T

he elderly woman’s right knee was bright red and twice its normal size. Her doctor explained that her prosthetic knee joint was infected and would have to be removed — antibiotics alone couldn’t cure her.

Her doctor (T.L.) began discussing treatment options, but the patient stopped him. “Do you mind if I record you?” she said, picking up her cellphone.

Surprised, the doctor leaned back in his chair.

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This simple request can elicit starkly different reactions from patients and clinicians.

Many patients say they want to record clinical encounters. Doing this can lessen the anxiety of trying to remember and understand what was said. Most patients who are given a recording of a clinical visit share it with loved ones, suggesting that recordings can help patients better engage their support networks. One recent study even indicated that recording clinical encounters can help poor people living in rural areas feel less disenfranchised when seeking health care.

But doctors worry that recordings could undermine trust between them and their patients. Will patients be candid about health behaviors, including sex and drug use, if the conversation is recorded and potentially discoverable by others? Doctors also worry that recordings could be used against them in malpractice suits, or made public in some way. That fear is well-founded: A few clinical encounters have been widely — and embarrassingly — shared on social media.

Our hospital recently posted a sign saying, “Please Respect Our Patients’ Privacy — Recording Is Not Permitted.” While this sign was motivated by a concern for patient privacy, clinicians have good reason to wonder if their privacy is respected to the same degree. From 15 percent to 26 percent of patients admit to covertly recording their doctors.

Like all good medicine, patient recordings of clinical encounters have real risks, from undermined trust to violations of privacy. Fear of risk, however, shouldn’t distract us from realizing the very real benefits that can come from allowing or even offering patient recordings of clinical visits any more than fear of side effects should stop us from prescribing effective medications when they are needed.

And let’s face it: The technology is too ubiquitous and too easy to use. Patient recordings of clinical encounters are unavoidable unless providers want to get into the dubious business of temporarily confiscating their patients’ phones.

To embrace this new technology, and also to establish some control over it, one of us (G.E.) argues Monday in the Journal of the American Medical Association that clinicians should encourage their patients to record clinical visits and that we should develop guidelines for their use.

Such guidelines can clarify when it is OK to record encounters and when it isn’t. Guidelines can mandate that patients ask permission to record, congruent with the law in many states. Patients recording an encounter should keep the recording device in plain view, and everyone should expect to hit pause when a delicate topic like sexual health comes up.

We can also agree on times that recording is forbidden, such as during the physical examination or when the privacy of other patients would be compromised. Placing limits on sharing recordings of clinical visits on social media would also be a good idea.

Beyond ensuring consensual and prudent use, providers should harness the power of patient recordings in shared decision-making. We can encourage patients to review recordings after a clinical encounter and help them tag portions of it for future discussion.

Institutions, too, can incentivize the use of patient recordings and help protect clinicians from undue malpractice risk. The Barrow Neurological Institute in Phoenix, for instance, provides extra support for malpractice defense for clinicians who agree to encourage patient recordings of clinical visits. In the rare event litigation arises, an accurate record of good medical care can serve doctors as well as patients, and patients say they trust providers who are transparent enough in their practice to encourage recordings.

So what did the doctor of the elderly women with the infected knee do? He agreed to let her record their conversation. They discussed the pros and cons of various treatment options, which she later shared with an out-of-state daughter. The patient ultimately chose to go through with joint surgery followed by intensive antibiotic therapy. En route to a cure for her infection, the patient was still fearful, and still in pain, but she and her daughter said that being able to record the complex conversation helped them make the best of a tough situation.

Tim Lahey, M.D., is a physician, researcher, ethicist, and associate professor at the Dartmouth Institute for Health Policy and Clinical Practice, where Glyn Elwyn, M.D., is a physician, researcher, and professor.

