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Last year, while sedated for colonoscopy, a patient covertly recorded conversations between endoscopy staff and providers. Comments about the patient were egregious and resulted in loss of employment for those involved and a large financial settlement. The reality of today’s world is that we all are subject to constant (real or potential) surveillance. Nothing is private and nothing recorded is temporary, yet physicians value private conversations with our patients. When a patient records a visit, either covertly or overtly, most physicians pause and have some emotional reaction (either positive or negative). Some welcome the ability to communicate accurately to a wider audience, while others believe the act of recording violates an interpersonal bond. In this month’s issue, Dr. Adams discusses the legal and ethical ramifications when a patient records our clinical interactions. She offers an excellent analysis and practical risk management strategies. Personally, I follow my wife’s dictum to act as if I am always on camera.
John I. Allen, MD, MBA, AGAF
Editor in Chief
Patients and physicians were collectively horrified last year when news broke of a Virginia man who recorded conversations between his gastroenterologist, his anesthesiologist, and other endoscopy unit staff, including a number of disparaging remarks about the patient, while sedated for his colonoscopy. Among other objectionable comments, providers mocked the patient for being demanding in the preprocedure area and for the amount of sedation he required, made comments implying that he had syphilis or tuberculosis, and discussed avoiding the patient following the procedure via an urgent “fake page.”1 The patient sued, resulting in a $500,000 judgment against the anesthesiologist for defamation and malpractice, including punitive damages. Although this case clearly represents an extreme example of unprofessional behavior, it also raises thought-provoking questions regarding the evolving relationship between patients and their physicians, as well as the legal and ethical implications of covert recording that deserve further discussion.
This article reviews the current state of knowledge regarding the frequency of and motivation for covert patient recording of medical encounters, and the legal and ethical principles informing this area. It concludes by proposing several strategies gastroenterologists can use to mitigate risk of liability while also preserving the patient-physician relationship and upholding professional autonomy.
Weighing the benefits and harms of patient electronic recording
Patient recording of medical encounters, whether covert or overt, presents both benefits and risks of harm. Theoretically, recording medical encounters could assist patients in remembering and/or better understanding recommendations provided by their physicians. It may also secondarily improve patient compliance and overall engagement in medical care and help patients accurately communicate recommendations to family members and other caregivers who are not immediately available during the clinical encounter. Patients may also view these recordings as a mechanism for empowerment, allowing them to shift the power dynamic between patient and provider.2,3 However, there is also the potential for recorded comments to be taken out of context or misinterpreted, leading to confusion on the part of the patient or family. Overt recording of medical encounters also may alter physician decision-making, leading to more aggressive testing and expense for the patient and the healthcare system. Even worse, covert recording of medical encounters (if discovered) may irreparably harm the physician-patient relationship by introducing distrust and causing the physician to take a more defensive posture in subsequent dealings with a given patient.
Recent research has shed new light on the potential frequency of patient covert recording of medical encounters, suggesting that it is alarmingly common. In a mixed-methods study of 130 patients in the United Kingdom who were recruited via radio and social media, 15% of respondents indicated that they had secretly recorded a clinical encounter, and an additional 11% personally knew someone who had covertly recorded.4 Those who reported having covertly recorded were significantly more likely to be less educated and male than those who had not. An additional 35% of respondents indicated that they would consider covertly recording a clinical encounter in the future. Although the generalizability of these results may be challenged based on the potential for sampling bias, the results suggest a shifting paradigm in the way in which patients view the physician-patient relationship and a fundamental breakdown in communication and erosion of trust.
The underlying motivations for patient recording of medical encounters are complex and multifaceted. These recordings seem to be a relatively new phenomenon and one that elicits strong reactions, positive and negative, on the part of patients, physicians, and society.2 Qualitative studies reveal that, whether covertly or overtly recording, most patients are driven by a common desire to replay, relisten, and/or share the recording with family, friends, and other caregivers.4 Indeed, the patient involved in the previously mentioned litigation purportedly intended to record the postcolonoscopy discharge instructions from his gastroenterologist, only to later discover much more. Patients who record covertly report being motivated by a fear of being denied permission to record or by prior experiences of poor quality care and the prospect of gathering verifiable evidence to support their experience. In contrast, patients who ask permission to record seem to be motivated primarily by a desire to preserve or enhance the physician-patient relationship.4 These insights are valuable in that they allow clinicians to view medical encounters from the perspective of patients, understand the power-dynamics at play, and ultimately, use this information to enlighten future care.
