When Patients Hit Record in the Healthcare Setting
As technology advances, more patients might record their visits with or without your knowledge. Your first reaction may be to prohibit patients from recording any visit, but there is supporting evidence that recording a visit can be beneficial for recall and compliance. Since this is a growing issue, develop a policy on video/audio recording in the healthcare setting. This tip will help you identify your state laws regarding consent requirements and things to consider when developing a plan.
State Laws
Know your state laws and requirements. Maine only requires one person to consent, and Vermont does not address it. Massachusetts and New Hampshire require all persons' consent before recording.
Maine
Maine law does not prohibit recording a conversation since only one consent is necessary, and it can be either the sender or receiver. https://legislature.maine.gov/lawlibrary/what-is-maines-law-on-recording-surveillance-of-private-conversations/9488
Massachusetts
Massachusetts law provides that it is illegal to record an in-person or telephone communication without the consent of all parties. https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section99
New Hampshire
New Hampshire law provides that it is illegal to record an in-person or telephone conversation without the consent of all parties § 570-A: 2. However, New Hampshire law does make an exception in cases where the person or people communicating are doing so in an environment where they should not be under the expectation of privacy. N.H. Rev. Stat. Ann. § 570-A: 1. http://www.gencourt.state.nh.us/rsa/html/lviii/570-a/570-a-mrg.htm
Vermont
Vermont law does not contain any provisions regarding the legality of recording or sharing any audio-based conversations.
Policy
When developing a policy on audio and visual recordings, you should ask the following questions:
Will patients ever be allowed to record a visit?
Yes
- Under what circumstances?
- Will individual providers be permitted to opt out of being recorded?
- Specify that the patient's device will be used.
- When will a provider mandate that recording stops, such as in OB, and the delivery is not going as planned?
- How should patients notify the provider that they wish to record the visit?
- Where can the recording take place?
- How will you protect another patient's privacy?
- Is signage posted that specifies all of the above?
No
- How will this be communicated to patients (e.g., signage)?
- What if a provider wants to allow recording anyway?
- What will you do if you find a patient covertly making a recording?
- What will you do if you find a recording (known or unknown to you) posted on social media (Facebook, YouTube)?
- Who is responsible for enforcing all of the above?
Having a plan and sharing it with your staff will help you address this vital, growing issue. Below are some additional articles and resources for your reference.
Resources:
Adler, E. (2018).When patients hit 'record' at the doctor's office. Physicians Practice. Retrieved from: https://www.physicianspractice.com/physician-productivity/when-patients-hit-record-doctors-office
n.a. (2018). Ask ECRI: Patient Recordings in a Physician's Office. ECRI. Retrieved from:https://www.ecri.org/components/PPRM/Pages/AskECRI041118.aspx
O'Hara, N., Walkergp, L., & Singh, K. (2017). Setting the record straight: patient recordings of consultations. Clinical medicine (London, England), 17(2), 188. Retrieved from: https://doi.org/10.7861/clinmedicine.17-2-188.
Saleh, N. (2020). Secretly Recording Your Doctor's Appointments - Secret recording is increasingly common and many times legal. Verywell health. Retrieved from: https://www.verywellhealth.com/secretly-recording-your-doctors-appointments-4145786
Sigman, L. (2019). State, federal laws govern whether doctor visits can be recorded. American Academy of Pediatrics. Retrieved from: https://www.aappublications.org/news/2019/04/30/law043019
Tan, S. (2018) Patients who record office visits- MDedge Neurology. Retrieved from Clinical Neurology News: https://www.mdedge.com/clinicalneurologynews/article/165736/business-medicine/patients-who-record-office-visits
Wilson Pecci, A. (2017). JAMA Viewpoint: Time to Embrace Patient Recordings in Healthcare. Health Leaders. Retrieved from: https://www.healthleadersmedia.com/clinical-care/jama-viewpoint-time-embrace-patient-recordings-healthcare
Medical Mutual Insurance Company of Maine's "Practice Tips" are offered as reference information only and are not intended to establish practice standards or serve as legal advice. MMIC recommends you obtain a legal opinion from a qualified attorney for any specific application to your practice.