Should patients be allowed to record their doctors?

You are about to explain some exercises you'd like your patient to do for her injured neck. She holds up her phone and asks if it's OK to record your advice so she can remember it better and so she can share it with her caregiver.

Should you let her?

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It’s a question more physicians may be facing soon. Cellphones are ubiquitous and patients are increasingly accustomed to using these tools to document their daily lives. Indeed, one recent UK study showed that 15% of patients are secretly recording doctor visits already.

The study also found that 11% of patients said they knew someone who had done this and 35% said they'd consider secretly recording in the future. Another 34% would record if given permission.

Smartphones are transforming professional conversations, says the study’s author, Glyn Elwyn, MD, a professor at Dartmouth Institute for Health Policy and Clinical Practice and former primary care physician. "Patients are beginning to understand that they have a legitimate right to request a recording."

Elwyn and other researchers at Dartmouth have found that patients want to record visits to help them better remember and understand the information, as well as to share it with caregivers-not for malicious reasons or to support a lawsuit.

Yet, these are common objections to recording that some physicians have, Elwyn says.

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"We hear the concerns-'I don't want it used in litigation against me' or 'I'm very wary about the motives of the patient.'"

Another issue is a confusing legal picture with laws that vary by state and haven't kept up with technology, as well as lack of clear guidelines from medical associations, says Elwyn, whose group is working with organizations to try to help them come up with policy.

Next: "It's unprecedented and untested"

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.

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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.

Next:  "Their own private personal motivation"

Most likely to use it are those with family members in different parts of the country and even the world, Ryan says, such as retirees who give permission to their children to access their EHRs – to log in and listen to office visits. This can help children see what's going on with their parents; they then can enter comments into the EHR to communicate with him about their concerns.

Ryan also has found that some patients like to replay his words of comfort and advice about handling anxiety or depression.

"They'll listen to that and kind of use it as their own private personal motivation," he says.

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Benefits to physicians, Elwyn has found, include an enhanced relationship with patients, greater trust and loyalty by patients and knowing that your patients are understanding what you’ve told them.

The University of Texas Medical Branch in Galveston has been offering free digital recording devices to oncology patients or encouraging them to use their smartphones since 2009. The benefits include “more patient-centered care with the potential for fewer errors, if the patient listens again,” as well as the ability for caregivers who aren’t present to hear instructions, says Meredith Masel, director of the Oliver Center for Patient Safety and Quality Healthcare, which runs the program.

The American Academy of Family Physicians hasn’t issued guidelines to members on this topic, says John Bender, MD, who serves on the board of directors. Bender, who is also a primary care physician at Miramont Family Medicine in Fort Collins, Colorado, says he hasn’t had a patient ask to record him yet.

But, says Bender, he can see how patients can benefit from recording physicians in certain situations, such as during a cancer diagnosis.

"Sometimes when people hear the word 'cancer,' they don't hear anything after that," Bender says.

If recorded content is used to help patients "get to a new position of wellness and patient engagement," says Bender, "by all means let's do this... It's not necessarily something to be feared."