Legal guidance: “One-party” versus “all-party” consent
Although the prospect of covert patient recording may be unsettling to physicians, is it illegal? Because of a paucity of legal precedent in this area, the legal landscape is rather murky. Through the provisions of the Electronic Communications Privacy Act, federal law prohibits the interception and disclosure of wire, oral, or electronic communications without specific consent of at least one party to the conversation.5 This so-called “one-party” consent standard affords a baseline level of legal protection. A handful of states offer additional protection under state law by requiring all parties to the conversation to consent to the recording (so-called “all-party” consent). Virginia, where the audio recording of the previously mentioned colonoscopy took place, is a “one-party” consent state.6 In contrast, states such as California and Florida have adopted an “all-party” consent rule.7,8
However, uncertainty remains. For instance, if medical providers have a conversation in the same room as a sedated patient during a medical procedure on that patient, is the patient a “party” to the conversation? Furthermore, can such a conversation be considered private when held in front of a patient during a medical procedure? Is the patient in such a scenario “eavesdropping”? Given a lack of legal precedent in the form of case law and given the unique features of each clinical scenario, this is likely to remain an area of significant legal ambiguity. Although the possibility of covert patient recording may be unnerving for providers, the reality is that, in most cases, it is likely legally permissible.
Ethical principles: Navigating an evolving physician-patient relationship
The relationship between physician and patient, a core aspect of medical ethics, has evolved markedly over time. This relationship was historically paternalistic: The patient was seen to be dependent on the physician’s professional authority in determining the appropriateness of care, and patient’s preferences were seen as secondary to physician judgment. In recent years, however, the physician-patient relationship has evolved toward one privileging patient-centered care and shared decision-making based on a patient’s unique values, beliefs, and preferences.9,10
Concomitantly, the public’s view of doctoring has transitioned from “unquestioning acceptance of physician authority to a more ‘consumerist’ view accompanied by a questioning and bargaining approach to medicine, physicians and the medical encounter,” according to a 2001 study published in the Journal of Health and Social Behavior.11 In this context, many patients, attorneys, bioethicists, and patient advocates see patient recording of medical encounters as a legitimate check on the health care system, ensuring transparency and honesty and empowering patients to become more active participants in their medical care.2
Policy responses
Although recognition of patient recording of medical encounters has been growing, there have been few direct policy responses to date. One notable example was an effort by Wisconsin legislators in 2015 to mandate that any place where surgery is performed (including hospitals, ambulatory surgical centers, and other sites) offer patients the option to have their procedure videotaped and audiotaped.12 The proposed legislation was written broadly enough to include locations where gastroenterologists perform routine endoscopic procedures under sedation. Recordings would have been treated as part of the patient’s health care record and been admissible as evidence in subsequent legal proceedings relating to the medical care provided. Although this bill ultimately failed to pass pursuant to a Joint Resolution in the Wisconsin Senate in April 2016, it is a poignant example of the possible policy actions that may govern this area in the future.
In 2012, the National Institute for Health and Clinical Excellence, England, issued a guidance document focused on improving the patient care experience, which recommends that clinicians routinely ask patients if they would like to take notes and/or record the clinical encounter.13 Although not explicitly referencing covert recording, this guidance effectively aims to promote increased transparency by openly encouraging recording as a component of optimal medical practice. Although the American Medical Association Code of Ethics offers guidance regarding physicians recording patient encounters, it does not comment on patient-initiated recordings.14
Risk management strategies for gastroenterology providers
So, how can gastroenterologists and other providers protect themselves in a world of covert recording, while also preserving their relationships with patients and optimizing medical care? First, despite their harried days and varied responsibilities, gastroenterologists must recognize the possibility of covert recording and seek to maintain professionalism in all clinical environments, whether in an examination room or in an endoscopy suite with a sedated patient. Physicians set the tone for the entire team and also have an obligation to intervene if other members of the medical team are not adhering to professional standards. Although physicians and other medical providers often use cynical and derogatory humor as a coping mechanism given the heavy workload and amplified stressors of the clinical environment, it is important to be mindful of how such comments are perceived by patient bystanders.15,16 Although achieving a robust therapeutic alliance with a patient can take months, this trust can be easily broken by a single flippant remark by the physician.
Second, rather than assuming a defensive posture driven by fear of medical liability, it is vital for gastroenterologists to directly confront situations in which covert recording is suspected while also preserving the physician-patient relationship. In fact, by openly encouraging patient recording as a matter of routine practice, gastroenterologists can promote an environment of trust and transparency and bolster the therapeutic alliance between patient and provider.15 This approach also encourages providers to hone their communication skills and ensure they are communicating essential medical information clearly and succinctly and conveying medical nuance where appropriate. For example, in a clinic setting, a patient with inflammatory bowel disease who records might better remember or understand the risks and benefits of various treatment strategies and the common side effects of medications such as azathioprine and biologics. Patients recording medical encounters in the endoscopy suite might better recall postprocedure instructions, including recommended follow-up intervals and risks of postendoscopy complications. In this era of shared decision-making and patient-centered care, optimizing both physician delivery and patient understanding and recall of essential medical information is of critical importance.
