Should Patients Secretly Record their Visits?

A recent article in JAMA discussed the ethical implications of patients and families secretly recording conversations with their doctors. The authors remind us that federal law prohibits recording a private conversation unless at least one party to the conversation consents to the recording. That party may include either the person operating the recording device or others. Several states, such as California and Florida, provide additional protections by requiring that all parties to a conversation consent to the recording. In states without the additional protections, a patient or family member could surreptitiously record a conversation with a physician without fear of legal repercussions, provided no other laws were violated.

Recording conversations can have benefits or be used for malicious intents, like spreading disparaging comments on social media or accumulating evidence for a future legal action. So, what to do?

Doctors…

1. should assume that every interaction in the examining room is being recorded, whether the patient claims they are or not.

2. should be wary of disparaging remarks or posts on social media and have a reputation management strategy.

3. should be proactive in encouraging the use of recordings by patients and their families if they think it will help patients with understanding or compliance.

4. should decide whether a patient admitting to recording a conversation would be grounds for not accepting them as a patient.

Patients…

5. should admit when they want to record examining room conversations.

6. should decide whether they want a doctor that does not allow it.

7. should understand the legal implications of slander, libel, or other laws if and when they post comments on social media sites.

8. should have a frank conversation about their educational and treatment recommendation needs or clarification, possibly using alternative materials.

Both…

9. should understand how secretly recording visits will impact the doctor-patient relationship and an aura of mistrust.

10. understand the legal and ethical implications of how this affects any expectation of privacy and subsequent effect, if any, on the doctor-patient privilege.

Modern technologies make it easy for almost anyone to snoop on anyone else. Both patients and doctors must address this issue and come to a resolution that suits the needs and wishes of both.