Recording Conversations with Patients, Other Parties

July 20, 2016

Physicians may want to record their patients or other parties. What should they know before they engage in such practices?

I recently read an article regarding a patient's desire to record a conversation with their physician to make sure they understood the medical instructions.  The patient intended to do so without the physician's knowledge, but in the end decided to take written notes, uncertain about asking for the physician's permission to record. 

It is not uncommon for clients to ask me about recording conversations. Usually the client, however, is not a patient, but a physician.  Why would a physician want to record a conversation?  In my experience it is for a variety of reasons.  In one instance a physician wanted to record negotiations with a hospital administrator since they believed what they were being told behind closed doors did not match written documentation being provided.  In another instance, a patient had threatened a physician who refused to prescribe and hinted at making false accusations against the physician.  Another provider was being offered a kickback and wanted to catch the culprit red-handed.  The most common use of recorded interactions, however, is physicians who believe they are being harassed or verbally abused by colleagues and/or supervisors. 

There are, of course, many other reasons why physicians might consider recording interactions with third parties as it relates to their profession.  However, before you decide to record a conversation there are some legal issues that should be considered.  Recording telephone calls or in-person conversations can be affected by federal and state wiretapping laws.  These laws can expose you to risk of criminal prosecution and also allow for an injured party to have a civil claim for money damages against you.  The main question to consider when deciding whether or not to record a conversation is whether you must obtain consent from another person before recording the conversation.  Generally under federal law, telephone calls and in-person conversations require only the consent of at least one of the parties to the conversation.  If you are not a party to the conversation, this "one party consent" law will only allow you to record the conversation if at least one party to the conversation is aware of it and has consented.

Many states have also adopted a "one-party consent" law and permit individuals to record phone calls and conversations to which they are a party, or where at least one party to the communication consents to the recording.  There are, however, quite a few states that require the consent of every party to a phone call or conversation that is being recorded.  You can find a list of what each state currently allows at www.rcfp.org/reporters-recording-guide/state/state-guide.  Clearly, before engaging in any recording, one should always confirm the law in your state to be certain that it is legally permissible.  Additionally, since laws change from time to time, it is advisable to confirm your understanding each time you decide to engage recording a conversation. It's also important to know that a recoded conversation may not be allowed as evidence some criminal and civil cases.

Knowing that you can be recorded without your knowledge or consent is quite unnerving.  This is true for everyone, and not just physicians.  Many practices I am familiar with have policies that do not allow smartphones into examination rooms or they even provide a space for patients to safely lock their possessions. While these policies were not developed to prevent unwanted recording of physician-patient interactions, they certainly do minimize that risk and may force a patient to request the right to record a conversation.  While this approach cannot completely avoid the possibility of being recorded, it likely does help.  

Whether you are the one doing the recording or the one who has been recorded, I urge you to consult with counsel for more precise guidance on this complicated issue.