Finally, although adoption of the above practices would serve the dual goals of enhancing patient-provider communication and mitigating legal risk, certain system interventions may further minimize the risk of covert recording. For instance, endoscopy units can store patients’ personal effects, including electronic devices, in a locker outside the endoscopy room rather than on the gurney. Retrieving patient belongings before postprocedure instructions are delivered would protect the patient’s ability to record this advice for future recall.
Conclusions
Recording by patients of clinical encounters, whether covert or overt, has become increasingly common as a result of the digital revolution. These recordings most often represent an attempt by the patient to gain more information relevant to their medical care. Rather than being threatened by this new reality, gastroenterologists should consider embracing this practice as an opportunity to enhance effective communication with patients, encourage shared decision making, and deliver truly patient-centered care.
Acknowledgments
This article is intended as general commentary and should not be interpreted as legal advice applicable to individual circumstances. Do not act or rely on information contained in this article without first seeking the advice of a personal attorney.
References
1. Washington Post. (2015 June 24). Audio: Anesthesiologist trashes sedated patient. Available at: https://youtu.be/Kar52idHgho. Accessed May 15, 2016.
2. Tsulukidze, M., Grande, S.W., Thompson, R., et al. Patients covertly recording clinical encounters: threat or opportunity? A qualitative analysis of online texts. PLoS One. 2015;10:e0125824.
3. Rodriguez, M., Morrow, J., Selfi, A. Ethical implications of patients and families secretly recording conversations with physicians. JAMA. 2015;313(16):1615-6.
4. Elwyn, G., Barr, P.J., Grande, S.W. Patients recording clinical encounters: a path to empowerment? Assessment by mixed methods. BMJ Open. 2015;5(8):e008566.
5. 18 U.S.C. §2511(2)(d).
6. VA Code §19.2-62.
7. Cal. Penal Code §632.
8. Fla. Stat. Ann. §934.03(3)(d).
9. Truog, R.D. Patients and doctors: the evolution of a relationship. N Engl J Med. 2012;366:581-5.
10. Barry, M.J., Edgman-Levitan, S. Shared decision making: the pinnacle of patient-centered care. N Engl J Med. 2012;366:780-1.
11. Pescosolido, B.A., Tuch, S.A., Martin, J.K. The profession of medicine and the public: examining Americans’ changing confidence in physician authority from the beginning of the ‘health care crisis’ to the era of health care reform. J Health Social Behavior. 2001;42(1):1-16.
12. Wisconsin Assembly Bill 255. (2015). Available at: https://docs.legis.wisconsin.gov/2015/proposals/ab255. Accessed June 29, 2016.
13. National Institute for Health and Clinical Excellence. (2012 Feb). Patient experience in adult NHS services: improving the experience of care for people using adult NHS service. Available at: https://www.nice.org.uk/guidance/cg138/chapter/1-guidance. Accessed June 29, 2016.
14. American Medical Association Code of Medical Ethics, Opinion 5.045 - Filming Patients in Health Care Settings. Updated June 2006. Available at: http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion5045.page? Accessed June 29, 2016.
15. Aultman, J.M. When humor in the hospital is no laughing matter. J Clin Ethics. 2009;20:227-35.
15. Sobel, R.K. Does laughter make good medicine? N Engl J Med. 2006;354:1114-5.
Dr. Adams is a clinical lecturer in the division of gastroenterology, University of Michigan, Ann Arbor, an investigator with the VA Center for Clinical Management Research, a staff physician in the VA Ann Arbor Healthcare System, and a member of the Institute for Healthcare Policy and Innovation, Ann Arbor. She has no conflicts of interest.
Last year, while sedated for colonoscopy, a patient covertly recorded conversations between endoscopy staff and providers. Comments about the patient were egregious and resulted in loss of employment for those involved and a large financial settlement. The reality of today’s world is that we all are subject to constant (real or potential) surveillance. Nothing is private and nothing recorded is temporary, yet physicians value private conversations with our patients. When a patient records a visit, either covertly or overtly, most physicians pause and have some emotional reaction (either positive or negative). Some welcome the ability to communicate accurately to a wider audience, while others believe the act of recording violates an interpersonal bond. In this month’s issue, Dr. Adams discusses the legal and ethical ramifications when a patient records our clinical interactions. She offers an excellent analysis and practical risk management strategies. Personally, I follow my wife’s dictum to act as if I am always on camera.
