Clear Guidelines Needed for Recordings of Medical Encounters
Recordings that are used to the detriment or harassment of a clinician may not shared, and the sharing of such material could lead to legal action.
A new article published in the Journal of the American Medical Association (JAMA) concludes that physicians should embrace the trend of patients recording clinical encounters.
On the face of it, covertly recording a physician may appear to be illegal but the converse is true for most states. The practice falls under the legal framework of wiretapping or eavesdropping statutes, which vary at state level. Thirty-nine of the 50 states and the District of Columbia have the ‘single-party consent' rule, meaning that if only one party – the physician or patient – wish to covertly record an encounter then they are legally entitled to do so. On the flipside, the ‘all-party consent' – which stipulates that both parties must consent – applies to the following states: California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and Washington.
Health Insurance Probability and Accountability Act (HIPAA) standards only apply if the recording is ‘created or received' by a ‘covered entity'. That includes health plans, healthcare practitioners, and healthcare clearing houses. If the patient-initiated recording is kept by the patient, HIPAA standards do not apply.
Tsulukidze et al (2014) analyzed 33 studies which assessed outcomes of patients who visited clinics that provided recordings of their encounters. They found that an average of 72% of patients listened back to their recordings and they reported enhanced information recall and greater understanding of the information.
The JAMA review indicates that most patient recordings are shared with family members or caregivers and are not disseminated on social media. In all-party consent states the permission of those recorded is required before a recording is shared. Recordings that are used to the detriment or harassment of a clinician may not shared, and the sharing of such material could lead to legal action.
The authors stated that all parties (clinicians, patient advocacy groups, policymakers), should work together to develop guidelines and regulatory guidance around patient recording as a step toward greater transparency. “Developing clear policies that facilitate the positive use of digital recordings would be a step forward,” they concluded.
Elwyn G, Barr PJ, Castaldo M. Can patients make recordings of medical encounters? what does the law say? [published online July 10, 2017.] JAMA. doi:10.1001/jama.2017.7511