According to the Pew Research Center, in 2016, a whopping 77% of Americans owned a smartphone.1 This number is more than double what it was when the Pew Research Center first started tracking smartphone ownership in 2011. Back then, 35% of Americans owned smartphones. Furthermore, in 2016, there was a sharp rise in ownership among both older people and lower-income people. Smartphones are everywhere, and their coverage is growing.
In addition to making phone calls, smartphones can do lots of other things. They can take photos, shoot video, play music, and access the Internet. They can also be used to record physician appointments without the knowledge of the physician.
Secretly recording clinical encounters may sound sneaky, but in 39 of 50 states, it’s legal. Furthermore, research shows that recorded clinical encounters can be empowering and educational for patients. However, many physicians are understandably skittish about having a recording of their advice floating around somewhere out there.
How Common Is It?
There isn’t a lot of data concerning how prevalent secret recording is; the issue has only recently risen to some prominence.
In one small UK study, Elwyn and co-authors found that 15% of respondents indicated that they had recorded a clinician encounter without consent, and 35% of participants said that they had considered doing it.2 Moreover, in the same survey, 11% of clinicians responded that they were aware of being secretly recorded by a patient in the past. According to the authors of the study, “69% of respondents indicated their desire to record clinical encounters, split equally between wanting to do so covertly or with permission.”
How Legal Is It?
Each state has its own wiretapping and eavesdropping statutes. The statutes vary from state to state based on whether one or two parties must consent to recording a conversation, thus referred to as single-party jurisdictions or all-party jurisdictions, respectively. In total, 39 of 50 states as well as the District of Columbia are single-party jurisdictions—where only one party needs to consent. In other words, in these jurisdictions, if somebody wants to record another person—including a clinical encounter—it’s legal.
There are 11 all-party-jurisdiction states in which both the clinician and patient must both consent to recording a conversation: California, California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and Washington. In these states, it’s a felony for a patient to record a physician without permission.
In single-party jurisdictions—or most of the United States—if a patient asks to record a clinical encounter and the clinician refuses, the patient can proceed to record the encounter anyway. The clinician must then choose to continue or terminate the encounter.
In all-party jurisdictions, the clinician must be asked by the patient to record the clinical encounter. Any illegal recording can then be reported by the clinician to the authorities. Possible repercussions include compensation for harm, attorney’s fees, and other costs, with disseminating the recording via the Internet being considered an additional violation.
What About HIPAA?
As with any formal medical record, the HIPAA Privacy Rule covers any audio or video recordings made by the healthcare practitioner, health plan, or health clearinghouse. However, HIPAA doesn’t extend to recordings made by the patient. In other words, in single-party jurisdictions, the patient can distribute the recording as pleased.
The Benefit of Recording
Research shows that patients put a high value on audio recordings made of clinical encounters. For instance, in a 2014 review, Tsulukidze and colleagues found that, on average, 72% of patients listened to recorded consultations.3 Furthermore, 60% of patients shared these audio recordings with loved ones and others. For the most part, these recordings have been shown to improve patient recall and understanding of their conditions.
Other research findings suggest that patients and their family members often have difficulty comprehending what’s presented during a physician’s appointment because they are overcome with grief and complex emotions. Recordings can be played back later when the patient and family members are better prepared to understand the message, guidance, and advice. Oncologists have known about this phenomenon for some time, which is why recordings of encounters are commonly offered to patients who are being treated for cancer.
In the previously mentioned UK survey, Elwyn and co-authors found that the prime motivation to record clinician encounters is to enhance the healthcare experience and to share the experience with others.2 However, some patients reported wanting to use the recordings as evidence of poor care.
How Do Physicians Feel?
Especially at work, few people like to be recorded without their permission; physicians are no different.
In a Viewpoint from JAMA, Rodriguez and Morrow write the following:
“Not all possible uses of these recorded conversations are beneficial to patients and physicians. Patient or family members who disagree with the advice of their physicians or who are upset with their physicians for whatever reason can easily take comments from these recordings out of context and, with a few keystrokes, disseminate them via social media. Patients can conceivably record conversations with the specific intent of establishing the grounds for a lawsuit or gathering material with which to manipulate a physician.”4
Moreover, if a physician suspects or later finds out that an encounter has been recorded without consent, the doctor-patient relationship can suffer. First, these physicians may believe that they were denied the right to consent to recording. Second, physicians may feel vulnerable to scrutiny and distrustful of the patient.
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