John I. Allen, MD, MBA, AGAF
Editor in Chief
Patients and physicians were collectively horrified last year when news broke of a Virginia man who recorded conversations between his gastroenterologist, his anesthesiologist, and other endoscopy unit staff, including a number of disparaging remarks about the patient, while sedated for his colonoscopy. Among other objectionable comments, providers mocked the patient for being demanding in the preprocedure area and for the amount of sedation he required, made comments implying that he had syphilis or tuberculosis, and discussed avoiding the patient following the procedure via an urgent “fake page.”1 The patient sued, resulting in a $500,000 judgment against the anesthesiologist for defamation and malpractice, including punitive damages. Although this case clearly represents an extreme example of unprofessional behavior, it also raises thought-provoking questions regarding the evolving relationship between patients and their physicians, as well as the legal and ethical implications of covert recording that deserve further discussion.
This article reviews the current state of knowledge regarding the frequency of and motivation for covert patient recording of medical encounters, and the legal and ethical principles informing this area. It concludes by proposing several strategies gastroenterologists can use to mitigate risk of liability while also preserving the patient-physician relationship and upholding professional autonomy.
Weighing the benefits and harms of patient electronic recording
Patient recording of medical encounters, whether covert or overt, presents both benefits and risks of harm. Theoretically, recording medical encounters could assist patients in remembering and/or better understanding recommendations provided by their physicians. It may also secondarily improve patient compliance and overall engagement in medical care and help patients accurately communicate recommendations to family members and other caregivers who are not immediately available during the clinical encounter. Patients may also view these recordings as a mechanism for empowerment, allowing them to shift the power dynamic between patient and provider.2,3 However, there is also the potential for recorded comments to be taken out of context or misinterpreted, leading to confusion on the part of the patient or family. Overt recording of medical encounters also may alter physician decision-making, leading to more aggressive testing and expense for the patient and the healthcare system. Even worse, covert recording of medical encounters (if discovered) may irreparably harm the physician-patient relationship by introducing distrust and causing the physician to take a more defensive posture in subsequent dealings with a given patient.
Recent research has shed new light on the potential frequency of patient covert recording of medical encounters, suggesting that it is alarmingly common. In a mixed-methods study of 130 patients in the United Kingdom who were recruited via radio and social media, 15% of respondents indicated that they had secretly recorded a clinical encounter, and an additional 11% personally knew someone who had covertly recorded.4 Those who reported having covertly recorded were significantly more likely to be less educated and male than those who had not. An additional 35% of respondents indicated that they would consider covertly recording a clinical encounter in the future. Although the generalizability of these results may be challenged based on the potential for sampling bias, the results suggest a shifting paradigm in the way in which patients view the physician-patient relationship and a fundamental breakdown in communication and erosion of trust.
The underlying motivations for patient recording of medical encounters are complex and multifaceted. These recordings seem to be a relatively new phenomenon and one that elicits strong reactions, positive and negative, on the part of patients, physicians, and society.2 Qualitative studies reveal that, whether covertly or overtly recording, most patients are driven by a common desire to replay, relisten, and/or share the recording with family, friends, and other caregivers.4 Indeed, the patient involved in the previously mentioned litigation purportedly intended to record the postcolonoscopy discharge instructions from his gastroenterologist, only to later discover much more. Patients who record covertly report being motivated by a fear of being denied permission to record or by prior experiences of poor quality care and the prospect of gathering verifiable evidence to support their experience. In contrast, patients who ask permission to record seem to be motivated primarily by a desire to preserve or enhance the physician-patient relationship.4 These insights are valuable in that they allow clinicians to view medical encounters from the perspective of patients, understand the power-dynamics at play, and ultimately, use this information to enlighten future care.
Legal guidance: “One-party” versus “all-party” consent
Although the prospect of covert patient recording may be unsettling to physicians, is it illegal? Because of a paucity of legal precedent in this area, the legal landscape is rather murky. Through the provisions of the Electronic Communications Privacy Act, federal law prohibits the interception and disclosure of wire, oral, or electronic communications without specific consent of at least one party to the conversation.5 This so-called “one-party” consent standard affords a baseline level of legal protection. A handful of states offer additional protection under state law by requiring all parties to the conversation to consent to the recording (so-called “all-party” consent). Virginia, where the audio recording of the previously mentioned colonoscopy took place, is a “one-party” consent state.6 In contrast, states such as California and Florida have adopted an “all-party” consent rule.7,8
However, uncertainty remains. For instance, if medical providers have a conversation in the same room as a sedated patient during a medical procedure on that patient, is the patient a “party” to the conversation? Furthermore, can such a conversation be considered private when held in front of a patient during a medical procedure? Is the patient in such a scenario “eavesdropping”? Given a lack of legal precedent in the form of case law and given the unique features of each clinical scenario, this is likely to remain an area of significant legal ambiguity. Although the possibility of covert patient recording may be unnerving for providers, the reality is that, in most cases, it is likely legally permissible.
