We live in a world where most of us use technology to document, record and save for posterity multiple aspects of our lives. Millions of videos of concerts, graduations, birthday parties and other social events are broadcast on social media every day. And the practice of video-taping interactions between the public and public servants, including law enforcement and politicians, has become increasingly commonplace. So it’s not surprising that a growing number of patients are recording their interactions with their physicians, sometimes surreptitiously, or that a number of physicians, for a variety of reasons, are following suit.
But is the practice legal? The answer depends on where your practice is located and where the recording takes place.
The legality or illegality of recording a conversation falls under the umbrella of federal and state wiretapping laws. According to the Digital Media Law Project, federal law permits the recording of in-person or telephone conversations with the consent of at least one of the parties involved (one-party consent.) Most state laws follow suit. Only 11 states — California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington — have adopted “two-party consent” statutes that require all parties involved in a conversation to give consent before recording can take place.
Thus, in many cases, patients have the legal right to record their interactions with their physicians, whether the physician consents or not. Similarly, physicians can legally record patient interactions without the patient’s knowledge or consent.
Although most of us are understandably unsettled by the idea that someone can record our interactions with them without our consent, having a recording of conversations with their physician may actually benefit patients significantly. Generally, people remember about 20 percent of what they hear, and that percentage is typically far lower when the conversation is about their health. In fact, multiple studies show that patients’ understanding of critical information often differs vastly from what their physicians believe they have conveyed.
In one study, for example, University of Colorado researchers asked physicians to rate the probability that patients with advanced heart disease would require a heart transplant or LVAD or die within the following year. Then they asked the patients the same thing. Astonishingly, the physicians rated 69 percent of the patients as high risk for transplant, LVAD or death, while only 14 percent of the patients thought the same way.
Similarly, a study reported in JAMA Oncology last year showed that physicians’ and patients’ perceptions of conversations about prognosis often differed dramatically, with over two-thirds of patients holding a far more optimistic view than their physicians believed they had conveyed. That study involved over 200 patients and 38 oncologists from University of California Davis Comprehensive Cancer Center in Sacramento, California and the University of Rochester Medical Center in New York.
Given such discordant results in two very high-risk patient populations, it would seem that allowing or even encouraging patients to record conversations might enhance critical communication about prognosis, quality of life and goals of care.
Protection In Malpractice Suits
For many physicians and clinic administrators, recordings of patient interactions may seem like powerful ammunition should the patient decide to file a malpractice claim. But according to investigators at The Dartmouth Institute for Health Policy and Clinical Practice, the opposite is often true. That is, malpractice insurers often welcome recordings as evidence that physicians provided patients with accurate information or obtained appropriate consent. In fact, the Barrow Neurological Institute in Phoenix Arizona, one of the few healthcare providers in the country that has a policy of recording office visits if the patient and physician agree, offers a 10 percent reduction in medical defense costs and an additional $1 million in malpractice coverage to physicians who participate.
The Era of Information Sharing
Obviously, physicians who live in one-party consent states have few available strategies to prevent a patient from recording an interaction if they choose to do so. Some healthcare organizations have taken to banning smartphones in exam rooms to prevent unwanted recording of sensitive information. However, this may be counterproductive, in that it can lead patients to believe that the organization has something to hide. A far better tactic, according to Professor Glyn Elwyn, M.D. of the Dartmouth Institute, is to work towards developing formal policies that encourage greater transparency in patient care.
“Health care overall is moving toward greater transparency and patient recordings are going to become more common,” Elwyn said. “That means there would be tremendous benefit to patient advocacy groups, health care organizations, providers and policymakers working together to develop clear guidelines and policies around the responsible, positive use of open recordings.”
In today’s digital age, healthcare professionals are understandably concerned about the impact of technology and social media on their ability to manage risk. And that’s just one reason why it’s crucial to have a knowledgeable, experienced insurance professional working with you to keep your assets safe. Here at the Carmoon Group, we have over 20 years experience in the insurance industry and a long history of providing affordable, comprehensive coverage to businesses of all kinds. So why not give us a call today to schedule an appointment for your insurance review? Or if you prefer, reach out to us online and we’ll get back to you at a convenient time.