If the patients prefer doctors who allow recording, they may seek out such practitioners. So allowing patients to tape may be a way to increase your patient base.
Surreptitious Recordings
The only thing worse than the patient who asks to record you for legal reasons is the one who never asks—and just records you surreptitiously.
The one saving grace is that the surreptitious audiotape may not be admissible in court. A consented-to tape is admissible. But whether a secretly recorded conversation with a doctor is admissible depends on the state.
In most states, only one party must consent to a recording, meaning that the person initiating the recording has the right to record without the other party’s knowledge. The majority of states have similar recording laws. About 12 states require consent by both parties; in those states, surreptitious recordings would be inadmissible.
In practical terms, audiotapes or digital recordings can be introduced at trial if a proper foundation is laid and the subject matter is relevant. If the purpose of the recording is viewed by the court as a means to inflame the jury to one side or the other, it would be within the trial judge’s discretion to bar the use of the recording. But if showing the recording is intended to demonstrate some sort of improper conduct or negligent medical care, then it could be used.
In an Ohio case, where consent by one party is acceptable, the defense tried a peer review argument. The patient and his siblings met with the chief medical officer to discuss their father’s treatment. The family used a hidden device to record the meeting. During the conversation, the doctor made sympathetic and apologetic statements and admitted fault on the part of the hospital.
The family later sued the hospital and its medical staff for wrongful death, and the tapes would be admissible. The hospital filed a motion that the recording be excluded from evidence because it was derived from peer review activities; however, the motion was denied by the appellate court. Because the discussion was not protected, the court said that a secretly recorded conversation may be used against the physician in a medical liability case. Thus, attempts to exclude tapes from evidence may not be successful.
The tapes can bring you into a malpractice lawsuit or can be used for a lot of other purposes. One Colorado pediatrician volunteered that a secret recording, legal in his state, drew him into a legal fight over a child’s custody.
Doctors will find much support in their medical community for refusing to be taped. Many doctors feel that video or audio recording should not be allowed in the office setting. They opine that recording a medical discussion via video or audio is no proxy for paying attention. And the practice puts both the doctor and the office at significant risk.
One West Coast doctor had a discussion with a patient recovering from surgery and discussed the choices for about 15 minutes. It became apparent that the patient’s daughter was taping the conversation on her smartphone. “I had no idea I was being recorded,” the doctor wrote. Fellow doctors chimed in with near unanimity: Call the hospital’s risk management officer, call your malpractice carrier, and terminate treatment with that patient.
If you want to prevent patients taking smartphone recordings in your office, you should give the patient advance warning. Post the policy with such wording as this: “To ensure confidentiality and privacy, any type of electronic recording is strictly prohibited at any location within these offices. Thank you for your understanding and compliance.” Other actions that could be taken are to draw up a written policy prohibiting the use of recording devices during office visits and include the policy in patient intake handouts.
A good personal approach is to simply assume that patients can use their smartphones to tape and introduce this evidence at a malpractice trial. You could protect yourself by keeping that in mind; it could improve your communication skills, even if there is no audiotaping going on.
The Future of Recording Patient Visits
This problematic issue will probably increase and become more apparent over time. There may be legislation and litigation that will clarify the matter. The law may state that tapes or digital recordings of doctor’s visits are permissible or not permissible, or that the unconsented-to tape is admissible or inadmissible.
We know that patients want to know more. Most patients have a smartphone in their pocket, and it must feel very tempting to slide it out and record. We know this is a time of patient empowerment where it is also to the doctor’s advantage to have the patient participate in healthcare decisions.
If patients want to use tapes, that may be one criterion in selecting doctors. So allowing taping may be good for business.
Tapes may be both bad and good in terms of malpractice: bad if they become incriminating evidence in court, but good if they increase patient comprehension and quality of care.