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  • See my previous post.
    I would like to add this bit of information for you, before you get all bent out of shape and attempt to attack me.
    A new JAMA article out of the University of Texas Health Science Center ask about patients and families secretly recording physician conversations. With cellphones and tablets, recording is quick, easy, and can be surreptitious. The article discusses the pluses (patients can revisit conversations, more accurate “notetaking,” knowing what’s going on when one is unconscious or family is not around) and minuses (attacking physician reputations on social media, creating evidence for a lawsuit). The authors recommend that if the physician suspects a patient or family member is recording a conversation, that the physician assents and takes this opportunity to improve communication. They suggest that the technology genie is out of the bottle and opposing is only likely to damage the physician-patient relationship.

    This is not the first article to discuss this issue. In 2012, American Medical News published an Ethics Forum Q&A on this topic. In 2014, an article on “Patientgate” (clearly a reference to Richard Nixon’s propensity to record all of his conversations, and the Watergate case) was published in BMJ. A physician on KevinMD discussed the ethics and patient requests to record that he had dealt with in practice in 2014.

    Under federal law, audio recording is permitted if at least one party to the conversation has given consent, which is the default for 38 states. Only a dozen states (California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington) require that all parties in the conversation give permission.

    A physician’s nightmare scenario actually happened in 2014. A patient openly recorded physician instructions before his surgery in pre-op. However, he forgot to turn off the recording and the cellphone was on his person when he was brought in the OR. It kept recording during surgery and the OR chatter was recorded. The patient sued his doctors when he found doctors talking about wanting to “punch [him] in the face,” and calling him a “wimp” and “retard.” They even make derogatory comments about his genitalia.

    Given this presumption that more patients will record conversations—openly and secretly—to help them remember and to catch physicians in wrongdoing, I propose that like the police, physicians should adopt bodycams. Or, there should just mounted cameras in all clinical areas.

    This concept was raised by Dr. Miles Riner in 2012. He suggested physicians record physician-patient conversations and make those recordings available to patients to help with their education. Riner cited a study where it was found patients do not remember much information given to them by the physician. Recording and making it available to patients, he proposed, could help alleviate this problem.

    If physicians make their videos available to patients, then there would not be a need for patients to secretly or openly record. Permission for audio recording does not have to be secretive for the physician; he or she can include this information in the consent form. A notice can be placed in clinical areas that “audio recording is in progress.”

    Some may argue that this is a HIPAA violation. But it may not be. If the patient is informed, if the recording becomes part of the medical record, and if the recording is given the same protections that all electronic records should have, then HIPAA may be satisfied.

    Besides providing patients with additional information, and giving protection to patients and physicians in the event of misunderstandings or legal action, such recording can have other benefits: Such records can be used in educating health care providers. When medical and nursing students have patient conversations, the recording can be reviewed for training purposes. These records would also be helpful in quality, safety and performance improvement; in research; and in documenting abuse cases.

    If the death of privacy means constant surveillance, livecasting of our lives, and recording our interactions becomes the norm, then physicians should be recording. With physician control, patients will have access to the material relevant to their care. Irrelevant material would not be made available, thus avoiding cases like the Virginia lawsuit. A physician record would help to ensure that a patient’s secret recording that is posted social media posting not edited or taken out of context. With an independent recording, the true story could be heard.

    Patients can be told that personal recordings are not permitted because a professional copy can be made available on request. Like the “no guns allowed” signs that have appeared everywhere to combat the intrusion of firearms into our lives, perhaps a “no recording” sign can also be adopted.

    I have suggested audio recording only as the potential for loss of privacy and embarrassing video diminishes. Visual images create a whole new level for losing privacy and confidentiality.

    The heroine of The Circle realizes that the constant streaming of life creates an oppressive society and she fights to stop it, unsuccessfully. As in the novel, the ethics of life recording are happening fast and the law needs to catch up.