Ethical principles: Navigating an evolving physician-patient relationship
The relationship between physician and patient, a core aspect of medical ethics, has evolved markedly over time. This relationship was historically paternalistic: The patient was seen to be dependent on the physician’s professional authority in determining the appropriateness of care, and patient’s preferences were seen as secondary to physician judgment. In recent years, however, the physician-patient relationship has evolved toward one privileging patient-centered care and shared decision-making based on a patient’s unique values, beliefs, and preferences.9,10
Concomitantly, the public’s view of doctoring has transitioned from “unquestioning acceptance of physician authority to a more ‘consumerist’ view accompanied by a questioning and bargaining approach to medicine, physicians and the medical encounter,” according to a 2001 study published in the Journal of Health and Social Behavior.11 In this context, many patients, attorneys, bioethicists, and patient advocates see patient recording of medical encounters as a legitimate check on the health care system, ensuring transparency and honesty and empowering patients to become more active participants in their medical care.2
Policy responses
Although recognition of patient recording of medical encounters has been growing, there have been few direct policy responses to date. One notable example was an effort by Wisconsin legislators in 2015 to mandate that any place where surgery is performed (including hospitals, ambulatory surgical centers, and other sites) offer patients the option to have their procedure videotaped and audiotaped.12 The proposed legislation was written broadly enough to include locations where gastroenterologists perform routine endoscopic procedures under sedation. Recordings would have been treated as part of the patient’s health care record and been admissible as evidence in subsequent legal proceedings relating to the medical care provided. Although this bill ultimately failed to pass pursuant to a Joint Resolution in the Wisconsin Senate in April 2016, it is a poignant example of the possible policy actions that may govern this area in the future.
In 2012, the National Institute for Health and Clinical Excellence, England, issued a guidance document focused on improving the patient care experience, which recommends that clinicians routinely ask patients if they would like to take notes and/or record the clinical encounter.13 Although not explicitly referencing covert recording, this guidance effectively aims to promote increased transparency by openly encouraging recording as a component of optimal medical practice. Although the American Medical Association Code of Ethics offers guidance regarding physicians recording patient encounters, it does not comment on patient-initiated recordings.14
Risk management strategies for gastroenterology providers
So, how can gastroenterologists and other providers protect themselves in a world of covert recording, while also preserving their relationships with patients and optimizing medical care? First, despite their harried days and varied responsibilities, gastroenterologists must recognize the possibility of covert recording and seek to maintain professionalism in all clinical environments, whether in an examination room or in an endoscopy suite with a sedated patient. Physicians set the tone for the entire team and also have an obligation to intervene if other members of the medical team are not adhering to professional standards. Although physicians and other medical providers often use cynical and derogatory humor as a coping mechanism given the heavy workload and amplified stressors of the clinical environment, it is important to be mindful of how such comments are perceived by patient bystanders.15,16 Although achieving a robust therapeutic alliance with a patient can take months, this trust can be easily broken by a single flippant remark by the physician.
Second, rather than assuming a defensive posture driven by fear of medical liability, it is vital for gastroenterologists to directly confront situations in which covert recording is suspected while also preserving the physician-patient relationship. In fact, by openly encouraging patient recording as a matter of routine practice, gastroenterologists can promote an environment of trust and transparency and bolster the therapeutic alliance between patient and provider.15 This approach also encourages providers to hone their communication skills and ensure they are communicating essential medical information clearly and succinctly and conveying medical nuance where appropriate. For example, in a clinic setting, a patient with inflammatory bowel disease who records might better remember or understand the risks and benefits of various treatment strategies and the common side effects of medications such as azathioprine and biologics. Patients recording medical encounters in the endoscopy suite might better recall postprocedure instructions, including recommended follow-up intervals and risks of postendoscopy complications. In this era of shared decision-making and patient-centered care, optimizing both physician delivery and patient understanding and recall of essential medical information is of critical importance.
Finally, although adoption of the above practices would serve the dual goals of enhancing patient-provider communication and mitigating legal risk, certain system interventions may further minimize the risk of covert recording. For instance, endoscopy units can store patients’ personal effects, including electronic devices, in a locker outside the endoscopy room rather than on the gurney. Retrieving patient belongings before postprocedure instructions are delivered would protect the patient’s ability to record this advice for future recall.
Conclusions
Recording by patients of clinical encounters, whether covert or overt, has become increasingly common as a result of the digital revolution. These recordings most often represent an attempt by the patient to gain more information relevant to their medical care. Rather than being threatened by this new reality, gastroenterologists should consider embracing this practice as an opportunity to enhance effective communication with patients, encourage shared decision making, and deliver truly patient-centered care.
Acknowledgments
This article is intended as general commentary and should not be interpreted as legal advice applicable to individual circumstances. Do not act or rely on information contained in this article without first seeking the advice of a personal attorney.
References
1. Washington Post. (2015 June 24). Audio: Anesthesiologist trashes sedated patient. Available at: https://youtu.be/Kar52idHgho. Accessed May 15, 2016.
