As a patient, can you secretly use your smart phone or other recording device to record a conversation on the phone or in person that you have with a doctor? Is it ethical and/or legal to record a conversation of this nature without advising the doctor in advance? If you requested permission to record the conversation with a doctor, would he or she likely consent?
The above issue and questions have taken on increased interest and relevance in the age of digital recording devices and smart phones. In Ohio, a patient is permitted to record a conversation with a doctor without getting the consent of the doctor as long as the patient is a party to the conversation. See: Smith v. Cleveland Clinic Foundation, et al. 2011-Ohio-6648 (Cuyahoga Cty. 2011). The use of an unconsented recording made by an attorney of a conversation that he/she participates in with a third party, has been questioned and, in fact, is prohibited by the Rules of Professional Conduct absent consent by the third party.
While advising the doctor that you or your loved one wishes to record the conversation so as to recall all information provided during an office visit is commendable, most doctors feel threatened by such conduct. Many doctors are concerned about the potential use of the recorded conversation in the context of future litigation. There are a handful of doctors, however, that recognize the benefit of a patient recording a conversation so long as both parties are honest with each other and are not recording the conversation with an ulterior motive.
A recent study by the American Medical Association has acknowledged that certain doctors endorse recorded conversations between a patient and a physician for a number of reasons. One obvious reason is that we all have a tendency of forgetting much of what is said verbally shortly after, if not before, an office visit has concluded. We have been taught that hearing something said requires reinforcement – whether it is written or recorded. A number of doctors believe that allowing a patient or a patient’s advocate to record advice given by the doctor in response to questions, will lead to better patient compliance and understanding. The same group of doctors also recognizes that if a patient or his/her advocate records advice given by the doctor, the lines of communication between the patient and the physician will improve. Many patients complain that doctors do not explain enough or take enough time to explain. By recording a conversation, such concerns can be reduced or eliminated.
There are patients that have attempted to videotape deliveries and other medical exams. This attempt has been met with the same resistance, primarily for fear of the use of same in any potential litigation. If both sides are open and honest and are not contemplating or planning litigation, or so fearful of the risk of litigation, a question and answer session on critical medical conditions that can affect the patient or his/her loved one, has merit. Whether both sides can get past the anxiety and mistrust that has developed in doctor/patient relationships, the use of honest, candid and sincere recordings can only benefit both sides in keeping patients safe and knowledgeable and in reducing unnecessary physician time in reviewing instructions, recommendations, orders and consultations.
Recently in Smith, a case was decided that dealt exactly with this particular issue. In the case, the family of a decedent recorded (without permission or knowledge of the physician) a conversation that they had after their loved one passed away in an effort to determine the cause of death. The conversation was recorded and contained statements by the doctor with regard to the cause of death. Fast forwarding the conversation down the road, a lawsuit was filed surrounding the death and the family attempted to use the recorded conversation as evidence in the litigation. The defense argued that the conversation was privileged and, thus, protected from disclosure pursuant to the Ohio Revised Code that protects peer review conversations. They also argued that the conversation was secured without the consent or knowledge of the physician and, therefore, was illegally obtained and, thus, should not be used, nor should the physician in question be subject to deposition. The court ruled in the family’s favor finding that the conversation was not protected as peer review; and that so long as the family was a participant in the conversation and the recording passed other evidentiary requirements for its use and admissibility, that the conversation could be used and that the doctor would not be prohibited from testifying based upon this conversation.
At Mishkind Kulwicki Law, we attempt to give our clients and others the best possible advice as to how to conduct themselves in an ethical, professional and safe manner when attending to their healthcare needs and obtaining answers to their questions. We never encourage such recordings as described in this blog, but recognize that there are circumstances where an upfront disclosure by both parties of the desire to record the conversation so as to recall the advice given at the time, has merit. We also recognize that there will be families that will record such conversations without advising the doctor of same and we certainly hope that such recordings are done in good faith and with the intent of being able to recall the details of the doctor’s advice so as to follow through on the recommendations for their own safety and well-being. For further information on this topic, see the AMA Guidelines, the Ohio Revised Code 2933.52 and the case cited above; or contact us if you would like to discuss this matter further.