    This entry was posted in Featured Posts, Health Care, Privacy and tagged professionalism, recording. Posted by Crai

  • I informed the health care system that my doctor was outright lying in his medical reports as to what was said and done in the office visits. I told them that I would be taping all future office visits in order to compare those tapes to the doctors written reports, because SSM health offered zero help in the matter. The tapes would prove exactly what was going on and that the doctor was simply creating things in his reports, while electing to omit other crucial information. They acted as if they didn’t even have a venue to deal with this problem. Instead they instructed me to report the doctor to his own office manager,…whom he hired. This is SSM health. A huge outfit, and they wanted me to inform the employee of the doctor? That’s it? It would have been funny if it wasn’t so pathetic.
    I began taping my doctor visits and sure enough there were lies after lies. They were malicious and defaming for any other doctor to read, when I sought their advice for further treatment. This doctor effectively built a “wall” around me and I could not get proper treatment anywhere. I was routinely turned away before other doctors had even seen me. They were accessing the electronic health record format and communicating with the offending doctor (behind my back, and without accepting me as their new patient. Pre screening me, in effect. Only to reject the new patient application.) All the while the offending doctor was charging me money for the office visits in which he was creating all of these lies. He was getting paid while he did all of this nonsense!
    When I had more than enough documentation and tape recordings to convict in court (I am former law enforcement) I contacted SSM again. Do you know what kind of “help” I received? I was terminated as a patient and BANNED from all of their facilities…. for having to suffer through my illness, undiagnosed, untreated, unable to get an independent evaluation, because their doctor COMPLETELY fabricated negative events and negative conversations in my medical files (files that are considered “legal documents”)…. and for having gathered (Remember, I had to, because they offered no help in the matter) actual, indisputable proof of the fact that the doctor was lying profusely in his medical reports.
    I spent the next 6 months trying to get a new primary care doctor. One who would listen to what I was saying and inspect the evidence. I found such a doctor. He told me that he had a good idea of what had been going on. He did not elaborate on it. I know what he was thinking though. He then gave me necessary clues to come to the correct conclusion ( It had been to cover for incompetence).
    The new doctor then told me “Today is your new, 2nd birthday”, as he lightly slapped his laptop. Then, he said “Today, we start a new record, a new book”. God bless that man. He has even called me late in the evenings to discuss my serious health condition.
    So if you doctors wish for us to have some kind of sympathy for you because someone wants to record what is actually said and done, during your office visits, then you likely have some thing going on that you wish to conceal. Things that you do not want preserved. Things that can be compared to your reports. Things that can show that you speak out of both sides of your mouth and that you do contradict yourself. Things that reveal that you are not as honest, straight forward, correct, or ethical,… as you would like the public to believe that you are.
    The fact is, it is legal to tape record if your safety or health is at stake. At least at the time of my taping, it was still legal. Now, with all of your clout with the lobbyists, I am sure that your industry will be rallying to get the law changed,…soon.
    The fact is though, if you had nothing to hide or fear ( future and past included ), you wouldn’t have a problem with a patient bringing a tape recorder in your office. Honesty is the best policy. The tape recorder is your impetus for honesty.

    • Exactly. I am convinced my workman’s comp doctor is in the insurance company’s pocket. I am not getting the care I need. I can not afford to pay all medical expenses out of pocket, and my own insurance won’t cover a work related injury. I just want to get better. I am scared, in constant pain, am barely able to sleep, and am angry. I wish I had recorded the first office visit in which the physician stated lies that clearly contradict my MRI and dismissively responded to my questions with more lies. I wish I had recorded the contradictory statements he made. I willl be recording the follow-up visit. Trust is not a right. It is earned. Proper medical care is a right.

  • Hmmm not finding what i need. My privacy was invaded in the consult by the doctor intorducing third parties NOT involved in my care. what does the law say/ how do i proceed?

  • As a pediatrician, I find that if I neatly print the diagnosis and treatment plan, and then review it with the parent or guardian, there is no need to video or audio record my visit. A preprared information page from our hospital system is useless. In all honesty, if there is more than one problem, or a two step plan for a problem that is discussed during a visit, it is actually easier to identify and resolve pitfalls with a written plan reviewed with the family.

    • Great points but if the patient is more comfortable in recording the conversation then she/he must be allowed to record.

  • the only thing MDs are worrying is being potentially held liable for misdiagnosis or wrong/biased therapeutic recommendations

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