In the majority of jurisdictions, recordings are legal if consented to by one of the parties. This means that recordings by the patient with/without consent from or with/without knowledge of the doctor are fully legitimate. It also means that the recordings will be admissible into evidence in a courtroom, unless the information is privileged (protected from discovery) or is otherwise irrelevant or unreliable.
On the other hand, in states requiring all-party consent, such recordings are illegal absent across-the-board consent, and they will be inadmissible into evidence. This cardinal difference in state law raises vital implications for both plaintiff and defendant in litigation, because the recordings may contain incriminating or exculpatory information.
Recordings of conversations in the doctor’s office are by no means rare. A survey in the United Kingdom revealed that 15% of the public had secretly recorded a clinic visit, and 11% were aware of someone else doing the same.5 The concerned physician could proactively prohibit all office recordings by posting a “no recording” sign in the waiting room in the name of confidentiality and privacy. And should a physician discover that a patient is covertly recording, risk managers have suggested terminating the visit with a warning that a repeat attempt will result in discharge.
Like it or not, recordings are here to stay, and the omnipresence of modern communications devices such as smartphones, tablets, etc., is likely to increase the prevalence of recordings. A practical approach for practicing physicians is to familiarize themselves with the law in the individual state in which they practice and to improve their communication skills irrespective of whether or not there is a recording.
They may wish to consider the view attributed to Richard Boothman, JD, chief risk officer at the University of Michigan Health System: “Recording should cause any caregiver to mind their professionalism and be disciplined in their remarks to their patients. … I believe it can be a very powerful tool to cement the patient/physician relationship and the patient’s understanding of the clinical messages and information. Physicians are significantly benefited by an informed patient.”6