Please upgrade your browser

Doctor may have the right to say no if a patient wants to record his or her doctor visit

August 15th, 2017 | Posted in Uncategorized

For patients who may have trouble remembering or may just be too nervous during a doctor’s visit to pay strict attention to a lot of detail, recording the conversation with a provider may help. But depending on state laws, the provider may be able to prevent it.

On July 10 the Journal of the American Medical Association (JAMA) published a paper by Glyn Elwyn, M.D., professor and senior scientist at The Dartmouth Institute for Health Policy & Clinical Practice at Hanover, N.H., and others, about the legal rights of providers whose patients wish to record their encounters.

The paper features a map detailing which states require multi-party consent for such recordings and which require only single-party consent — that is, states that allow patients to tape without the provider’s consent.

But state laws are not always that cut and dried. Connecticut, for example, requires all-party consent for recording telephone calls, but not for face-to-face conversations. The Reporters Committee for Freedom of the Press has a more comprehensive study (for a link, see resources, below).

Regardless of what the law may allow in the state in which the doctor’s visit is happening, the provider still has the right to refuse to allow a recording, says Bill Hopkins, a partner in the law firm Shackelford Bowen McKinley & Norton in Austin, Texas.

A patient doesn’t have an absolute right to record an encounter with a doctor, Hopkins told Part B News, a DecisionHealth publication. “The bottom line of the doctor/patient relationship is that it’s voluntary. The doctor can always say, ‘I appreciate your interest but I’m not OK with it.’”

In some cases, a patient may have to choose between the doctor and the right to record. Even in single-party states, while the patient may be allowed to record a provider, an individual doctor doesn’t have to be the provider in question, notes Hopkins.

There are reasons doctors may not want to be recorded, and many may be understandable. For instance, the recordings may be used in litigation.

There was even the case of a recording in which neither the patient or provider knew of it. You may remember the Virginia patient whose recorder was inadvertently left running during his colonoscopy, capturing the rude remarks his anesthesiologist made about him while he was under sedation; he won a $500,000 judgment on those grounds in 2015.

No wonder many doctors worry about recording, says Teri Dreher, RN, CCRN, owner and CEO of NShore Patient Advocates in Chicago. “The doctor would rather answer openly and freely without worrying about how their words may be received in court, how binding their statements will be,” she says.

On the other side, many patients who record do so not because they want to sue but because they want to better understand what’s being said to them. Discomfort with medical jargon and the nervousness attendant upon a doctor visit might make it hard for patients to catch what the doctor is saying, and recording it may help.

Dreher suggests that patients articulate their reasons for recording along these lines: “Doctor, sometimes I cannot write everything down fast enough… would you mind if I recorded our conversation so I can go back over it later with my family to make sure I do not misquote you and we all understand what you are saying correctly later on?”

Patients should also be aware that by recording the encounter, they may give up a right to privacy of their medical records, especially if that is spelled out in the provider’s HIPAA policy.

“Say a husband and wife become embattled at a later date, and because the wife can get to his phone, she accesses his medical history and uses it against him… a lawyer could argue that giving access to the phone is like giving access to the [medical] file,” notes Hopkins. — Roy Edroso (redroso@decisionhealth.com)

Resources: