Last Updated: 25 August 2019
Can Patients Record You?
While there are conflicting viewpoints on the issue of patients recording of clinical encounters, today’s article will explore the topic from a medicolegal liability perspective.
The laws on recording and one or two party consent vary by state, but you likely live in one where patients can secretly record you.
Like our own discussion of risks, benefits, and alternatives of treatment options with patients, this too is a nuanced topic with many valid perspectives. Here’s one.
Smile! You’re on Candid Camera
Most younger PAs (and other clinicians) don’t remember Candid Camera, a very popular and long-running “hidden camera” reality TV series which ran from 1948 to 2014. The theme of this comedy show was to “put unsuspecting people on the spot.” Every episode ended with a reference to the show’s slogan: “Smile, you’re on Candid Camera!”
A year before the television series began, the creator/producer had a radio program called “The Candid Microphone.” Both shows had the same goal: to catch a person making a ridiculous statement or to actually film a situation where someone was being set up to look foolish.
But how, you may ask, does this relate to the practice of medicine in the 21st century? Read on….
HIPAA Privacy Regulations
A couple of weeks ago I read an article about people at a gym who chose to have themselves filmed doing their exercises, for the purpose of documenting and improving their technique. However, many gyms will not permit the use of videotaping during workouts because it infringes on the privacy of other patrons.
This is similar to HIPAA laws that are in place to protect the patient. Sweaty bodies in awkward positions wearing certain types of clothing is a very private matter to most people and few would like uninvited community members to observe this ritual. And audiotaping supposed “private conversations” in this context is another infringement on the rights of unsuspecting members of the conversation.
I pose this question: Why do patients and people in the street seem to have broader rights than we healthcare professionals?
After many years in private practice and emergency medicine, I have taken note of the egos of some professionals. We’re all aware of the stereotypes: plastic surgeons, famous cardiac surgeons, and other high-profile specialties are well known to have a very “high sense-of-self”.
I have seen surgeons outright lie about their experiences and the number of cases they have performed, and heard others embellish their background when asked. Given the human condition, there will always be some individuals who will need to be recognized, lauded and applauded. But this condition can be fatal. In the digital age, you can never know if your comments are being recorded to be used against you.
A few years ago, I was asked by a patient to observe the technique of a PA who had just performed a complex closure on one of their family members.
What I heard was a grandiose provider recounting his long history of repairing lacerations. But what I observed were his poor sterile and infiltration techniques, his poor choice of suture and instrumentation and his lack of effort to explore for a foreign body or a nerve injury. I asked why they had a video of this procedure and their response was that the provider wanted to demonstrate his “superb treatment.”
I have been a plastic surgery PA for over four decades; perhaps my experience and skills may have surpassed his, but I avoided comment on the “superb treatment” I had just witnessed.
So here’s the takeaway: NEVER, never, ever allow a patient or family member to film or record your conversation, your examination, or your treatment. This is your right, so as soon as you see an iPhone, you have the right to ask that it be shut it off as it is against HIPPA laws.
This burdens you with yet one more assessment: having both skill and intuition in spotting this infringement on your privacy. This is a risk management issue that demands our attention.
Professional Liability in the Digital Age
Practices and clinicians have been sued because of promises that were made and recorded and because of what the camera captures. A cell phone being used for these purposes is tantamount to having an attorney sit in on the conversation.
It is essential that a practice has guidelines for these situations and that the patient is aware of office regulations. My goal is simply to highlight this risk management issue. Compliance requires the cooperation of both the staff and the patient. I would advise that you check health law and policy in your own state to understand what situations may or may not be applicable.
What if you are served with a subpoena for a situation involving information I have just discussed?
That is the domain of malpractice insurance, but certain phrases in the policy need to be observed to assure the provider that they have not erred from a practice stipulation. This is where malpractice policies differ and are confusing and, in some cases, inadequate.
The best solution is to have a personal liability insurance policy that specifically names you as the owner and covers your actions.
There is no need to shop around as your national organization endorses the most respected broker with 72 years of protecting healthcare professionals. CM&F’s policy is underwritten by the venerable Medical Protective Company; A.M. Best rated A++ (Superior). In partnership with CM&F, AAPA Insurance Services is continually reviewing the policy language and premiums to ensure that PAs have access to the very best insurance protection in today’s market.