News & Insights

Recording Medical Encounters

September 28, 2018

By Karen Duncan, RN, Attorney at Law

Recording Medical Encounters

In the early days of television, Candid Camera was a popular series. In the first of the now-popular reality TV genre, Candid Camera producers would set up a hidden camera to record a response to practical jokes. When the reactions were funny, the covert camera was dramatically revealed with what became the show's catchphrase, "Smile, you're on Candid Camera."

Now, in the age of smartphones in every pocket, many clinicians wonder and worry if patients are covertly recording office visits. Many are. At the same time, healthcare organizations have expanded the use of institutional electronic audio or visual recordings for security, enhanced patient communication, or medical record purposes. 

The applicable laws relating to audio-visual recording in a healthcare setting are frequently misunderstood. A recent JAMA article, (Can Patients Make Recordings of Medical Encounters? What Does the Law Say? JAMA, Volume 318, No. 6, August 8, 2017) discussed that the application of law to these situations depends on a lot of factors. The details are important. Who is doing the recording? Who is being recorded? Where was it recorded? 

The first law many clinicians think of is HIPAA. If a patient or family member is recording a healthcare worker, HIPAA simply has no application. HIPAA protects the privacy of patients, not employees, in this context. So, HIPAA confers no privacy rights to a healthcare employee. 

If the healthcare institution is doing the recording and it is of a patient, broadly speaking, HIPAA may apply. There are several important fact-based exceptions beyond the scope of this article. As a rule of thumb, however, assume that HIPAA applies to most recordings of a patient by a healthcare institution.   

Does a healthcare employee have any “right” under another law not to be recorded by a patient? Doesn’t the “right” to privacy apply? Like most things in law, it depends. The right to privacy is based on the Supreme Court’s interpretation of the U.S. Constitution’s 4th Amendment right to be free from government interference (the Constitution, in fact, doesn’t even use the word “privacy”). Hugely simplified, unless the person recording the employee is an agent of the government, the employee openly performing his or her job cannot claim a right to privacy based on the Constitution. 

If not under HIPAA and not under the Constitution, does a clinician performing his or her job have any basis to object to being recorded by a patient or a family member? Again, it depends – this time on the state in which the recording is performed.

Most states (39 out of 50, including Louisiana) are one-party consent states. That is, only one of the parties has to consent to make the recording legal. Simply, if (consenting) Patient A records Healthcare Employee B giving a medication to Patient A, only Patient A’s consent is necessary. Healthcare Employee B’s consent or objection to being filmed is not relevant to whether the recording was legally obtained. 

When none of the parties consent, a "Smile, you're on Candid Camera" surprise could run afoul of state criminal laws. The specific intent and facts matter, but a third-party recording others who haven’t consented could be criminal wiretapping. A variety of criminal wiretapping is video voyeurism, filming for vulgar purposes or covert recording in places where there is a reasonable expectation of privacy (e.g., a bathroom stall). 

The Takeaway

  1. Make sure you have a policy addressing audio and video recording. Train your staff. Create a process that includes how to document the recording, and when to report it to your administrative or executive staff.
  2. Make sure the policy includes what to do if, after a polite request to stop, the recording continues. 
  3. Consider very carefully whether an escalated response is really necessary. Security or the police are needed only in very unusual circumstances, and only after review by a high level institutional authority. Make sure a response to a recording is reasonable and, most importantly, proportional. 
  4. Consider the recording as an opportunity to talk to your patients. Why are they filming? Ask directly if they are trying to document quality of care, or simply want to review instructions at a later date. As the police departments with bodycams have discovered, recordings can also be powerful evidence that the right decisions were made. 
  5. A healthcare provider has an obligation to protect a patient’s privacy. If the provider is recording a medical encounter, determine if the patient consents to the recording, or not.

Candid Camera was filmed in an era innocent of the modern advancement of privacy rights and camera-in-your-pocket technology. LAMMICO’s Risk Managers can help you keep up to date with the law and technology. For more information, please contact the LAMMICO Risk Management and Patient Safety Department at 504.841.5211. 

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