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Monday, November 23, 2020

Ethical & Legal Considerations of Patients Audio Recording, Videotaping, & Broadcasting Clinical Encounters

Ferguson BD, Angelos P. 
JAMA Surg. 
Published online October 21, 2020. 

Given the increased availability of smartphones and other devices capable of capturing audio and video, it has become increasingly easy for patients to record medical encounters. This behavior can occur overtly, with or without the physician’s express consent, or covertly, without the physician’s knowledge or consent. The following hypothetical cases demonstrate specific scenarios in which physicians have been recorded during patient care.

A patient has come to your clinic seeking a second opinion. She was recently treated for cholangiocarcinoma at another hospital. During her postoperative course, major complications occurred that required a prolonged index admission and several interventional procedures. She is frustrated with the protracted management of her complications. In your review of her records, it becomes evident that her operation may not have been indicated; moreover, it appears that gross disease was left in situ owing to the difficulty of the operation. You eventually recognize that she was never informed of the intraoperative findings and final pathology report. During your conversation, you notice that her husband opens an audio recording app on his phone and places it face up on the desk to document your conversation.


From the Discussion

Each of these cases differs, yet each reflects the general issue of patients recording interactions with their physicians. In the following discussion, we explore a number of ethical and legal considerations raised by such cases and offer suggestions for ways physicians might best navigate these complex situations.

These cases illustrate potentially difficult patient interactions—the first, a delicate conversation involving surgical error; the second, ongoing management of a life-threatening postoperative complication; and the third, a straightforward bedside procedure involving unintended bystanders. When audio or video recording is introduced in clinical encounters, the complexity of these situations can be magnified. It is sometimes challenging to balance a patient’s need to document a physician encounter with the desire for the physician to maintain the patient-physician relationship. Patient autonomy depends on the fidelity with which information is transferred from physician to patient. 

In many cases, patients record encounters to ensure well-informed decision making and therefore to preserve autonomy. In others, patients may have ulterior motives for recording an encounter.