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July 20, 2017

Nearly 1 in 10 patients records their doctors' visits. Is that even legal?

Daily Briefing

    People use smartphones to capture and record many aspects of their lives, and while research suggests many press "record" during their doctor visits, the practice prompts both legal questions and concerns for providers, researchers from the Dartmouth Institute for Health Policy and Clinical Practice write in a JAMA viewpoint

    5 myths physicians believe about patient experience

    Is it legal?

    The researchers in a release note that around 1 in 10 U.S. patients record discussions at their doctor's appointments—and some do not first obtain their provider's permission. As the researchers write, in some states, patients aren't legally required to seek that permission.

    They note that just 11 states—California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and Washington—require all parties involved in a recording to give consent. The remaining 39 and the District of Columbia have "one-party" laws, under which only one party involved in the recording—in this case, the patient—has to give consent.

    Glyn Elwyn, a Dartmouth Institute professor and one of the viewpoint authors, said "the situation is complex" in the United States, adding, "Wiretapping or eavesdropping statutes provide the primary legal framework guiding recording practices and protecting privacy, so a patient who would like to record a doctor's visit should familiarize themselves with laws in their state."

    How patients use recordings

    According to the researchers, most patients have understandable reasons for recording their doctors during a visit: "Patients want a recording to listen to again, improve their recall and understanding of medical information, and share the information with family member," they write.

    They cite a research review of 33 studies that found 72 percent of patients who recorded their visits listened to their recordings, and 68 percent shared them with a caregiver. In fact, patients who recorded their doctors' visits generally said they had a greater understanding of their medical condition and were better able to recall medical information.

    What this means for providers

    The researchers write, "Many clinicians and clinics have concerns about the ownership of recordings and the potential for these to be used as a basis for legal claims or complaints." They add, however, that "liability insurers maintain that the presence of a recording can protect clinicians," and recordings that are taken and retained by the patient are not subject to HIPAA requirements.

    The authors recommend that providers in states with single-party laws be aware that patients can unilaterally choose to record their visit. In those states, if patients ask permission to record their interactions, providers "may ask the patient not to proceed," but they cannot stop the patient from recording unless they "terminate the visit." Providers working in states with all-party laws, on the other hand, may "refuse to grant patients permission to make recordings" and can report instances of illegal recording to the authorities.

    The need for guidelines

    Elwyn said patient recordings are likely to become more common over time. "That means there would be tremendous benefit to patient advocacy groups, health care organizations, providers, and policymakers working together to develop clear guidelines and policies around the responsible, positive use of open recordings," she said. 

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    In an editorial in STAT News, Elwyn and Tim Lahey—a physician, researcher, ethicist, and associate professor at the Dartmouth Institute who was not involved in the JAMA viewpoint—shared some of their recommendations for recording guidelines.

    They write that guidelines should lay out when recording is OK and when it isn't. For instance, they write recordings should be forbidden during physical examinations or in any instance in which the privacy of other patients could be in jeopardy.

    While Elwyn and Lahey acknowledge that allowing recordings carry risks for providers, they write, "Fear of risk ... shouldn't distract us from realizing the very real benefits that can come from allowing or even offering patient recordings of clinical visits any more than fear of side effects should stop us from prescribing effective medications when they are needed." They add, "In the rare event litigation arises, an accurate record of good medical care can serve doctors as well as patients, and patients say they trust providers who are transparent enough in their practice to encourage recordings" (Dallas, CBS News, 7/10; Finnegan, FierceHealthcare, 7/11; Lahey/Elwyn, STAT News, 7/10).

    5 myths physicians believe about patient experience

    5 myths physicians believe about patient experience

    Excellent patient experience is a critical piece of modern medicine, reflected clearly in outcomes. And more than amenities, clean rooms, or quiet during night, the factors that most inflect patient experience all relate to communication and coordination among the care team—factors that physicians are in a unique position to influence.

    Clinician-patient communication, leadership of the care team, and support and empathy for the patient across the unit are the most important factors for success, and they're all driven by the physician as the "Influencer in Chief."

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