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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 Mr. Lindsey’s hearing deteriorated, he began recording his appointments in order to retain important information.

Mr. 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 Dr. 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 Dr. 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 U.S. states allow for one-party consent — meaning a patient can record a visit without consenting with the physician.

Monica Verduzco-Gutierrez, MD, professor and 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 Dr. 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.”

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