by Rich Cahill, Vice President and Associate General Counsel, The Doctors Company
"Doctor, can I record our conversation today?"
Have you ever heard that question from a patient or a patient's family member? The issue of allowing patients to record their appointments requires balancing potential privacy and liability risks with the potential benefits of improved patient recollection of instructions and treatment adherence.
It's typically not the best course to allow patients to record the appointment. The recording devices could be disruptive and could be potentially intimidating to physicians and staff. In addition, these recordings -- unlike the electronic health record -- can be altered or manipulated to create an inaccurate portrayal of what actually occurred. These recordings can also easily be streamed or posted online, raising the issue of patient and staff privacy and HIPAA compliance. In addition, recording the visit may inhibit the flow of information between the doctor and patient. Patients may be less likely to be open about sensitive health issues because of the fear that the recording might be listened to by an outside party.
If a patient records a visit without the doctor's permission, that can result in a loss of trust, which is the basis of a strong physician-patient relationship. Only about a dozen states nationwide prohibit electronic recordings done without the explicit consent of all participants in the encounter. It is important to know the specific laws concerning recordings in the jurisdiction where you practice. Regardless, it is recommended that patients be advised unequivocally that digital recordings by handheld devices such as smartphones are prohibited on the premises in order to protect the privacy of other patients and staff in compliance with federal and state privacy laws.
Post this notice clearly on your practice website, in the conditions of treatment signed by the patient at the outset of the relationship, and as office signage near the reception window. Suspected violations should be handled immediately. If this policy is violated, meet with the patient in a confidential setting to discuss the issue and reiterate the office policy. Depending on the circumstances and the status of the patient's current episode of care, advise the patient that further violations may result in termination of the physician-patient relationship.
If patients ask to record the visit, encourage them instead to take notes or to have a trusted family member or friend join them for the office visit to help take notes, remember information, and ask questions. Doctors can also encourage patients to be engaged in the conversation with "Ask Me 3," a program that promotes clear communication through these three main questions:
- What is my main problem?
- What do I need to do?
- Why is it important for me to do this?
Doctors should also ask patients to repeat back the information shared, and then correct any misunderstandings.
Contributed by The Doctors Company. For more patient safety articles and practice tips, visit www.thedoctors.com/patientsafety.