ARE YOU BEING RECORDED?
Last year the Trust Lecture series included a discussion on communicating with patients in the age of smartphones, email and all types of electronic media. As an introduction to the program, we discussed that like it or not, the use of smartphones is growing and patients are expecting to use them and other electronic devices to communicate with providers. But what about situations where the patient is not seeking communication, but rather to use his electronic device to make an audio/video record of the interaction with you? Can they even do that? What are the risks or benefits, and what can you do to protect yourself as a provider?
Can they even do that?
The short answer: Yes. Virginia, like most states, is a “one person consent” state when it comes to recording, meaning it is not illegal to record someone as long as one party to the communication consents, and that “one party” can be the person doing the recording. That means a patient can legally record any communication with his health care provider, regardless of whether the health care provider consents or is even aware the recording is occurring.
But isn’t there a policy to address the issue?
Again, the short answer is: Yes. However, even though there is a Medical Center policy (described below), it does not trump the law, so even though the policy prohibits recording without permission, it is still legal for patients to do so. The consequence of violating the policy will not result in any criminal or civil violation of your rights, but you can report the person to security or Risk Management, who can prevent them from recording further or perhaps remove the person from the premises.
The policy, UVA Medical Center Policy 0030 (Section 11), states:
“Patients, families and visitors to the Medical Center may use Photography [defined to include audio/video recording], provided it does not interfere with patient care, create safety concerns or disrupt business operations . . .” provided that “patients, families and visitors must first have the permission of other individuals (i.e., other patients, family members or [health care providers]) whose images or voices might be included…”
Thus, if you have a patient in the Medical Center, she can record your interactions with one major caveat: she must first obtain permission in order to comply with the policy, otherwise you can report them to security or Risk Management.
The only locations where photography/recording are specifically prohibited are in bathrooms and changing rooms, and during delivery of a child (although they can record the labor process and post partum period).
In support of any decision you make to deny a patient the ability to record you, the Medical Center policy notes further that if they refuse, then you are to contact Hospital Security and Risk Management.
Why Should I Care If A Patient Records?
(1) Privacy Concerns
There are several reasons you may choose to not have patients record interactions with you. The primary concerns are privacy, confidentiality and litigation. Recording devices are quite sensitive, and patients cannot set them to just record one voice or one sound, so they may pick up private comments or information of other patients. Also, not all smartphones are encrypted, and the information recorded on such a device cannot be kept confidential.
Although patient privacy and confidentiality are primary concerns, there is also the risk that information recorded by patients could be used in subsequent litigation.
An illustrative case is from Ohio, Smith v. Community Health Partners, et al., No. CV-744959, Court of Appeals of Ohio, Dec. 22, 2011. The issue before the court was whether the plaintiffs could use a surreptitiously recorded conversation with the Chief Medical Officer (CMO) as evidence in a medical malpractice case. The patient in the case had come to the hospital for elective knee surgery, which had gone well, but he experienced a cardiac arrest on post operative day two and passed away ten days later.
Prior to the patient’s passing, his four children met with the CMO. During the meeting the CMO made sympathetic and apologetic statements and actually admitted fault on the part of the hospital for failing to inform the physicians of a critically high potassium level, which led to the cardiac arrest. Unbeknownst to the CMO, the children recorded the conversation.
After the patient died, his children filed suit against the hospital, and the Court of Appeals of Ohio upheld their right to use the recording in support of their case.
Benefits of Recording?
Of course the ability of patients to record health care providers is not without benefits. Patients who may have difficulty remembering complex instructions, or elderly patients who may want their children to hear what the physician had to say, may all benefit from recording. In these instances you just need to be sure you are aware when you are being recorded so that you can tailor your message appropriately and speak clearly.
There are patient advocacy websites for cancer patients in particular, which recommend that patients actually video-record their physician visits, so that they can review the complex information at another time. (See, e.g., yourdoctorsadvice.org)
Like it or not, the ability of your patients to record some or all of their interactions with you is increasing. There is nothing illegal about the patient recording you, and simply violation of a hospital policy is not going to necessarily keep a recording out of evidence should litigation ever ensue. Given these unknowns, the Trust recommends that you do your best to mitigate the risk of harm from surreptitious recordings by:
(1) Educate your patients.
(a) Consider post signs or noting in intake literature that recording without permission is
(b) Tell patients/families that give you reason to suspect they might record you
surreptitiously that you do not wish to be recorded.
(2) Respectfully ask them to cease in order to preserve confidentiality and privacy.
(a) Report persons that do not comply with your request to UVA Risk Management or Security
per Medical Center policy.
(b) Remind patients that even if you do not allow them to record you, they can take notes and
that the medical record, which they can have access to through MyChart, will also reflect
all important information.
(3) Be professional with patients and family members at all times; little jokes, flippancy or
hurrying through information or not addressing questions are always unprofessional, but will be
particularly highlighted when recorded.
Sample Notice to Patient/Family Members:
“Please note that [office name] strictly prohibits any type of electronic recording (audio or video) without express permission. This will help us protect both your privacy and that of other patients as well as maintain confidentiality of sensitive information. Thank you for your understanding and compliance.”
Although it would be polite if they asked, the fact is that with today’s technology, patients can easily record you-whether you are aware of it or not. As described above, under Medical Center policy, patients can only do this with your permission, but if they choose to do so anyway-they are not violating Virginia law, so it is always best to be prudent and aware that recording can be going on at any time.
Please contact the Trust if you have any questions or if we can help in any way, 296-2100.