Experts discuss why this trend is coming, and what physicians can do to both protect themselves and meet their patients' needs.
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.
Related:Your best malpractice defenses
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.
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.
There is no easy answer as to how physicians should address patient requests to record medical visits in a primary care setting. As with many changes sparked by digital technology, it has benefits and drawbacks. The big advantage is that recording a physician’s instructions can help patients follow them better-a particular benefit when treating memory-impaired patients.
“People want to feel they are taking charge,” says patient engagement expert Meredith Hurston, MHA, principal consultant at M Squared Healthcare in Brooklandville, Maryland. “They want to better understand what is being said at the doctor’s office and may refer to it later.”
Being able to re-play a doctor’s words can also be valuable if a patient has just been diagnosed with a serious medical condition and, in a state of heightened emotion, finds it hard to absorb anything else the doctor says.
“That’s a very scary place to be,” says Hurston. “You are in a place of fear.” That is why she recommends bringing a family member, friend or patient advocate to the doctor’s office in such situations. When that is not an option, Hurston says, “The recording can also serve as a second set of ears.”
Some physicians, like Caudle, are open to letting patients record their visits. After finishing her residency in 2008, she now sees patients in a family practice in Washington Township, N.J. Her patients, who range from teens to senior citizens, seldom have asked her to record a visit but she knows how she will respond if they do.
“I wouldn’t be opposed if someone said ‘Can I record this visit? I want to make sure I get everything down properly,’” she says.
Still, Caudle hopes patients will be candid with her about their desire to record their interaction-just as she hopes they will be if they can’t afford to take a medication she has prescribed. “As an osteopath and family doctor, my goal is to help patients,” she says. “I really want to help them do whatever they need.”
Nonetheless, Caudle says, the issue is not simple, and she wants the opportunity to give consent to being recorded. “Where that comes from is the importance of our relationship as doctor and patient,” she says. “I’d like you to feel like you can talk to me about it. I’d like to have the opportunity to talk about it.”
As Leiva points out, there are important downsides to letting patients record medical visits, even though the Health Insurance Portability and Accountability Act does not bar physicians from allowing it. The practice can inadvertently put the patient’s privacy at risk if anyone else gets access to the recording and plays it-raising complex issues for doctors, Leiva says. “If it’s an elderly patient who doesn’t want their other relatives to find out about it, what does a physician do in those circumstances?” Leiva asks.
Another worrisome privacy issue may crop up when a physician inquires about a patient’s family medical history, says Sastow. “There could have been discussions about family members or a family history of illnesses where the information goes beyond the immediate patient,” he says.
An additional quagmire is the potential for litigious patients, even those at a primary care practice far from the operating room, to use recordings as grounds for a lawsuit. “It can be a little off-putting to a physician to say `I want to record you,” says Leiva. “It seems like I want to catch you in some type of trap.”
The laws in some states make it harder than others for patients to record medical visits, giving physicians some protection. These states require both parties, rather than just one, to consent to being recorded. That means in states such as Florida, which require both parties to consent, physicians have the right to refuse to be taped, says Leiva. “A Florida doctor could basically object to the patient, `It is illegal for you to record that without my consent. It’s a crime,’” he says.
(For a look at the laws of all 50 states, see the Reporter’s Recording Guide published by the Reporters Committee for Freedom of the Press in 2012. Your state attorney general’s office can tell you if anything has changed since then).
Of course, taking a hard-line stance could be off-putting to patients. “The policy I would recommend is doctors not permit recording without disclosing,” says Sastow.
Leiva suggest another compromise. “You could avoid the potential risks by agreeing to record only the beginning and end of a visit-only the critical information and the presenting complaints for the patient-then turn off the recording during the physical exam and turn it back on when they are discussing what is to be done,” he says. “At the end of the day, it’s about patient relations.”
Ultimately, though, physicians must make a personal decision about whether to allow patients to record. “It is a very sensitive issue,” says Leiva.
Hospitals, leery of lawsuits, often have strict internal policies forbidding patients from recording medical visits. “It’s a real red flag for hospital staff if someone is seen taping,” says Teri Dreher RN, CEO of North Shore Patient Advocates, a firm in Chicago that guides patients through the medical system. “I have had hospital risk managers say `Absolutely not. They will be escorted from the hospital if they do that.’”
The resistance stems from more than fear of malpractice suits, according to Dreher. Hospitals also are worried that letting patients record visits will create a more difficult working environment for physicians, she says. “Every hospital is watching their back at all times,” says Dreher. “It’s causing really excessive demands on the time of the staff. Doctors are not real happy with all of the things they have to do already for legal reasons. If they have to walk around afraid all the time that what they are saying will be used against them, it adds more stress on doctors. It’s one reason they will retire early.”