More patients record doctor visits with or without permission

Doctor with patient
Patients are recording conversations with their doctors—sometimes secretly.

Just as people record more and more of life’s events, many now record conversations at doctor’s visits. For physicians, there’s a good chance at least one of your last 10 patients recorded their visit, with or without permission, according to research from the Dartmouth Institute for Health Policy and Clinical Practice.

That has some doctors and healthcare clinics worried about the ownership of those recordings and the potential for patients to use them in complaints and lawsuits, said the researchers who wrote about their findings in a JAMA viewpoint that looked at what the law allows. Investigators on the institute’s open recordings project found the laws are often confusing.

"In the U.S., the situation is complex," said Glyn Elwyn, M.D., Dartmouth Institute professor, in an announcement. "Wiretapping or eavesdropping statutes provide the primary legal framework guiding recording practices and protecting privacy, so a patient who would like to record a doctor's visit should familiarize themselves with laws in their state."

State laws differ on whether all parties must consent to the recording. In "all-party" jurisdictions, covert recordings by either patients or doctors are illegal since everyone being recorded must consent. In "one-party" jurisdictions, one party can decide to record a conversation, so a patient can record a clinical encounter without the doctor or other provider’s consent. The researchers said currently 39 of the 50 states and the District of Columbia use the one-party consent rule, while 11 are all-party states. The 11 all-party jurisdictions are California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania and Washington.

The researchers said patients’ motivation for wanting to record a visit are often reasonable. Patients want a recording to listen to again, improve their recall and understanding of medical information and to share the information with family members. However, covert recordings can damage the patient-physician relationship by undermining trust between the two.

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With healthcare moving toward greater transparency, the researchers say doctors and healthcare organizations must embrace the value of recording and suggest the need for clear guidelines and policies as a step forward. However, as Elwyn writes in an opinion piece on STAT with fellow physician Tim Lahey, M.D., their own hospital, motivated by a concern for patient privacy, recently posted a sign saying, “Please respect our patients’ privacy—Recording is not permitted.”