2. Tsulukidze, M., Grande, S.W., Thompson, R., et al. Patients covertly recording clinical encounters: threat or opportunity? A qualitative analysis of online texts. PLoS One. 2015;10:e0125824.
3. Rodriguez, M., Morrow, J., Selfi, A. Ethical implications of patients and families secretly recording conversations with physicians. JAMA. 2015;313(16):1615-6.
4. Elwyn, G., Barr, P.J., Grande, S.W. Patients recording clinical encounters: a path to empowerment? Assessment by mixed methods. BMJ Open. 2015;5(8):e008566.
5. 18 U.S.C. §2511(2)(d).
6. VA Code §19.2-62.
7. Cal. Penal Code §632.
8. Fla. Stat. Ann. §934.03(3)(d).
9. Truog, R.D. Patients and doctors: the evolution of a relationship. N Engl J Med. 2012;366:581-5.
10. Barry, M.J., Edgman-Levitan, S. Shared decision making: the pinnacle of patient-centered care. N Engl J Med. 2012;366:780-1.
11. Pescosolido, B.A., Tuch, S.A., Martin, J.K. The profession of medicine and the public: examining Americans’ changing confidence in physician authority from the beginning of the ‘health care crisis’ to the era of health care reform. J Health Social Behavior. 2001;42(1):1-16.
12. Wisconsin Assembly Bill 255. (2015). Available at: https://docs.legis.wisconsin.gov/2015/proposals/ab255. Accessed June 29, 2016.
13. National Institute for Health and Clinical Excellence. (2012 Feb). Patient experience in adult NHS services: improving the experience of care for people using adult NHS service. Available at: https://www.nice.org.uk/guidance/cg138/chapter/1-guidance. Accessed June 29, 2016.
14. American Medical Association Code of Medical Ethics, Opinion 5.045 - Filming Patients in Health Care Settings. Updated June 2006. Available at: http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion5045.page? Accessed June 29, 2016.
15. Aultman, J.M. When humor in the hospital is no laughing matter. J Clin Ethics. 2009;20:227-35.
15. Sobel, R.K. Does laughter make good medicine? N Engl J Med. 2006;354:1114-5.
Dr. Adams is a clinical lecturer in the division of gastroenterology, University of Michigan, Ann Arbor, an investigator with the VA Center for Clinical Management Research, a staff physician in the VA Ann Arbor Healthcare System, and a member of the Institute for Healthcare Policy and Innovation, Ann Arbor. She has no conflicts of interest.
Last year, while sedated for colonoscopy, a patient covertly recorded conversations between endoscopy staff and providers. Comments about the patient were egregious and resulted in loss of employment for those involved and a large financial settlement. The reality of today’s world is that we all are subject to constant (real or potential) surveillance. Nothing is private and nothing recorded is temporary, yet physicians value private conversations with our patients. When a patient records a visit, either covertly or overtly, most physicians pause and have some emotional reaction (either positive or negative). Some welcome the ability to communicate accurately to a wider audience, while others believe the act of recording violates an interpersonal bond. In this month’s issue, Dr. Adams discusses the legal and ethical ramifications when a patient records our clinical interactions. She offers an excellent analysis and practical risk management strategies. Personally, I follow my wife’s dictum to act as if I am always on camera.
John I. Allen, MD, MBA, AGAF
Editor in Chief
Patients and physicians were collectively horrified last year when news broke of a Virginia man who recorded conversations between his gastroenterologist, his anesthesiologist, and other endoscopy unit staff, including a number of disparaging remarks about the patient, while sedated for his colonoscopy. Among other objectionable comments, providers mocked the patient for being demanding in the preprocedure area and for the amount of sedation he required, made comments implying that he had syphilis or tuberculosis, and discussed avoiding the patient following the procedure via an urgent “fake page.”1 The patient sued, resulting in a $500,000 judgment against the anesthesiologist for defamation and malpractice, including punitive damages. Although this case clearly represents an extreme example of unprofessional behavior, it also raises thought-provoking questions regarding the evolving relationship between patients and their physicians, as well as the legal and ethical implications of covert recording that deserve further discussion.
This article reviews the current state of knowledge regarding the frequency of and motivation for covert patient recording of medical encounters, and the legal and ethical principles informing this area. It concludes by proposing several strategies gastroenterologists can use to mitigate risk of liability while also preserving the patient-physician relationship and upholding professional autonomy.
