What to Understand About Recorded Patient Conversations
By Thea Pitzen
Research from the Dartmouth Institute for Health Policy and Clinical Practice indicates that at least 10–15% of patients record conversations at medical appointments, often secretly. Given that the research is several years old (and some individuals may not admit to making such recordings), the percentage is likely higher. The first question that many providers have upon learning those statistics—or discovering that they have been recorded without their knowledge or consent—is understandably, can they do that? In Virginia, the short answer is yes.
Virginia, along with most other states, is a “one-party consent” state, meaning it is generally legal to record a conversation as long as at least one party consents. This means, for example, that in a conversation between a provider and a patient, as long as the patient consents, they can legally record the conversation. Most often, a patient or an accompanying family member or friend will use a cell phone recording from their pocket, a bag, coat, or other personal item in the room.
So, what, if anything, can or should healthcare providers do about the potential (or, perhaps more accurately, the likelihood) that they will be recorded in a patient encounter? There are many legitimate reasons patients and caregivers may wish to record conversations with healthcare providers. For example, the recording may be used to remember important information or follow-up instructions or to pass such information along to other caregivers. But there are also circumstances where these recordings form the basis for lawsuits or administrative complaints against providers and practices (some may recall a highly publicized 2015 case in northern Virginia in which a jury awarded a patient $500,000 after he was mocked by an anesthesiologist while sedated for a colonoscopy).
Some healthcare systems, hospitals, and medical practices have policies stating that patients and visitors cannot record their interactions without the provider’s explicit consent (or, in some cases, at all). Patients should be made aware of any such policies—preferably more than once. Signs in the lobby or waiting areas should indicate that such recording is prohibited. Depending on the care setting, posting similar signage in exam or patient rooms may also be appropriate. Practices and providers should also consider incorporating this into the written terms that patients sign at the outset of care. Regardless of whether the practice or facility has a policy, if a provider becomes aware that a patient is recording their conversation and the provider does not consent, they should clearly state that they do not consent to being recorded and ask that the recording stop immediately.
In today’s technological environment, the safest course of action for healthcare providers is to generally assume that you are being recorded. This underscores the need for clear and professional communication with patients and caregivers and thorough and accurate documentation regarding discussions with patients. To avoid the potential for an unpleasant surprise, don’t say anything to a patient that you would not want to hear played back to a colleague, in a courtroom, or before a licensing board. When documenting your discussions with a patient, keep in mind that the patient may have a recording of exactly what was said. It is therefore important to ensure that everything in the record is accurate (including that any instructions within the record were clearly communicated to the patient).
Thea Pitzen is an attorney with Goodman Allen Donnelly. She focuses her practice on advising and defending hospitals, physicians, and other health care providers in litigation and professional regulatory board investigations. goodmanallen.com
