Patient Whips Out Smartphone and Starts Recording: Trouble Ahead?

Smartphones are part and parcel to everyday life, including medicine. Here’s how to handle that.

Joe Lindsey, a 48-year old Colorado-based journalist, has dealt with complex hearing loss for about 15 years. which has led to countless doctor’s visits, treatments, and even surgery in hopes of finding improvement. As time went on and Lindsey’s hearing deteriorated, he began recording his appointments in order to retain important information.

Lindsey had positive intentions, but not every patient does.

With smartphones everywhere, recording medical appointments can be fraught with downsides too. While there are clear-cut reasons for recording doctor visits, patients’ goals and how they carry out the taping are key. Audio only? Or also video? With the physician’s knowledge and permission, or without?

These are the legal and ethical weeds doctors find themselves in today, so it’s important to understand all sides of the issue.

The medical world is divided on its sentiments about patients recording their visits. The American Medical Association, in fact, failed to make progress on a recent policy (resolution 007) proposal to encourage that any “audio or video recording made during a medical encounter should require both physician and patient notification and consent.” Rather than voting on the resolution, the AMA house of delegates tabled it and chose to gather more information on the issue.

In most cases, patients are recording their visits in good faith, says Jeffrey Segal, MD, JD, the CEO and founder of Medical Justice, a risk mitigation and reputation management firm for healthcare clinicians. “When it comes to ‘Team, let’s record this,’ I’m a fan,” he says. “The most common reason patients record visits is that there’s a lot of information transferred from the doctor to the patient, and there’s just not enough time to absorb it all.”

While the option is there for patients to take notes, in the give-and-take nature of conversation, this can get difficult. “If they record the visit, they can then digest it all down the road,” says Segal. “A compliant patient is one who understands what’s expected. That’s the charitable explanation for recording, and I support it.”

It’s that question of good intent, however, that concerns some physicians in today’s highly litigious society. “The worry is that there’s a small subset of patients with an ulterior motive,” says Segal.

“Some patients do record in case of an event down the road,” he adds. “They want the recording to potentially talk to a lawyer, or to file a board complaint.”

Laws in the United States surrounding recordings are confusing, with variations from state to state. Currently, 39 US states allow for one-party consent — meaning a patient can record a visit without consenting with the physician.

Monica Verduzco-Gutierrez, MD, professor & chair of rehabilitation medicine at University of Texas Health, San Antonio, resides in Texas, which is one of the 39 one-consent states. “Physicians must be aware of this fact and consider how it might be used against them,” she says. “A good practice is to set expectations with the patient from the start. Also, know your hospital’s policy — some may have boundaries surrounding recordings.”

The first step is to know what type of state you practice in. Regardless of whether you are in a one- or two-party consent state — but especially a one-party state — it’s a smart move to add a sign at your office saying that you support the recording of visits, provided the patient is open and transparent about it. “Let the patient know that if they plan to record, they should ask your permission,” says Segal. “Let them know it’s not appropriate if they haven’t received your permission.” 

There are, of course, the occasional horror stories involving surreptitious recordings. “I remember a case where a patient left a phone actively recording in his bag of clothing, which went into the OR with him,” he says. “The background conversation was not flattering to the patient, who happened to be an employee of the hospital. When he came to and listened to the recording, he sued, winning his case.”

The Age of Video and Telehealth

What about the rare situation when a patient pulls out a phone and begins to videotape a conversation? It can be a big slippery slope. “Patients can abuse a video recording with editing, and the recording becomes one-dimensional, which is unfair to the physician,” adds Segal.

Patients sometimes have other motives as well. “I’m aware of occasions where a doctor/patient visit got heated and the patient took out the phone to video record, sharing it to social media,” says Segal. “Once someone uses a phone to take video, just stop the conversation. Tell the patient, ‘We’re having a disagreement,’ and that it’s time to put an end to it.”

He adds that from the physician side, a video can be a protagonist in a conversation. “Frankly, a camera on your face changes the nature of things,” Segal says. “It’s much easier to have the phone sitting in a corner, quietly recording.”

Other scenarios might involve a patient’s family member accompanying the patient and bringing out their phone to record. “Doctors should consider how this might be used against them — it can blow up,” says Verduzco-Gutierrez. “Draw boundaries on this behavior, using your hospital’s policy if it has one.”

In today’s pandemic landscape, this is particularly important, she adds. “There’s generally more mistrust in the medical system right now,” says Verduzco-Gutierrez. “People are getting misinformation from sources that aren’t credible, and then want to record their visits because they aren’t receiving the treatment they want, for instance.”

COVID has also added the tricky element of telehealth, which has exploded since 2020. “You don’t know what a patient is doing on the other side of the screen,” Verduzco-Gutierrez explains. “Face-to-face, you might see them with their phones out, but anything goes with telehealth. You have to be open and communicative with your patients about your policies from the start to avoid any negative connotations.”

How Taping Can Help Patients

Lindsey, the Colorado journalist, is far from alone in his desire to use visit recordings in order to retain valuable information — and with good reason. According to the Dartmouth Institute for Health Policy and Clinical Practice’s Open Recordings Project, at least 1 in 10 patients records their doctor’s visits.

“I realized I was missing things and in a medical setting, that matters,” Lindsey says. “Last year, once COVID hit and we all began wearing masks, I lost my ability to read lips, one of my coping mechanisms. It became even more important that I had a backup recording to ensure I understood everything.”

Even if a patient doesn’t have hearing loss like Lindsey, having an audio record of a visit can be useful. According to a 2018 study on patient recall of key information 1 week out from their visits, 49% of decisions and recommendations were recalled accurately without prompting; 36% recalled with a prompt; and 15% recalled erroneously or not at all.

This squares with the personal experiences of Verduzco-Gutierrez. “I even see this with my mom, who doesn’t remember many details of her doctor’s visits when I ask her,” she says. “This can definitely impact treatment.”

For Better or Worse

Verduzco-Gutierrez says that often it comes down to how a patient learns best. “I teach my residents to keep this in mind and to ask the patient in advance what works best for them,” she says. “If a patient is a visual learner, they might want to take notes or have access to the appointment notes after the visit. If they will learn and retain the information best with an audio recording, then offer that option.”

Lindsey makes it a habit to inform his physicians that he will be making an audio recording of his visits. “I always let them know that I’m recording for accuracy and not to catch them in some sort of falsehood,” he says. “I can get the doctor’s notes, but those are often short and to the point; I can get more information by going back over the recording.”

To date, Lindsey hasn’t experienced any pushback from his physicians. “No one has balked at the idea or acted surprised that I want to do it,” he explains. “I think most doctors appreciate that we have a tool we can make use of for better care.”

In past Medscape coverage of the topic, some healthcare providers weighed in with support for recordings, usually citing personal reasons. “I am so very grateful for the physicians that allowed me to record the medical appointments that I attended with my parents,” said one. “As their adult daughter, I was painfully aware that my parents struggled to process and understand all of the new information coming their way.”

Another expressed support as well, stating that as a patient, he prefers recordings to notes, because the latter “bears little resemblance to the content of the meeting and discussion with the physician. If the patient straightforwardly asks for permission to record, then why not honor the good intent expressed thereby?” 

More often than not, patients have good intentions when they decide to hit the  record button in a medical visit. A little preparation goes a long way, however, says Segal: “Assume you’re being recorded, and act accordingly.”

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