Weighing the benefits and harms of patient electronic recording
Patient recording of medical encounters, whether covert or overt, presents both benefits and risks of harm. Theoretically, recording medical encounters could assist patients in remembering and/or better understanding recommendations provided by their physicians. It may also secondarily improve patient compliance and overall engagement in medical care and help patients accurately communicate recommendations to family members and other caregivers who are not immediately available during the clinical encounter. Patients may also view these recordings as a mechanism for empowerment, allowing them to shift the power dynamic between patient and provider.2,3 However, there is also the potential for recorded comments to be taken out of context or misinterpreted, leading to confusion on the part of the patient or family. Overt recording of medical encounters also may alter physician decision-making, leading to more aggressive testing and expense for the patient and the healthcare system. Even worse, covert recording of medical encounters (if discovered) may irreparably harm the physician-patient relationship by introducing distrust and causing the physician to take a more defensive posture in subsequent dealings with a given patient.
Recent research has shed new light on the potential frequency of patient covert recording of medical encounters, suggesting that it is alarmingly common. In a mixed-methods study of 130 patients in the United Kingdom who were recruited via radio and social media, 15% of respondents indicated that they had secretly recorded a clinical encounter, and an additional 11% personally knew someone who had covertly recorded.4 Those who reported having covertly recorded were significantly more likely to be less educated and male than those who had not. An additional 35% of respondents indicated that they would consider covertly recording a clinical encounter in the future. Although the generalizability of these results may be challenged based on the potential for sampling bias, the results suggest a shifting paradigm in the way in which patients view the physician-patient relationship and a fundamental breakdown in communication and erosion of trust.
The underlying motivations for patient recording of medical encounters are complex and multifaceted. These recordings seem to be a relatively new phenomenon and one that elicits strong reactions, positive and negative, on the part of patients, physicians, and society.2 Qualitative studies reveal that, whether covertly or overtly recording, most patients are driven by a common desire to replay, relisten, and/or share the recording with family, friends, and other caregivers.4 Indeed, the patient involved in the previously mentioned litigation purportedly intended to record the postcolonoscopy discharge instructions from his gastroenterologist, only to later discover much more. Patients who record covertly report being motivated by a fear of being denied permission to record or by prior experiences of poor quality care and the prospect of gathering verifiable evidence to support their experience. In contrast, patients who ask permission to record seem to be motivated primarily by a desire to preserve or enhance the physician-patient relationship.4 These insights are valuable in that they allow clinicians to view medical encounters from the perspective of patients, understand the power-dynamics at play, and ultimately, use this information to enlighten future care.
Legal guidance: “One-party” versus “all-party” consent
Although the prospect of covert patient recording may be unsettling to physicians, is it illegal? Because of a paucity of legal precedent in this area, the legal landscape is rather murky. Through the provisions of the Electronic Communications Privacy Act, federal law prohibits the interception and disclosure of wire, oral, or electronic communications without specific consent of at least one party to the conversation.5 This so-called “one-party” consent standard affords a baseline level of legal protection. A handful of states offer additional protection under state law by requiring all parties to the conversation to consent to the recording (so-called “all-party” consent). Virginia, where the audio recording of the previously mentioned colonoscopy took place, is a “one-party” consent state.6 In contrast, states such as California and Florida have adopted an “all-party” consent rule.7,8
However, uncertainty remains. For instance, if medical providers have a conversation in the same room as a sedated patient during a medical procedure on that patient, is the patient a “party” to the conversation? Furthermore, can such a conversation be considered private when held in front of a patient during a medical procedure? Is the patient in such a scenario “eavesdropping”? Given a lack of legal precedent in the form of case law and given the unique features of each clinical scenario, this is likely to remain an area of significant legal ambiguity. Although the possibility of covert patient recording may be unnerving for providers, the reality is that, in most cases, it is likely legally permissible.
Ethical principles: Navigating an evolving physician-patient relationship
The relationship between physician and patient, a core aspect of medical ethics, has evolved markedly over time. This relationship was historically paternalistic: The patient was seen to be dependent on the physician’s professional authority in determining the appropriateness of care, and patient’s preferences were seen as secondary to physician judgment. In recent years, however, the physician-patient relationship has evolved toward one privileging patient-centered care and shared decision-making based on a patient’s unique values, beliefs, and preferences.9,10
Concomitantly, the public’s view of doctoring has transitioned from “unquestioning acceptance of physician authority to a more ‘consumerist’ view accompanied by a questioning and bargaining approach to medicine, physicians and the medical encounter,” according to a 2001 study published in the Journal of Health and Social Behavior.11 In this context, many patients, attorneys, bioethicists, and patient advocates see patient recording of medical encounters as a legitimate check on the health care system, ensuring transparency and honesty and empowering patients to become more active participants in their medical care.2
Policy responses
Although recognition of patient recording of medical encounters has been growing, there have been few direct policy responses to date. One notable example was an effort by Wisconsin legislators in 2015 to mandate that any place where surgery is performed (including hospitals, ambulatory surgical centers, and other sites) offer patients the option to have their procedure videotaped and audiotaped.12 The proposed legislation was written broadly enough to include locations where gastroenterologists perform routine endoscopic procedures under sedation. Recordings would have been treated as part of the patient’s health care record and been admissible as evidence in subsequent legal proceedings relating to the medical care provided. Although this bill ultimately failed to pass pursuant to a Joint Resolution in the Wisconsin Senate in April 2016, it is a poignant example of the possible policy actions that may govern this area in the future.
