Look around your waiting room. You’ll likely find most patients on their phones texting, emailing, surfing the internet, or listening to music or podcasts. In this age of continuous real-time and on-demand media, how do you know whether your patients are also using their devices to record their office visit without your knowledge or consent? Should patients be allowed to record these visits?
It is understandable why some patients would want to record their office visit. The time with the physician is often brief and patients may feel rushed. In addition, patients may be overwhelmed by the amount or nature of what is being discussed and may have difficulty understanding and retaining diagnoses and follow-up instructions. Or perhaps they simply want to share the information discussed with a family member or friend.
While physicians might not be comfortable with the idea of being recorded, there are some definite upsides, including increased patient engagement and compliance with care. However, there always must be consent between doctor and patient.
Fear of litigation, loss of privacy, and the threat of publication on social media are valid concerns for the provider.1 The physician-patient relationship is a partnership of trust. Any secret recordings would undermine that trust and could inhibit open disclosure of more sensitive information or admission of certain problems during their visit. While the federal wiretapping law (18 U.S. Code § 2511) requires only one person consent to record a conversation,2 California requires that all parties must consent to recording a conversation. Secretly recording physician visits is illegal in California.3 Therefore, recording a physician visit would not be allowed without the physician’s consent.
What about confidentiality issues? The HIPAA Privacy Rule is designed to protect patients’ health information from accidental or intentional disclosure by healthcare providers, but these regulations do not prohibit patients from disclosing their own protected health information (PHI), so long as it does not violate another party’s rights. Of course, if the physician records a patient encounter, HIPAA requires that the recording must be protected in the same manner as any other PHI. (For specific questions or concerns about HIPAA violations, we recommend consulting a healthcare attorney.)
Establishing Policies and Procedures
Regardless of whether you permit or prohibit video recording in your practice, it is prudent to develop clearly defined policies and procedures that protect patient privacy and honor the physician-patient relationship. Some tips to get started:
Make sure that all patients receive and sign a copy of your video/audio recording policies. Include these with your new patient intake materials or distribute them to existing patients upon check-in. Be sure to scan and keep the electronic signed copy in the patient’s medical records.
In your recording policy, be sure to address your office's position on patient and provider recording of visits.
If you do allow recording of visits, explain under what circumstances a recording may be done, and by whom.
If the physician/medical staff is recording the visit, include a consent form that fully discloses the purpose of the recording, who can view it, where it will be stored, and for how long.
For those practices that do not want to allow recordings of any kind, we recommend you post a highly visible, easy-to-read sign at the practice entrance or check-in area that clearly states: “This office strictly prohibits electronic recording or videotaping of any kind in consideration of the privacy and confidentiality of the physician-patient relationship. We sincerely appreciate your compliance with our request.”
If you are interested in a secure, HIPAA-compliant application that allows you to record clinical visits or provide video educational materials to your patients, please consult the CAP Marketplace.
Deborah Kichler is a Senior Risk Management and Patient Safety Specialist for CAP. Questions or comments related to this article should be directed to DKichler@CAPphysicians.com
“Secretly Recording Your Doctor’s Appointments. “Naveed Saleh, MD, MS, June 8, 2020. https://www.verywellhealth.com/secretly-recording-your-doctor-appointme…
“What to do When Patients Want to Record Their Doctor Visits.” Richard Cahill, J.D., March 1, 2017. https://www.thedoctorweighsin.com
“Can Patients Record Doctor’s Visits? What Does the Law Say?” The Dartmouth Institute for Health Policy & Clinical Practice, July 10, 2017. https://www.sciencedaily.com/releases/2017/07/170710135301.htm .
1Audio-Video Recording of Patient Visits. Jeffrey A. Woods, JD. The Sentinel, July 2018. home.svmic.com/resources/newletters/145/audio.
2“State, federal laws govern whether doctor visits can be recorded.“ Laura J. Sigman, MD, JD, FAAP, April 30, 2019. www.publications.aap.org/aapnews/13600.
3Cal. Penal Code § 632(a) https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?law…