Cellphones, and particularly smartphones, are everywhere these days. It is estimated that 77 percent of the U.S. population has or has access to a smartphone. Smartphones feature recording devices that can record both audio and video, and can do so clandestinely. Physicians and other health care professionals are now realizing that some patients are recording their office visits, often without the consent of the person being recorded. In one survey of the general public done in the United Kingdom, it was found that 15 percent of respondents admitted that they had secretly recorded a clinic visit, and 11 percent knew of someone who had done so. Many times the motivation to record the visit is reasonable: patients want a recording to listen to again, improve their recall and understanding of medical information, and share the information with family members.
In the few healthcare organizations in the U.S. that offer patients recordings of office visits, both the physicians and patients report benefits. In addition, liability (malpractice) insurers maintain that the presence of a recording can protect clinicians. At the Barrow Neurological Institute in Phoenix, Arizona, where patients are routinely offered video recordings of their visits, clinicians who participate in these recordings are offered a 10 percent reduction in insurance premiums and an extra $1 million in liability coverage. Many clinicians and clinics, however, have concerns about the ownership of the recordings and the potential that they will be used as a basis for legal claims or complaints. There are also concerns about the legality of secret recordings, but many clinicians and patients are uncertain as to what the laws actually are.
Actually, wiretapping and eavesdropping statutes vary from state to state. These laws provide a legal framework guiding recording practices and guard against nonconsensual recordings in situations where individuals have a reasonable expectation that the conversation is private. In so-called all-party jurisdictions, covert recording (recording without the express permission of all parties) is illegal. In contrast, in single-party jurisdictions, the consent of just one party is sufficient, including the person making the recording, so covert recording is actually legal in those areas. At present, 39 states and the District of Columbia conform to the single-party consent rule. The 11 states that conform to the all-party rules are California, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Oregon, Pennsylvania, and Washington. The consequences for violating wiretapping laws can be severe as it is typically a felony, and the recorded party can sue for damages, harm, attorney’s fees, and other costs. Plus illegal recordings are not admissible in court.
In single-party states, if the clinician is asked by the patient to record the visit, the recording may still be done against the clinician’s consent, although the clinician has the right to conclude the visit. In all-party states, if the clinician is recorded without giving consent, that illegal recording may be reported to the authorities. As New York is a single-party state, it is still a good idea, in my opinion, to ask the clinician for consent to record. Secretly recording a visit may lead to erosion of the doctor-patient relationship and jeopardize the trust that that relationship is built upon.
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