Recording Office Visits and Procedures: Pros and Cons for Healthcare Professionals

“May I record our conversation today?”

Have you ever heard that question from a patient or a patient’s family member? Or have you ever been worried that a person on the premises might record the visit without asking permission? Smartphones, which are now ubiquitous, give patients a video and audio recorder that is always conveniently at hand. Prohibiting the use of these devices in the office or facility setting is becoming increasingly difficult.

A high-profile case in the news involved a patient who accidentally recorded his colonoscopy, inadvertently capturing derogatory remarks from the anesthesiologist while he was under anesthesia. The patient sued for malpractice and was awarded $500,000. While this case was extreme, it highlights the importance of addressing issues before problems emerge. A misunderstanding involving the use of electronic recordings may not only impair the clinical relationship, but it may also generate unanticipated consequences—including complaints to the state licensing board, regulatory agencies, and accrediting bodies, investigations by third-party payers and state oversight representatives, and unfavorable social media postings. Proactively implementing clear written protocols and best practices to address common scenarios can help practitioners avoid misunderstandings, reputational damage, and potential liability.

Patients: To Record or Not to Record?

Allowing patients to record their appointments requires balancing potential privacy and liability risks with the prospective benefits of enhanced patient recollection of instructions, more complete treatment adherence, and improved clinical results. Patient pamphlets and other educational materials distributed during office visits are often lost or forgotten, and individuals frequently forget or do not accurately remember a significant portion of information shared during healthcare visits. Patients who understand their condition, the treatment plan, and the rationale for provided instructions are more likely to be actively engaged in their care and achieve optimum results.

Despite potential benefits, allowing visitors or patients to record any interactions is generally ill advised. Digital surveillance devices can be disruptive and potentially intimidating to the practitioner and staff. In addition, patient recordings—unlike the EHR—can be easily altered or manipulated to create an inaccurate portrayal of what actually occurred. Audio files can be readily streamed or posted online, raising potential compliance risks with federal and state patient privacy laws that also protect caregivers, other patients, staff, vendors, and anyone else on the premises for legitimate business purposes. In addition, recording a visit may inhibit the critical flow of vital information between the practitioner and patient. In those circumstances, individuals may be less inclined to discuss sensitive health issues for fear that an outside party might hear the private conversation later.

Recording a visit without the practitioner’s permission may result in a loss of trust—the critical basis of a strong practitioner-patient relationship. Only about a dozen states nationwide, however, prohibit electronic recordings made without the explicit consent of all participants. Most jurisdictions allow recordings with the consent of only one party, which means that a person may claim to have a legal right to memorialize the conversation regardless of whether the practitioner agrees. It is important to know the specific laws concerning recordings in the venue where you practice. Regardless, it is recommended that patients be clearly advised that digital recordings made with handheld devices such as smartphones are prohibited on the premises in order to protect the privacy of other patients and staff in compliance with federal and state privacy statutes.

Post a notice prominently on your practice website and in the signage near your office reception window. Include language in the Conditions of Treatment Agreement signed by the patient at the outset of the relationship. (Find additional information on this topic in our article, “Proactively Manage Patient Expectations With a Conditions of Treatment Agreement.”

Address any suspected violations immediately in a professional and courteous manner. If the policy is violated, have an office administrator (not the practitioner) meet with the patient or other violator in a confidential setting to discuss the issue and reiterate the existing practice policy. Depending on the circumstances and the status of the patient’s current episode of care, advise the individual that further infractions may result in dismissal from the practice. A follow-up letter to the person detailing the event may help avoid any future misunderstanding. File the correspondence in the patient’s record. Read about possible next steps in our article, “Patient Relations: Anticipate and Address Challenging Situations.”

Encourage anyone who asks to record a visit to take notes instead or have a trusted family member or friend attend the appointment to help take notes, remember vital information, and ask questions. Encourage individuals to routinely review clinical entries in the patient portal and to be engaged in the conversation with “Ask Me 3,” the Institute for Healthcare Improvement’s program that promotes clear communication through these three questions:

1. What is my main problem?
2. What do I need to do?
3. Why is it important for me to do this?

Ask patients to repeat back the information shared, and then immediately correct any misunderstandings.

Practitioner Recording of Appointments or Procedures

Practices and surgical centers must also decide whether to video-record clinic visits or operative procedures. Office practices may want to record patient encounters to document when the informed consent occurred and the nature and scope of the conversation. Surgical centers may want to record surgeries for educational purposes.

It is important to note that this additional documentation will become a part of the record and can be subsequently accessed by government agencies responsible for healthcare oversight, such as state licensing boards, CMS, and the Office of the Inspector General for the U.S. Department of Health and Human Services, among others. Law enforcement will also be able to secure a copy with a search warrant or other court order. A patient may also obtain the recording with a valid HIPAA-compliant authorization or during the discovery process if a professional liability claim is initiated.

If a practice or healthcare facility is contemplating making audio or video recordings, consider the following strategies:

• Create a written policy detailing under what circumstances a digital recording—whether audio, video, or both—may be made.
• Indicate in the policy how the digital recording will be stored, by whom, where it will be retained, and how long it will be kept.
• Reference in the policy the manner in which the digital document will be destroyed, consistent with federal and state privacy laws.
• Advise patients in advance that a digital recording is being considered. The patient should sign a written release that explains the reasons for the recording. As with all consent forms, the signed authorization should become part of the permanent record.
• Ensure that the recording policies are being followed and that a designated administrator conducts a periodic review to evaluate the effectiveness of the protocols and ensure that the policies are consistently followed and updated as necessary to conform to the prevailing community standard.

Adopting and following these strategies helps to protect the practice or facility in the event of a subsequent inquiry about the validity and completeness of the patient’s record. For additional guidance and assistance, contact the Department of Patient Safety and Risk Management at (800) 421-2368 or by email.