Clarity Needed on Recording Medical Encounters, Experts Say

Clear guidelines are needed to govern the recording of medical encounters, 3 health policy experts asserted in a recent issue of JAMA. Such guidelines should clarify the legality and use of recordings, and also aim to exploit the potential utility of recordings, they argued. 

“Developing clear policies that facilitate the positive use of digital recordings would be a step forward,” wrote Glyn Elwyn, MD, PhD, professor and senior scientist at the Dartmouth Institute for Health Policy and Clinical Practice in Lebanon, New Hampshire, and 2 colleagues from the same institution. 

Being recorded, either with permission or covertly, makes some clinicians anxious, the authors said, but providers should rest assured there are both significant limitations to the liability potential of these recordings and, in contrast, benefits to both patients and clinicians. 

In an analysis of 33 studies of information derived from audio-recorded clinic visits, most patients said recordings helped them better understand and recall medical information. 

Moreover, recordings can, in fact, reduce liability concerns, the authors explained. 

“For example, at the Barrow Neurological Institute, in Phoenix, Arizona, where patients are routinely offered video recordings of their visits, clinicians who participate in these recordings receive a 10% reduction in the cost of their medical defense and $1 million extra liability coverage,” Dr Elwyn and colleagues noted. 

Nevertheless, anxiety and confusion regarding recordings of medical encounters persist, the authors suggested. 

“The law is inconsistent: recording is allowed in certain situations and is illegal in others,” they said. 

To clarify this, they divided states into 2 groups in terms of how they govern recordings of private conversations: “single-party” jurisdictions require only 1 party, including the person making the recording, to consent to the recording, whereas “all-party” jurisdictions, namely California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and Washington, require that all participants in an encounter consent to a recording. 

“If a clinician in a single-party jurisdiction is asked by a patient to allow a recording, the clinician may ask the patient not to proceed, but the patient has the right to record the clinical encounter,” the authors clarified, noting that the clinician can then choose to terminate the visit if they wish. 

In a state with single-party rules, patients are free to share the unadulterated recording with a family member or caregiver as long as they do not do so on social media, and so long as the recording is not used to the detriment of the clinician or their reputation. 

In cases where 1 party violates these rules and records illegally, the other party can seek damages, and individuals who disseminate illegal recordings can be prosecuted. Illegally made recordings are also inadmissible as evidence in court, Dr Elwyn and coauthors noted. 

The current situation, with patients concerned about asking providers for permission to record and clinicians anxious about the presence of covertly made recordings, “hinder[s] a relationship of trust and open communication,” Dr Elwyn and coauthors wrote.

“Clinicians, patient advocacy groups, and policy makers should work together to develop guidelines and regulatory guidance on patient recording…[that] embrace the value of recording clinical encounters,” they urged.

References

Elwyn G, Barr JP, Castaldo M. Can patients make recordings of medical encounters? What does the law say? JAMA. 2017;318:513-514. 

This article originally appeared on Medical Bag