Audio and video recordings: What is permissible?
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In an age in which most people have a recording device handy at all times, physicians may wonder what their rights and obligations are with respect to audio and video recordings in their private practices. It is clear that video recording, either by staff or by patients, should generally not be permitted in areas in which patient information may be exposed, but what about within the privacy of the exam room?
California is a “two-party consent” state with respect to audio recordings. This means that in the context of a private conversation, both parties taking part in the conversation must consent to having the conversation recorded.
Alaska, Idaho, and Hawaii are “single-party consent” states with respect to audio recordings. This means that one party participating in a private conversation is permitted to record the other party without the other party’s knowledge or consent. However, physicians may implement an office policy that prohibits audio and video recordings.
Whether you are in a two-party or single-party consent state, you may be unaware that a patient is recording your interactions. Even when the patient is unconscious, their digital ears may be recording. In 2015 a Virginia patient was awarded $500,000 in damages for defamation and infliction of emotional distress due to abusive comments made about him by the anesthesiologist and other care providers while he was undergoing a colonoscopy. The patient was under anesthesia at the time, but his phone was recording.
What is the downside to allowing patients to record an office visit?
From a liability perspective, a recording presents a few issues:
- The recording can be altered to misrepresent what did or did not occur during the exam;
- Unlike a medical record, which represents an objective description of events, a recording is open to subjective interpretation: Will a member of a jury interpret a physician’s tone of voice as irritated, condescending or flippant?
- The ease with which recordings can be made public via social media presents privacy concerns for both doctor and patient.
The primary potential benefit to patients of recording an office visit is assistance in remembering details of the diagnosis and plan of care. However, this can be achieved by other means, such as providing the patient with detailed written instructions and a visit summary.
MIEC Recommends:
- Implement an office policy that states audio and video recordings are prohibited (or limited to designated areas, where appropriate) due to privacy concerns, and include this policy in new patient materials.
- Offer patients detailed written visit summaries, including the plan of care going forward, to minimize any perceived need to record visits.
- If you see a patient recording, politely remind them of the policy and ask them to stop, for the comfort and privacy of all patients.
What about security cameras?
Is it permissible to have a security camera at the entrance of the practice?
The answer is yes, so long as there is no audio recording component. Cameras must be in areas in which patients do not have a reasonable expectation of privacy, such as a changing room, restroom, or the exam room. (Note: video surveillance of employees is subject to different requirements.) Physicians who are covered entities under HIPAA should be aware that a recorded image of a patient is considered protected health information (PHI). Therefore, physicians who use security cameras should incorporate security feed images into their HIPAA Security risk assessment and consider how to best maintain the confidentiality of the information, including who will be able to view security recordings, how recordings will be stored and for how long, and destruction of media housing security recordings.