How to handle patients that want to record medical conversations

I was recently at my physician’s office and observed a patient recording himself and a family member in the waiting room. He continued recording as he walked down the practice hallway and entered the examination room. It was clear that the patient had not only recorded himself, but also had captured other patients in the room and patient names being called out. He even potentially captured conversation between patients and health care providers.

Yet, no one from the practice told him to stop filming, questioned his activities, or otherwise reacted. Has this happened in your practice?
If it did, how would you react?

The above scenario is hardly surprising in the age of social media, although it was a first for me. However, while most healthcare providers and medical practices are aware of the significant limitations HIPAA places on their activities, it is less clear how to react when it’s the patient who wants to record the physician and could potentially expose protected health information of other patients.

Practices should address the issue of patients recording themselves and others by planning ahead. A practice should develop a policy for handling such activity and prepare the necessary paperwork for patients to acknowledge the policy put in place. If a practice chooses to allow such recordings, then the policy must set the appropriate parameters for recording at the practice, such as where filming can occur, whether permission must be requested, and other necessary requirements.

Sometimes patients ask their physicians directly to record an encounter for arguably legitimate reasons, such as to help remember medical information or instructions or share the details of the visit with caretakers or loved ones. A practice should have a separate approach for physician recordings and should tailor it to physician preferences.

What happens if a patient does not ask permission and records the physician without his or her knowledge? While this may violate the practice’s policies, such activity can also expose the practice to liability and impact its reputation. What information was in plain sight and recorded that presented a HIPAA issue? Could the practice be liable for anything else related to the recording? How did its staff behave? Practices should be aware at all times that recordings may take place without their knowledge, so appropriate HIPAA precautions and patient interactions should be the norm through training and preparation.

Finally, practices should be aware that patients have the right in most states to record interactions with third parties where the law only requires one party to consent to the recording. This means a patient does not need to inform the physician that he or she is recording at all. Other states, such as Illinois, require that both parties are aware of the recording. In these states, this means that a patient who records a physician or staff interaction without permission has actually violated the law.

I recommend exploring these issues with legal counsel in order to assure that your practice is properly protected, and that any plan is tailored specifically to your practice’s needs. For example, the approach may be different for an internal medicine practice compared to one that focuses on cancer or communicable diseases. Knowledgeable legal counsel can assist in understanding your practice’s legal risks and potential vulnerabilities.

Ericka L. Adler has practiced in the area of regulatory and transactional healthcare law for more than 20 years. Send your legal questions to medec@mjhlifesciences.com.