Laws on the matter differ by state and can be murky, Elwyn says. Most states say recording is legal if only one party agrees to it—meaning a physician doesn't have to agree to a recording for it to be legal for a patient to do it. However, 11 states require the consent of all parties: California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania and Washington.
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But what if a physician is doing a telemedicine or telephone consult, with one party in a single-party consent jurisdiction and the other party in an all-party jurisdiction?
"Nobody knows that," says Elwyn. "It's unprecedented and untested." Also unclear are rules regarding social-media sharing.
HIPAA presents another area of complication. If the patient owns the recording, HIPAA doesn't apply, but does so only if the organization initiates it, says Elwyn. However, some physicians are beginning to offer recording services to patients and store recordings for them on patient portals. Elwyn says it's unclear whether these recordings would be considered to be patient-owned and therefore HIPAA-exempt.
Elwyn's team at Dartmouth is working with several of these practitioners to develop an easy-to-use recording service that will store recordings in a secure site online, where patients can search by keyword to quickly find their doctor's words on given topics.
James Ryan, DO, a family doctor in private practice in Ludington, Michigan, is one of the physicians contributing to Dartmouth's research. Ryan spent about $30,000 developing a customized electronic health record (EHR) system that incorporates audio recordings that patients can access online. These recordings are annotated so that patients can easily call up relevant audio about specific topics.
Ryan began offering the service about three years ago to patients over 50 or those with complex conditions. About 500 of Ryan's 2,000 patients have access to the service, with about 10% going online to listen to recordings.