Anesthesiology resident Max Feinstein, MD, reviews the legalities around recording conversations with physicians.
Following is a transcript of this video; note that errors are possible.
Feinstein: What would you do if you're an anesthesiologist placing an epidural for a pregnant patient, and partway through, you notice that their partner has their phone out and it's pointed right towards you? You ask whether they are filming and they uncomfortably say no, and put their phone away.
If you're practicing in the United States and the partner was indeed recording, they could actually be violating state wiretap laws, depending on where this took place. On the other hand, if you are a patient under anesthesia and you record your anesthesiologist insulting you, you might find yourself on the winning end of a lawsuit like this patient did.
Juju Chang (ABC News): Well, one unsuspecting patient checked his smartphone after a routine procedure and discovered some nasty results.
Tiffany Ingham, MD: Round and round we go, wheel of annoying patients, we go. Where it'll land, nobody knows! And, really, after 5 minutes of talking to you in pre-op, I wanted to punch you in the face and man you up a little bit.
Feinstein: My name is Max Feinstein and I'm an anesthesiologist in New York City. I'm not a lawyer, but as a physician and a content creator, I think it's really important for both patients and healthcare providers to have a good understanding of when it's okay to record audio or video in the hospital.
The term "wiretap laws" refers to statutes that govern audio and video recordings made of face-to-face conversations, telephone calls, or video calls. These laws vary from state to state. Where states that have one-party consent laws means that only one person who is in the area that's being recorded has to provide consent. Nobody else in the area has to provide consent. In the example of the pregnant patient whose partner is recording everything that's going on in the room, technically the only person who has to provide consent is the person doing the recording. Nobody else is legally required to provide consent.
Thirty-seven states in the United States have one-party consent laws. This contrasts with all-party consent, meaning, as the name implies, that everyone who is involved with the recording has to provide their consent. Violation of these laws may result in fines up to $100,000 and possibly jail time as well.
Wiretap laws are not the same thing as HIPAA, which you might have heard about before. Among other things, HIPAA specifically covers the audio and video recordings made by the healthcare providers of their patients. HIPAA does not extend to recordings that patients make of their healthcare providers. HIPAA is just about recordings made of the patient, whereas wiretap laws can refer to anyone in the room, including patients, doctors, nurses, or anyone else.
In addition to wiretap laws, many hospitals also have policies in place specifically describing what is and is not allowed as far as recording is concerned. For example, Mayo Clinic is a large hospital system that specifically has policies requiring that everyone who is involved with a recording give their consent, including healthcare providers. This is an example of a hospital policy that requires consent for everyone involved, despite the fact that the state in which it's located, Minnesota, is a one-party consent state for recordings.
But the question that comes to my mind is what actually happens if someone is found in violation of this hospital policy? I don't think that there is a hospital jail or something that people get thrown into. When I was doing the research for this video, I actually made phone calls to large, recognizable hospital systems in the United States and asked to be transferred to the security department and questioned them about what would happen if someone is found to be violating recording policies.
My overall takeaway from these phone calls is that it's complicated and really situation-dependent, but actions that hospitals might take range from taking away a patient's cell phone temporarily, all the way to terminating a relationship with the patient. But, obviously, you can't terminate a relationship for a patient who is critically ill in the ICU, so again, that's really situation-dependent.
Wiretap laws were actually featured in this month's newsletter from the Anesthesia Patient Safety Foundation, which was actually the inspiration for this video. The APSF is a nonprofit organization that does really important work related to patient safety and anesthesiology. I have put a link in the description below if you want to check out the June 2024 newsletter.
There are many good reasons that a patient or a family member might want to record a conversation with their healthcare provider. One might be for future reference in case the explanation or instructions that are being provided are complex and the patient or family would like to refer back to them in the future. I have actually done this myself. Even though I have gone through medical school, I have still asked doctors if I can record conversations related either to me or to a family member.
Recording an encounter with a healthcare provider can also be really helpful in case the patient and the healthcare provider don't share the same language. Of course, interpreter services should always be made available to patients, but having a recording of the conversation can be helpful for translating again in the future or, again, for reference in the future.
A recording can also be helpful for educational purposes and this is something I have done, for example, with several of my videos featuring actual patients who provided their consent to be recorded for educational purposes in a video going onto YouTube. Just a reminder that any recording in the United States that involves a patient is going to be subject to HIPAA, so it's important to make sure that you have the appropriate consent when doing this.
A patient or family member may be inspired to make a recording to ensure that there is nothing inappropriate being done or said in the encounter with the healthcare provider. One patient in Virginia accidentally left his phone recording as he was having his colonoscopy done. When he went back and listened to the recording, he found out that the anesthesiologist was actually insulting him while he was under anesthesia.
Watch the video above for more.
Max Feinstein, MD, is a PGY-4 anesthesiology resident at Mount Sinai Hospital in New York City, where he is also chief resident of teaching. His YouTube channel focuses on perioperative medicine, especially the role of the anesthesiologist.