Researchers writing in a JAMA viewpoint article argue that 'developing clear policies that facilitate the positive use of digital recordings would be a step forward.'
Patient recordings—including secret ones—are relatively common during clinical visits. In addition, patients can benefit from recording their office visits, research shows.
But the laws governing recordings can be confusing, and physicians often feel uncomfortable with the idea of being recorded. That’s why investigators at the Dartmouth Institute for Health Policy and Clinical Practice’s Open Recordings Project took on this topic in a recent Viewpoint article in JAMA.
“In the U.S., the situation is complex,” one of the paper’s authors, Dartmouth Institute Professor Glyn Elwyn, MD, said in a statement.
“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.”
Because recording is allowed in certain situations, illegal in others, and laws vary by state, the authors say that “Developing clear policies that facilitate the positive use of digital recordings would be a step forward.”
That’s especially true since every smartphone can record conversations.
“As health care continues to make significant strides toward transparency, the next step is to embrace the value of recording clinical encounters,” the authors write.
They point to research suggesting that recordings can be beneficial to patients. They also note that having a recording of a patient encounter might even protect physicians.
Despite laws that sometimes prohibit it, people frequently record encounters like traffic stops and doctor appointments. The researchers point to a survey in the United Kingdom showing that 15% of respondents said that they had secretly recorded a clinic visit, and 11% were aware of someone covertly recording a clinic visit.
Patients want to better understand and remember their medical information and share it with family members, other research shows.
Yet statutes surrounding recordings in the United States are often varying and confusing. For instance, in 11 states, everyone involved in a conversation must consent to being recorded in order for it to be legal. In others, the consent of any one party—including the person doing the recording—is all that’s needed for a recording to be legal.
Whether it’s legal to share the recording also varies by state.
HIPAA standards are equally confusing and “based on ownership of the recording,” the authors write. The recording is subject to HIPAA standards if it is “created or received” by a “covered entity,” but a patient-initiated recording that is retained by the patient (and not given to the clinician or health plan) is not subject to HIPAA.
Since being secretive about recordings can erode trust, and recordings may help patients, the authors call for institutions to embrace recordings and develop clear policies for doing so. They say that a handful of United States healthcare organizations have already done it and report benefits for both patients and clinicians.
For example, the Barrow Neurological Institute, in Phoenix, Arizona, routinely offers patients video recordings of their visits, and “clinicians who participate in these recordings receive a 10% reduction in the cost of their medical defense and $1 million extra liability coverage (P.J.B., unpublished data, 2017),” the authors write.
Alexandra Wilson Pecci is an editor for HealthLeaders.
