Since the late 1970s, physicians have experimented with providing patients, especially cancer patients, with audio recordings of consultations. Advocates claim patients gain a clearer understanding of treatment options, engage more actively in treatment decisions, and more readily and reliably discuss their diagnoses and treatments with family members. Problems include the disruption occasioned by explaining the presence of a recording device, consent requirements, and technical difficulties, especially when the recording technology was more primitive than it is today.
In an analysis of 33 English-language papers selected from 5492 abstracts found in peer-reviewed literature in seven literature databases, investigators determined that between 53.6% and 100% (72% weighted average) of patients listened to recorded consultations. In 60% of reviewed studies, patients shared the audio-recordings with others. Seventy-nine percent (79%) of studies reported positive patient perceptions (e.g., a recording helped in adjusting emotionally and psychologically to their illnesses). Several papers suggested particular benefits for patients with lower SES, older age, impaired abilities (deafness, e.g.), or among those receiving bad news. One paper reported that patients were favorably impressed that physicians were willing to go on the record. Another estimated that an additional 62 calls every six months were averted because 88% of patients were able to find answers to their questions in an audio-recording, without which they otherwise would have called the office. To the limited extent the issue was explored, younger specialist physicians tended to be more enthused about this approach than older generalists.
According to the authors, medico-legal aspects were not sufficiently investigated. They wrote:
“A surprising finding has been the representativeness of the countries where research has been conducted. The UK and US are on the highest and lowest end of the spectrum, with 44% and 9% of the studies conducted in these countries respectively. This may be an indirect indicator of the fear of litigation and other cultural differences facilitating or hindering the research and adoption of the practice.”
Maka Tsulukidze, Marie-Anne Durand, Paul J. Barr, Thomas Mead and Glyn Elwyn, “Providing recording of clinical consultation to patients – A highly valued but underutilized intervention: A scoping review,” 95 (3) Patient Education and Counseling 297-304 (2014).
The benefits of recording are not surprising. Human memory has its limits, especially when complex factual information is provided in the charged emotional atmosphere inherent in learning of a potentially fatal diagnosis such as cancer. A record to be referred to later could be a valuable adjunct to even the most thoughtful and careful presentation of clinical insights and recommendations. As the authors acknowledge, however, the value of this approach has been tested so far almost solely in oncology; its usefulness in other disciplines remains to be evaluated.
Then too, the threat to privacy arising from recordings is substantial. It does not take John Le Carré’s imagination to conceive of circumstances in which the privacy of confidential information could be compromised when its record is not just a writing created during and/or after the fact, but a real time electronic record capturing all that occurred. The extent of the privacy invasion could readily exceed that which is possible, even at the hands of the most skilled hacker, without a recording.
The biggest unknown is the effect this practice could have on professional liability claims. It has long been the received wisdom that careful documentation is critical to the defense of claims. Many the case that has gone south because the charting was less than ideal. But more documentation is not the same as better documentation. Experience teaches that, in a subset of cases, a record that admits of a degree of ambiguity is not always a negative. When two participants to a discussion have conflicting memories of its details, our system empowers the jury to decide which is the more credible. When an audio, or even more especially an audio-video recording of that discussion is available, the jury’s leeway is curtailed. No doubt in some cases that will help. In others, perhaps, not so much. Professionals should think long and hard before agreeing to recordings; they might be well advised to confer with their carriers on the question or to seek advice of counsel.