When Patients Audio Record Without Your Consent

January 26, 2010 in Medical Legal by RangelMD

Small portable audio recorders have been around for a while but in 2009 Apple released the iPhone OS 3.0 that included the Voice Memo application. This does a decent job of recording ambient noise and nearby noises such as normal tone conversations up to 30 mins at a clip. This set up is even better than a small recorder since being a phone, it can be on and recording everything you say without drawing untoward attention to itself. This actually happened to a physician who posted the encounter on Sermo.com (registration required).

I see the patient and her daughter is waiting for me to come, hovering outside her room. We go in together and begin discussing concerns regarding discharge . . About 15 minutes in to the conversation, I glance down at the phone the daughter is holding in her hand at the bedside and notice it’s a recording app on her iPhone. And there’s a little ‘metering bar’ that’s moving as I talk – it’s actively recording the conversation. I had no idea I was being recorded.

Was it legal for the patient’s daughter to record the conversation without the doc’s consent? The general consensus among non-lawyers appears to be “no” but in reality it is illegal to record a conversation without the consent of all parties in only 12 states (California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington). These are referred to as “all-party” statutes.

Every other state is more concerned about the possibility of a third party eavesdropping and recording a private conversation and so only require the consent of one of the involved parties. Essentially these “one-party” statutes allow anyone to secretly record a private conversation without requiring the consent of anyone else as long as the recorder is one of those involved in the conversation. The same goes for Federal law but this usually applies only to electronic conversations or conversations where one party is standing in one state and the other party is standing in another (presumably within talking distance).

However, if the patient’s daughter was unlucky enough to be in one of the states with an “all-party” statute, she could potentially face criminal charges including felony charges for recording without consent. She could also be held civilly liable depending on the state. But in fairness,  her intent is likely to have been much more benign. She could have been recording a conversation with a doctor for future reference. It’s more difficult than we think for patients and family members to remember everything a doctor tells them. Some attempt to write down as much as they can and this is not illegal in any sense. Audio recording is much easier.

And the medical-legal risk is likely way overblown. The usefulness of an audio recording for the plaintiff in litigation is not automatic and may be a source of more headaches and delays for the plaintiff than simply relying on the medical record. Unlike medical records which are not usually challenged for their authenticity, an audio recording made without full consent and informally is not an official record. It must go through several processes to satisfy the court to be allowed in as evidence including; authentication and correctness of the recording, preservation of the recording to the reasonable satisfaction that there has been no tampering, identification of the speakers (may be difficult if the quality or volume is poor), and proof that the chain of custody has been preserved.

The defense can contest each step before a recording is deemed as admissible but from a practical standpoint recordings are most valuable only when no other record exists. The medical record is the official document of such conversations or patient/family encounters and should not differ significantly from the actual conversation. I.e. as a matter of legal practicality, never have a conversation with a patient/family that you would not be willing to repeat in court and/or put down on the medical record.

This leaves two possibilities in which the medical record and the audio evidence would differ. 1). An error or omission was made in the conversation but corrected in the medical record.  In this case the record should hold more weight especially if it can be shown that successive medical decisions were made based on this correct documentation. I.e. lawsuits are over outcomes and not mistaken conversations. 2). An error or omission was made in the chart but the correct decision or information was stated in the conversation. Ironically, the recording might help the defense if anything though this is doubtful.

The take home points are that in most states it is legal to record a conversation with only the consent of one party but that these recordings are more than likely to be used for personal reference rather than as the key piece of evidence in court that makes or breaks a case. Still, it is your right to refuse a case or to end a doctor-patient relationship (as long as the proper procedures are followed)  over behavior that makes you feel uncomfortable or that poisons the relationship such as if the family or patient tells you that they record all doctor conversations in case they need to use them in court.

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