A 2015 paper examined patients’ covert and overt recordings of doctor visits. From a survey of a small sample (168 respondents) of well-educated British patients, the authors determined that:
“19 (15%) respondents indicated having secretly recorded a clinical encounter and 14 (11%) were aware of someone who had secretly recorded a clinical encounter. 45 (35%) said they would consider recording secretly and 44 (34%) said they would record after asking permission. Totally, 69% of respondents indicated their desire to record clinical encounters, split equally between wanting to do so covertly or with permission.”
Elwyn, G., Barr, P.J., Grande, S.W., “Patients recording clinical encounters: a path to empowerment? Assessment by mixed methods,” 5 BMJ Open e008566 ( 2015), http://bmjopen.bmj.com/content/5/8/e008566.
A literature review determined that patients favored recordings for their ability to enhance information recall and understanding. Tsulukidze, M.,et al., “Providing recording of clinical consultation to patients – a highly valued but underutilized intervention: a scoping review,” 95(3) Patient Educ. Couns. 297-304 (2014), https://www.ncbi.nlm.nih.gov/pubmed/24630697.
On the basis of unpublished data, one group reported that at Phoenix’s Barrow Neurological Institute, “where patients are routinely offered video recordings of their visits, clinicians who participate in these recordings receive a 10% reduction in the cost of their medical defense and $1 million extra liability coverage.” Elwyn, G., et al., “Can Patients Make Recordings of Medical Encounters? What Does the Law Say?” JAMA online (July 10, 2017), http://jamanetwork.com/journals/jama/fullarticle/2643728 (offering a useful 50-state summary of applicable law).
From a roughly contemporaneous qualitative analyses of online posts, articles, blogs, and forums (texts), however, Tsulukidze, et al. reported that covert recordings eroded trust, among other effects. Tsulukidze M., et al. “Patients covertly recording clinical encounters: threat or opportunity? A qualitative analysis of online texts,” 10(5) PLoS One e0125824 (2015), https://www.ncbi.nlm.nih.gov/pubmed/25933002. Given the value of the doctor-patient relationship in the therapeutic effort, a relationship under pressure today as never before, practices that corrode it should generate skepticism.
Now that smart phones are virtually ubiquitous, recording words and even images is easier than ever. One need not be skilled in the technology, nor does one need bulky or expensive equipment, to create a record that is accurate, easy to understand, easy to transmit, and more-or-less immortal.
The information a patient must absorb in an office visit can be substantial, even overwhelming. If it is offered after disclosure of emotionally distressing news, as of course is not uncommon, conditions for retaining it may be sub-optimal. It is not hard to grasp why the patient might want to have a record of what was said so that he can review it and further digest it later. Patients may also expand their support systems by sharing such information with family and friends.
The reported premium discount notwithstanding, however, this practice poses a real threat of enhanced liability exposure. In a “bad baby” case I defended years ago, the infant was born with meconium staining, which can be associated with fetal distress. The child was eventually diagnosed with cerebral palsy, and despite excellent scientific evidence refuting their theory, the parents brought a claim alleging that the failure to intervene timely to alleviate fetal distress caused the CP. The defense was not aided by a video the father of the baby had created in the delivery room in which, on seeing the meconium, the attending OB is clearly heard to utter an expletive that, plaintiffs argued, demonstrated that he had not anticipated this situation because he had failed to diagnose the baby’s distress.
Then too, technological progress has made patient privacy progressively harder to protect. It is difficult to imagine that creating additional, electronic records of visits will solve, ameliorate, or in fact fail to aggravate this problem. Moreover, it is questionable whether a patient who knows he is being recorded will be as candid about sensitive health matters, including sexual and substance abuse behaviors, for example, as ideally he should be in aid of diagnosis and therefore treatment.
The evidence seems to suggest that, with permission or not, patients are recording clinical encounters in rather surprising numbers. The likelihood is that this trend may continue, and perhaps accelerate. If further research confirms that real clinical benefit can be derived from this practice, the best solution may be to require the patient to seek permission first, so that the clinician is aware of the patient’s intent, and to exclude from evidence any recording to which the doctor has not agreed. This way, the benefits claimed for this practice can be realized, without further eroding the doctor-patient relationship or creating a trap for the unwary professional.