As smartphones become ubiquitous, physicians should expect to encounter a challenge that is creeping into many other walks of life: Should patients be allowed to pull out their phone and record their exam? Experts discuss why this trend is coming, and what physicians can do to both protect themselves and meet their patients’ needs.
Recently, a group of medical residents brought copies of a disturbing article to Jennifer Caudle, DO, an assistant professor of family medicine at Rowan University School of Osteopathic Medicine in Stratford, New Jersey. The news story was about an anesthesiologist who had made derogatory remarks about a patient during a colonoscopy. The patient was under anesthesia and sleeping but, according to published reports, had pressed a button on his smartphone ahead of time to record the doctor’s post-procedure instructions.
The consequences were real: The patient sued for malpractice and defamation, and a jury ordered the physician to pay the patient $500,000.
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Caudle found the impromptu discussion with the residents about the case to be a valuable teachable moment. “They were shocked and disappointed but it brought up some good points about how we behave, how we talk about our patients, how we remain empathetic,” says Caudle, who is also the spokesperson for the American Osteopathic Association.
Such spontaneous discussions are likely to arise more often at medical schools, physicians’ offices and hospitals in the future. With greater numbers of Americans now carrying smartphones and even smart watches, it is easier than ever for patients to record what physicians say in medical offices—whether medical professionals know this is going on or not. “It is definitely happening more, because the technology is there,” says attorney Aldo M. Leiva, JD, chair of the data security and privacy practice at Lubell & Rosen, LLC, headquartered in Ft. Lauderdale, Florida.
A growing trend?
No one knows the full extent to which such recording is taking place—given that some patients record visits without mentioning it—but it is increasingly likely that primary care physicians will have to address it in a formal way with their patients at some point, say experts. “I think it is becoming more of an issue,” says attorney Gary Sastow, a partner at Brown, Gruttadaro, Gaujean & Prato PLLC in White Plains, N.Y. who represents physicians. “I would suspect that over the next months and years you’ll start to see doctors having policies.”
One reason is to prevent lawsuits or public relations problems, says Sastow. He points to the case of a patient who suffered cardiac arrest and died after having knee surgery at a medical center in Lorain, Ohio. The patient’s family had secretly recorded the hospital’s chief medical officer, who said a blood analysis had been delayed because of malfunctioning medical equipment, and used that recording in a wrongful death suit, according to a 2012 account in Outpatient Surgery magazine.
The case was complicated, but essentially the hospital argued that the medical officer’s comments could not be used in the case; both a trial court and appeals court issued denials. “The hospital said you can’t go around and record people, but the courts said only one party under Ohio law has to consent,” says Sastow.