In 2012, the National Institute for Health and Clinical Excellence, England, issued a guidance document focused on improving the patient care experience, which recommends that clinicians routinely ask patients if they would like to take notes and/or record the clinical encounter.13 Although not explicitly referencing covert recording, this guidance effectively aims to promote increased transparency by openly encouraging recording as a component of optimal medical practice. Although the American Medical Association Code of Ethics offers guidance regarding physicians recording patient encounters, it does not comment on patient-initiated recordings.14
Risk management strategies for gastroenterology providers
So, how can gastroenterologists and other providers protect themselves in a world of covert recording, while also preserving their relationships with patients and optimizing medical care? First, despite their harried days and varied responsibilities, gastroenterologists must recognize the possibility of covert recording and seek to maintain professionalism in all clinical environments, whether in an examination room or in an endoscopy suite with a sedated patient. Physicians set the tone for the entire team and also have an obligation to intervene if other members of the medical team are not adhering to professional standards. Although physicians and other medical providers often use cynical and derogatory humor as a coping mechanism given the heavy workload and amplified stressors of the clinical environment, it is important to be mindful of how such comments are perceived by patient bystanders.15,16 Although achieving a robust therapeutic alliance with a patient can take months, this trust can be easily broken by a single flippant remark by the physician.
Second, rather than assuming a defensive posture driven by fear of medical liability, it is vital for gastroenterologists to directly confront situations in which covert recording is suspected while also preserving the physician-patient relationship. In fact, by openly encouraging patient recording as a matter of routine practice, gastroenterologists can promote an environment of trust and transparency and bolster the therapeutic alliance between patient and provider.15 This approach also encourages providers to hone their communication skills and ensure they are communicating essential medical information clearly and succinctly and conveying medical nuance where appropriate. For example, in a clinic setting, a patient with inflammatory bowel disease who records might better remember or understand the risks and benefits of various treatment strategies and the common side effects of medications such as azathioprine and biologics. Patients recording medical encounters in the endoscopy suite might better recall postprocedure instructions, including recommended follow-up intervals and risks of postendoscopy complications. In this era of shared decision-making and patient-centered care, optimizing both physician delivery and patient understanding and recall of essential medical information is of critical importance.
Finally, although adoption of the above practices would serve the dual goals of enhancing patient-provider communication and mitigating legal risk, certain system interventions may further minimize the risk of covert recording. For instance, endoscopy units can store patients’ personal effects, including electronic devices, in a locker outside the endoscopy room rather than on the gurney. Retrieving patient belongings before postprocedure instructions are delivered would protect the patient’s ability to record this advice for future recall.
Conclusions
Recording by patients of clinical encounters, whether covert or overt, has become increasingly common as a result of the digital revolution. These recordings most often represent an attempt by the patient to gain more information relevant to their medical care. Rather than being threatened by this new reality, gastroenterologists should consider embracing this practice as an opportunity to enhance effective communication with patients, encourage shared decision making, and deliver truly patient-centered care.
Acknowledgments
This article is intended as general commentary and should not be interpreted as legal advice applicable to individual circumstances. Do not act or rely on information contained in this article without first seeking the advice of a personal attorney.
References
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5. 18 U.S.C. §2511(2)(d).
6. VA Code §19.2-62.
7. Cal. Penal Code §632.
8. Fla. Stat. Ann. §934.03(3)(d).
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12. Wisconsin Assembly Bill 255. (2015). Available at: https://docs.legis.wisconsin.gov/2015/proposals/ab255. Accessed June 29, 2016.
13. National Institute for Health and Clinical Excellence. (2012 Feb). Patient experience in adult NHS services: improving the experience of care for people using adult NHS service. Available at: https://www.nice.org.uk/guidance/cg138/chapter/1-guidance. Accessed June 29, 2016.
14. American Medical Association Code of Medical Ethics, Opinion 5.045 - Filming Patients in Health Care Settings. Updated June 2006. Available at: http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion5045.page? Accessed June 29, 2016.
15. Aultman, J.M. When humor in the hospital is no laughing matter. J Clin Ethics. 2009;20:227-35.
15. Sobel, R.K. Does laughter make good medicine? N Engl J Med. 2006;354:1114-5.
Dr. Adams is a clinical lecturer in the division of gastroenterology, University of Michigan, Ann Arbor, an investigator with the VA Center for Clinical Management Research, a staff physician in the VA Ann Arbor Healthcare System, and a member of the Institute for Healthcare Policy and Innovation, Ann Arbor. She has no conflicts of interest.
