Approach to covert recording by patients of encounters with gastroenterology providers

Legal guidance: “One-party” versus “all-party” consent

Although the prospect of covert patient recording may be unsettling to physicians, is it illegal? Because of a paucity of legal precedent in this area, the legal landscape is rather murky. Through the provisions of the Electronic Communications Privacy Act, federal law prohibits the interception and disclosure of wire, oral, or electronic communications without specific consent of at least one party to the conversation.⁵ This so-called “one-party” consent standard affords a baseline level of legal protection. A handful of states offer additional protection under state law by requiring all parties to the conversation to consent to the recording (so-called “all-party” consent). Virginia, where the audio recording of the previously mentioned colonoscopy took place, is a “one-party” consent state.⁶ In contrast, states such as California and Florida have adopted an “all-party” consent rule.^7,8

However, uncertainty remains. For instance, if medical providers have a conversation in the same room as a sedated patient during a medical procedure on that patient, is the patient a “party” to the conversation? Furthermore, can such a conversation be considered private when held in front of a patient during a medical procedure? Is the patient in such a scenario “eavesdropping”? Given a lack of legal precedent in the form of case law and given the unique features of each clinical scenario, this is likely to remain an area of significant legal ambiguity. Although the possibility of covert patient recording may be unnerving for providers, the reality is that, in most cases, it is likely legally permissible.
 

Ethical principles: Navigating an evolving physician-patient relationship

The relationship between physician and patient, a core aspect of medical ethics, has evolved markedly over time. This relationship was historically paternalistic: The patient was seen to be dependent on the physician’s professional authority in determining the appropriateness of care, and patient’s preferences were seen as secondary to physician judgment. In recent years, however, the physician-patient relationship has evolved toward one privileging patient-centered care and shared decision-making based on a patient’s unique values, beliefs, and preferences.^9,10

Concomitantly, the public’s view of doctoring has transitioned from “unquestioning acceptance of physician authority to a more ‘consumerist’ view accompanied by a questioning and bargaining approach to medicine, physicians and the medical encounter,” according to a 2001 study published in the Journal of Health and Social Behavior.¹¹ In this context, many patients, attorneys, bioethicists, and patient advocates see patient recording of medical encounters as a legitimate check on the health care system, ensuring transparency and honesty and empowering patients to become more active participants in their medical care.²
 

Policy responses

Although recognition of patient recording of medical encounters has been growing, there have been few direct policy responses to date. One notable example was an effort by Wisconsin legislators in 2015 to mandate that any place where surgery is performed (including hospitals, ambulatory surgical centers, and other sites) offer patients the option to have their procedure videotaped and audiotaped.¹² The proposed legislation was written broadly enough to include locations where gastroenterologists perform routine endoscopic procedures under sedation. Recordings would have been treated as part of the patient’s health care record and been admissible as evidence in subsequent legal proceedings relating to the medical care provided. Although this bill ultimately failed to pass pursuant to a Joint Resolution in the Wisconsin Senate in April 2016, it is a poignant example of the possible policy actions that may govern this area in the future.

In 2012, the National Institute for Health and Clinical Excellence, England, issued a guidance document focused on improving the patient care experience, which recommends that clinicians routinely ask patients if they would like to take notes and/or record the clinical encounter.¹³ Although not explicitly referencing covert recording, this guidance effectively aims to promote increased transparency by openly encouraging recording as a component of optimal medical practice. Although the American Medical Association Code of Ethics offers guidance regarding physicians recording patient encounters, it does not comment on patient-initiated recordings.¹⁴

Risk management strategies for gastroenterology providers

So, how can gastroenterologists and other providers protect themselves in a world of covert recording, while also preserving their relationships with patients and optimizing medical care? First, despite their harried days and varied responsibilities, gastroenterologists must recognize the possibility of covert recording and seek to maintain professionalism in all clinical environments, whether in an examination room or in an endoscopy suite with a sedated patient. Physicians set the tone for the entire team and also have an obligation to intervene if other members of the medical team are not adhering to professional standards. Although physicians and other medical providers often use cynical and derogatory humor as a coping mechanism given the heavy workload and amplified stressors of the clinical environment, it is important to be mindful of how such comments are perceived by patient bystanders.^15,16 Although achieving a robust therapeutic alliance with a patient can take months, this trust can be easily broken by a single flippant remark by the physician.