B. Stephens Richards, MD
Ethics & Professionalism Committee Chair
A patient secretly records the clinic conversation with his spine surgeon. Is this legal, and ethical?
Dr. Jones has seen Mr. Smith in his office twice previously for evaluation of Mr. Smith’s painful degenerative lumbar spine deformity. Dr. Jones encouraged non-operative care for several months before considering any operative intervention. Mr. Smith wasn’t pleased, having desired to have surgery scheduled at the initial encounter in order to “cure him” of all of his discomfort. Dr. Jones thought that it was wise to proceed cautiously, getting to know Mr. Smith better over time, and had told him that surgery was a possibility in the future. During this current visit’s discussion, Mr. Smith says he expects surgery to be scheduled now because he had recorded all of the previous visit’s interaction and said he was told that surgery would be scheduled. In fact, unknown to Dr. Jones, Mr. Smith said he was recording this visit on his smartphone, too. Dr. Jones was completely unaware of having been secretly recorded previously or currently, and was quite disturbed to learn this. The tone of the visit changed, and it was brought to an end without scheduling any surgery. Dr. Jones thought to himself: Is this legal in his home state of Texas? Is this ethical?
In Dr. Jones case, yes it is legal to have been recorded without his knowledge. In most states in the U.S., federal law allows recording of a private conversation if at least one party to a conversation consents. These “one-party” jurisdictions allow one party to record a conversation; so, in this instance, a patient can record a clinical encounter without the doctor’s consent. However, in some states known as “all-party” jurisdictions, secret recordings by either patients or doctors are illegal since everyone being recorded must consent to do so. These “all-party” states include California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington; and perhaps Connecticut, Michigan, Oregon, and Vermont – sources vary. In these states, the doctor must be asked by the patient to record the clinical encounter. Confusing, right?
On one hand, patients may innocently want a recording to listen to again, helping their recall of the clinic visit, and to share with family. In this instance, the patient would likely alert the physician and obtain a verbal agreement, although not required.
Conversely, the patient’s motives may be entirely different. Lawsuit cases have been settled for large sums of money based on the evidence entered by secret recordings. Knowing this, we spine surgeons would understandably be concerned about being secretly recorded.
The HIPAA Privacy Rule requires an audio/video recording made by the clinician to be restricted to the formal medical record, unless consent is obtained for it to be used elsewhere. However, patients who make secret recordings are not subject to HIPAA and, in a one-party jurisdiction, can legally post the material on any social media platform. Is this ethical? Hardly. If the clinician later finds out this has occurred, the doctor-patient relationship is understandably altered, distrust ensues, and the medical relationship may result in termination.
How can physicians protect themselves from the negative aspects of secret recordings? We’ll look at this from a positive perspective, as reported by Rodriguez et al in JAMA 2015;313:1615-1616.
“The solution lies with physicians. The first and most essential strategy entails being aware of and embracing the possibility that every conversation with a patient or his or her family may be recorded. Physicians can use this knowledge as an incentive to ensure that their words convey sensitive information efficiently, effectively, and compassionately. Professionalism requires not only honesty but also a commitment to developing effective communication skills. If the possibility of recording causes physicians to refine their skills and, in their intimate moments with families, to pause and reassess their choice of words, then physicians should consider this possibility as an opportunity to strengthen patient/physician relationships.
If a physician suspects that a conversation is being recorded, that physician could handle the situation in several different ways that could benefit all parties. Doing so would first require that the physician be aware of the possibility of secret recordings. The physician can ask the patient if he or she is recording the conversation. Then, regardless of the answer, the physician can express assent, note constructive uses of such recordings, and educate the patient about the privacy rights of other patients so as to avoid any violations. Taking such an approach would demonstrate the physician’s openness and desire to strengthen the relationship with the patient. The physician could also ignore any suspicions and provide care as he or she normally would without letting the possibility of recording affect medical decision making.
Unless federal or state laws change, physicians should be aware of the possibility that their conversations with patients may be recorded. If physicians accept this possibility, establish good relationships with their patients, provide compassionate and competent care, and communicate effectively and professionally, the motives of patients and families in recording visits will be irrelevant.”
Chair: B. Stephens Richards III Committee: Anthony M. Petrizzo; Jochen P. Son-Hing; Gary Fleischer (C); Stuart H. Hershman (C); Christopher J. Kleck (C); Robert F. Murphy (C); Mark Oppenlander (C); Paulo Jose Silva Ramos (C); Anuj Singla (C); William F. Young Jr. (C); Jacob M. Buchowski; David A. Hanscom; Steven D. Glassman, Chair Elect; Sherif M. El Ghamry; Hee-Kit Wong; S. Samuel Bederman; John P. Lubicky