Michelle Rodriguez, JD;
Jason Morrow, MD, PhD; Ali Seifi, MD
JAMA.
Published online March 12, 2015
With recent advances in technology, smartphones can become
recording devices with the touch of a button. This technological capability
gives patients and their families the ability to easily and surreptitiously
record conversations with physicians. The frequency of such recordings or
whether they even occur is unknown. The ubiquity of smartphones, however,
suggests the potential for secret recordings to occur. As of January 2014, 58%
of Americans owned a smartphone, including 83% of young adults.1 Although
recording conversations with physicians may provide some benefit for patients
and their families, secret recordings can undermine patient-physician
relationships and ultimately affect the provision of health care.
Federal law prohibits recording a private conversation
unless at least one party to the conversation consents to the recording.2 That
party may include either the person operating the recording device or others.
Several states, such as California and Florida, provide additional protections
by requiring that all parties to a conversation consent to the recording. In
states without the additional protections, a patient or family member could
surreptitiously record a conversation with a physician without fear of legal
repercussions, provided no other laws were violated.
Although patients and their physicians may explicitly agree
to record a family meeting, anecdotal experience and isolated reports suggest
that some patients have done so covertly. Physician reactions to this have been
mixed. Some physicians focus on the benefits of recording conversations for the
patients and their families.3 Others
focus on feeling vulnerable to the manipulations of those who may harbor
negative intentions.4,5 So
do the benefits of recordings outweigh the potential harms?
Recording conversations could be beneficial for patients.
Patients do not always understand or recall all the information provided during
visits to physicians.6 Recordings
could potentially improve accuracy, adherence, and personal engagement by
providing opportunities to review conversations at other times, from the
comfort of home, and in conjunction with other family members or caregivers.
In intensive care units, where many patients are
unconscious, have delirium, or otherwise are unable to make their own health
care decisions, such recordings could prove helpful to families, particularly
when facing serious end-of-life decisions. Families often struggle with grief
and complex emotions that impair their ability to absorb all the information
provided at the time of the actual meeting with the physician.7Recordings
of the visit can give families the opportunity to review what the physician
said at a time when they are better able to understand and process complex or
stressful information.
Not all possible uses of these recorded conversations are
beneficial to patients and physicians. Patients or family members who disagree
with the advice of their physicians or who are upset with their physicians for
whatever reason can easily take comments from these recordings out of context
and, with a few keystrokes, disseminate them via social media. Patients can
conceivably record conversations with the specific intent of establishing the
grounds for a lawsuit or gathering material with which to manipulate a
physician.8
When a conversation is recorded without a physician’s
consent, the nature of the relationship between patient and physician can
change. Physicians who suspect secret recordings or learn of them after the
fact may believe that their perceived right to consent to recordings has been
violated. They may feel vulnerable because of the one-sided protections
conferred by law to patient-physician communications. This can threaten the
integrity of an existing patient-physician relationship and predispose a physician
to assume a posture of distrust toward future patients.
Patients, on the other hand, may feel reassured by laws such
as HIPAA and related privacy laws proscribing unauthorized scrutiny by spouses,
employers, courts, or others. Legal protections and codes of professional
ethics protect patients and encourage open and honest communication with
physicians for the purposes of ensuring safe and appropriate health care.9
Physicians have no such legal protections in their
interactions with patients. Patients are not limited in conveying the content
of their conversations with physicians to others. However, until recently, it
was technologically impossible for most patients to surreptitiously record
conversations with their physicians. Thus, a physician’s exact words during a
conversation could not be recalled, scrutinized, and dissected for whatever
purpose at a later time. This is no longer the case.
Moreover, the potentially surreptitious nature of recordings
engenders a culture of mistrust and suspicion. Physicians who suspect they are
being recorded without their consent would likely and understandably question a
patient’s or family’s motives. Without intending, physicians may then question
their own decision making, rethink their assessments and recommendations, and
ask themselves how someone else—perhaps a lawyer or judge—would evaluate their
decisions. Physicians may then feel more inclined to order additional tests and
imaging than they otherwise would, practicing defensive medicine and
potentially increasing health care costs. Even though physicians could
terminate their relationships with patients they suspect of surreptitious
recordings, this could give rise to additional disruptions in individual
patient-physician relationships and perhaps undermine public trust in
physicians and the medical establishment.
How, then, can physicians protect themselves from the
potentially negative effects of surreptitious recordings? For better or worse,
the technological advances cannot be undone. Several strategies exist for the
medical profession. Changing federal or state laws related to the recording of
private conversations is not one of them, at least not in the short term. This
would take years, if not decades, and would require inordinate capital and
political effort. Furthermore, the public will undoubtedly question what it is
physicians are seeking to hide by attempting to change the law to prohibit
recordings without their consent. What response could possibly outweigh the
need for transparency in physician decision making in the patient-centered
culture of health care?
As is often the case when anticipating ethical challenges in
patient-physician relationships, the solution lies with physicians. The first
and most essential strategy entails being aware of and embracing the
possibility that every conversation with a patient or his or her family may be
recorded. Physicians can use this knowledge as an incentive to ensure that
their words convey sensitive information efficiently, effectively, and
compassionately. Professionalism requires not only honesty but also a commitment
to developing effective communication skills. If the possibility of recording
causes physicians to refine their skills and, in their intimate moments with
families, to pause and reassess their choice of words, then physicians should
consider this possibility as an opportunity to grow as health care
professionals and strengthen patient-physician relationships.
If a physician suspects that a conversation is being
recorded, that physician could handle the situation in several different ways
that could benefit all parties. Doing so would first require that the physician
be aware of the possibility of secret recordings. The physician can ask the
patient if he or she is recording the conversation. Then, regardless of the
answer, the physician can express assent, note constructive uses of such
recordings, and educate the patient about the privacy rights of other patients
so as to avoid any violations. Taking such an approach would demonstrate the
physician’s openness and desire to strengthen the relationship with the
patient. The physician could also ignore any suspicions and provide care as he
or she normally would without letting the possibility of recording affect
either attitude toward the patient or medical decision making.
Unless federal or state laws change, physicians should be
aware of the possibility that their conversations with patients may be
recorded. If physicians embrace this possibility, establish good relationships
with their patients, provide compassionate and competent care, and communicate effectively
and professionally, the motives of patients and families in recording visits
will be irrelevant.
Questions:
1. As of January 2014 ___% of Americans
owned a smartphone, including ___% of
young adults.
a. 25, 50
b. 10, 90
c. 58, 83
d. 83, 58
2. True or
False:
Federal law
prohibits recording a private conversation unless at least one party to the
conversation
consents to the recording.
3. The following
states provide additional protections to those involved in private
conversations by
requiring that all parties to a conversation consent to the recording:
a. Minnesota
b. California
c. Florida
d. Texas
e. b and c
4. According to this author, recoded
patient visits could potentially improve which
of the following
for patients by providing opportunity to review conversations:
a. accuracy
(understanding) of clinical information
b. adherence to
instructions
c. personal
engagement
d. All of the
above
5. True or
False:
According to
this author, changing federal or state laws related to the recording of
private
conversations is not a solution, at least in the short term. Providers would be
best served by
embracing the possibility that every conversation with a patient or
his or her
family may be recorded.
References
Pew Research
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Accessed February 25, 2015.
Interception and
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Accessed January 26, 2015.
Kirby R.
Welcome to the world of digital audio recordings of your consultations. March
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Secretly
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Azoulay E,
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Tex Penal Code §31.02,
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Accessed January 30, 2015.
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