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Pros and cons of letting patients record doctor visits

What should physicians do if patients want to record their discussions?

The Ethics Group provides discussions on questions of ethics and professionalism in medical practice. Readers are encouraged to submit questions and comments to philip.perry@ama-assn.org, or to Ethics Group, AMA, 515 N. State St., Chicago, IL 60654. Opinions in Ethics Forum reflect the views of the authors and do not constitute official policy of the AMA. Posted Nov. 5, 2012.

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Scenario: Here’s a sample request from a patient’s relative: “Dear Doctor, my father always comes back from visits to you empty-handed. When I ask about what transpired, he says, ‘Nothing much.’ He doesn’t want me to accompany him. He accuses me of suspecting early dementia, but I am very concerned that he is forgetting your recommendations. Would you mind if he records your conversation on his smartphone?”

Reply: Is there anything wrong with a patient using his or her phone (or iPad) to record the conversation at a doctor’s visit? Could it be that our patients already are recording their visits without informing us?

Doctors have long grappled with how to convey information and advice to patients. When our recommendations are not followed, we call patients “nonadherent,” failing to appreciate how hard it is for them to absorb the content of the visit. Time is short, visits are rushed, expectations are high and our explanations are not always clear or in plain English.

Information overload and the stress of the doctor’s visit may cause a patient to forget much of what transpired. The problem is amplified when the medical situation is complex or unsettling or the news is bad. The likelihood for miscommunication is further intensified when our patients are challenged — by visual, hearing or cognitive impairment. Low literacy may render written “take-home” materials unhelpful. Finally, distraction due to depression can compound information overload.

Why not take advantage of existing technology by recording the patient-physician encounter? Wouldn’t recording the visit actually improve good communication?

Recording the visit raises several legal and ethical issues. Legally, the parties to the conversation should consent to the recording. The minimum standard set by federal law requires that at least one party to the conversation consent to the taping. Many states set a higher standard, requiring that all parties to the conversation consent to being recorded.

The ethical implications are more far-reaching. I will discuss the risks of such recording or taping first, then turn to the benefits.

Drawbacks of recordings

Recording undermines the privacy of the visit. Knowing that the conversation is recorded might inhibit the free flow of information between the doctor and patient. The patient might be less likely to admit to problems (e.g., a recent fall, getting lost in the car, or a new girlfriend) if he knew that his daughter would be “listening in.” Given that the recording may be shared with family members, should it be of the interview only, or should it include the physical examination?

Could a surreptitious recording be used against the doctor in a malpractice suit? Such suits have been brought — in these cases the admissibility of the evidence turned on the state law regarding secret taping. In this light, general adoption by patients of the practice of recording or taping office visits could exacerbate physicians’ temptation to practice defensive medicine. Or a doctor might wish to stipulate, when consenting to a recording, that it not be used in a lawsuit.

What about mutual trust between doctor and patient? A surreptitious recording would constitute deceit on the part of the patient and undermine trust — a pillar of the physician-patient relationship. In the ideal case, privacy and confidentiality foster an atmosphere of trust and open disclosure, leading to the revelation of all facts that might bear on the diagnosis. When the patient deceives the doctor, suspicion is cast on all the information the patient has provided.

Confidentiality of the recording raises thorny issues. How protected is access to the recording? Could it be lost by the patient or doctor, or inadvertently posted on the Web and “go viral”? Is such a recording part of the medical record? If the answer is yes, should Health Insurance Portability and Accountability Act regulations apply? HIPAA regulations limit the sharing of patient information by physicians and other health care workers, but no such restrictions apply to the voluntary release of information by the patient. Might the doctor’s reputation be damaged by having his or her interviewing and examination skills posted on a public forum by a patient?

Benefits of recordings

On the other hand, recording could be beneficial: Would doctors take more care and time with patients if they knew they were being recorded? This observational effect might contribute to a longer visit, in which the physician took time to answer all the patient’s questions to be sure that he or she was understood.

Complex medical decision-making may be promoted when patients are able to review their doctor’s conversation. If a recording is used to further patient understanding and informed decision-making, it could be highly beneficial to the mutual goals of both doctor and patient. A quick Internet search revealed several patient advocacy websites that urge cancer patients to videotape the doctor’s visit, so that complex information can be reviewed after leaving the office. Using a recording device might free the patient from the tedium of taking notes.

A middle path that could avoid these risks while preserving the benefits might be to record only the beginning and end of the visit, leaving out the physical examination and providing patient and doctor with some privacy to discuss matters that should not be shared. In this case, the patient and physician would decide together what is to be recorded. Perhaps the taped record would include only the patient’s discussion of symptoms (to let him or her discover later whether everything was presented to the doctor) and the physician’s summary of instructions, explanations of prescriptions, follow-up appointments and so on.

The new “clinical summary” documents provided to patients through many electronic health record applications include a list of medications, physicians’ recommendations and other summary information. A video or audio recording could complement this excellent new patient tool, especially in cases where a patient’s literacy was limited.

The ease of recording any encounter through technology with smartphones and tablets makes this question pressing and inevitable. Likely as not, these recordings are already taking place more than we realize. Doctors will need to develop policies to limit the distribution of these recordings to protect themselves and to protect the privacy of the patient-physician encounter. On the other hand, recordings offer a fantastic opportunity to improve patients’ adherence and informed decision-making, and these beneficial effects should be applauded.

Katalin Eve Roth, MD, JD, division director, Geriatrics and Palliative Medicine, associate professor, Dept. of Internal Medicine, George Washington School of Medicine and Health Sciences, Washington

The Ethics Group provides discussions on questions of ethics and professionalism in medical practice. Readers are encouraged to submit questions and comments to philip.perry@ama-assn.org, or to Ethics Group, AMA, 515 N. State St., Chicago, IL 60654. Opinions in Ethics Forum reflect the views of the authors and do not constitute official policy of the AMA.

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