Home Forums Discussions General Discussion Patients using audio recorders during appointments.

This has become a trend recently. I have had a run of people wanting to record the appointment for whatever reason. "Wife/Husband wants to make sure I tell him/her everything...." With iphones and other smartphones, everyone has a recorder these days. My surgical colleague spoke about a patient who turned his phone recorder on during surgery to verbally 'catch' any screw-ups, if it happened. Today, I had a patient recording an appointment for his 90 year old mom with multiple medical problems becoming weak, after taking statins, which he had objected to when her PCP started her on it. The other day I had a woman with 'Chronic Lyme's disease' who became very upset because I would not let her record. Many a times, we discuss a lot of hypothetical differentials which are not mentioned in our notes. These appointments if verbally transcribed can be misconstrued in the wrong context.

How are you folks dealing with this issue?
I plan to insert a line in the office policies document that the patient signs to state that 'all recording devices are strictly prohibited'.

I give a lot of handouts, things I have prepared, (as templates in Amazing Charts) or things I have typed out for them while they wait. Maybe this (and avoiding jargon when we explain things) will serve as a pre-emptive strike and make people feel that they don't need a tape recorder. I am not comfortable trying to explain something, then hearing myself on tape.

I came in a room one time and the wife pulled a recorder from her purse like a 6 gun, sticking it in my face when I was supposed to offer an opinon about a problem on the skin. I couldn't really see the skin or anything else at that point, (all the RED FLAGS waving in the room seemed to block my vision.) I looked concerned at the skin for a time, while I thought about this, and announced very clearly that I was not sure what the skin condition was, and I would give them a list of dermatologists to chose from for this problem. (4'th and LONG, punt!)

I know I would never allow it. They would have to either turn it off or leave.

The other alternative would be to tell them I am not comfortable with having visits recorded and, if they insist on it, I would do the history and physical, record the diagnosis in the chart, then give the necessary treatment, e.g. prescriptions. I would have already told them I wouldn't be able to explain anything about the diagnosis or visit with the tape recorder on.

I had only one patient who recorded everything. It didn't bother me b/c he had legitimate memory problems and these recorded visits were helpful for him. I have one other patient who wants the printed office note at the end of every visit. That doesn't bother me either. But I am careful not to record observations in her care that would be misconstrued as offensive to her.

I share the concern others have about the legal implications of a patient having added ammunition in the event of a law suit. But I always try to stay professional with patients, so whether they have a recorder in a handbag or laying out on the table it's the same either way.

I'm curious as to whether these are long-term patients who have a new bright idea, relatively new patients, referrals, escapees from urgent care and the
ER, or what. One assumes they have some experience causing them to be distrustful of doctors in general, unless they have a legitimate issue with understanding or a spouse who just does not accept the patient's version of the story. I can sympathize with the patient who has to explain a fairly complex decision making process to his/her spouse and who got the general gist of the visit but not the crucial details. I have a few such patients where the spouse is much swifter medically than the patient and who really needs to be part of the process, but who also has a full time job and can't make every visit. In that case it is not a lot different from the wife coming in because she is sure the husband minimizes his symptoms and the recording issue would not be about me at all.

Check the law in your state. Many states (such as Florida, where I practice), have a "two party consent" law, which makes it a crime to intercept or record a "wire, oral, or electronic communication", unless all parties consent. The only exception is if the parties do not have a reasonable expectation of privacy such as public place where they might reasonably be overheard. Conversation in a physician's office -- well, common sense tells you is private. In addition to criminal prosecution, violating the law can expose the offender to a civil lawsuit for damages by the injured party.

I also don't allow recordings. If I'm challenged, I tell the patient "because recordings can be tampered with". They might as well know that their request causes distrust. Patients must come to appointments prepared to ask questions. If the reason given is to have a third party review the discussion, I tell them there is no way I can explain something to someone who isn't present. The third person would be better served by just calling me.

Does it also apply to non-telephone conversation?
http://www.pimall.com/nais/n.recordlaw.html

There are twelve states that require all party consent. They are:
California
Connecticut
Delaware
Florida
Illinois
Maryland
Massachusetts
Michigan
Montana
New Hampshire
Pennsylvania
Washington

There are laws about telephone recordings, and laws about intellectual property (you aren't supposed to record concerts, etc.), but I never heard that it applied to conversations on the street, in a business encounter -- like a shop -- or for that matter, in a doctor's appointment.

Even if there were such a law, the odds are that you would have to argue with a patient who was determined to record (and who would deny that the law existed), waste your time, and certainly create suspicion all around.

As a matter of practicality, I treat every encounter as though a lawyer and an FBI agent were in the room with us, and I guess I wouldn't really object to a recorder unless it interfered with the exam or the interview.

When it comes to documenting, I have long since given up the idea that the notes are my personal property -- the electronic revolution has taken care of that -- and I make my notes as generic and uncompromising, even flattering as I can. If I have real concerns about someone I put a sticky note in the paper chart (we continue to use concurrent paper -- I don't trust electronics over the long term). That, of course, would go "away" if there were a request for records.

In Florida, the law makes no distinction between protected oral and electronic communication:

Florida Statutes 934.03-934.09: "It is unlawful under for a person to record a wire, oral, or electronic communication unless all of the parties to the communication have given prior consent to such interception."

I expect it is the same in the other 12 "two-party" states.

In any case, it is the person seeking to record who creates suspicion, not the doctor refusing. Recordings can be tampered with. I am sure all of us have experienced rare patients changing prescriptions, notes, lab slips, etc. to their advantage. Recorders are red flags, IMHO.

In Maine, it is perfectly legal for a person to record a phone conversation without the other party knowing. What you can't do is record a conversation you are not part of that involves a 3rd party.

You can take as well. I taped a conversation of the Hampden Water District's assistant supervisor, who stated, "Yes, what we did basically was fraud."

Check out the link below. It looks like we have no such protections here. I have had a patient want to have the phone on speaker with a partner. This was uncomfortable but I allowed it, probably would not again. I would offer to give a printed summary. We must always keep in mind someone may have a hidden recording device.
http://www.mrcustodycoach.com/blog/resources/recording-telephone-calls-laws-state-by-state-directory

Why don't just say "No" if you're uncomfortable with recording. No where is it written, patients have the right record their visits with their physician. They do have the right to go to any other medical provider they want. You do need to warn them to not let the door hit them on the way out of your office.

I think part of the issue is that it is possible to record using a smart phone without the doctor knowing. Sometimes it isn't the patient, its the nosy friend or family member. It helps to know the law in your state, in case you find out later.

We run an office lab, and draw blood on our patients, and had an issue with patients wanting us to draw blood for other doctors. Having the line & verse of the Physician Office Lab regs shut up the argumentative ones.

The laws about intellectual property in the country exist but just need is to implement them but in a business encounter they seems to be violated at all levels.