Doctor talking into microphone

On its face, it seems like a pretty simple question. Can and should patients record their meetings with their physicians? Bringing a voice recorder, or using a recording app on one’s phone, seems like just a current take on bringing a notebook and pencil to write down the doctor’s explanations and advice. But with the new tools come some thorny issues, as MedPage reports.

“States are widely split on the legality of recordings: 11 require all parties to grant consent, while 39 states plus the District of Columbia require only what’s called one-party consent,” notes Ron Harman King, of Vanguard Communications, on MedPage. (He cautions that he’s not a lawyer, and that readers ought to consult an attorney with questions.)

“Legalities aside, however, my longer, practical answer is … why the heck not?” he adds. “Especially if a patient asks for a doctor’s blessing first and it’s clear the patient’s intent is for her elucidation. To be sure, I can think of some arguments against allowing a patient to record a doctor at work, but stronger ones for it.”

Complex HIPAA regulations could pose problems if the doctor, or hospital, owned a copy of the recording as well, although if the patient holds onto the sole copy, that person has the right to reveal his or her medical condition as widely as he or she would like, according to Harman King, who notes that some “pioneering” practices are recording patient encounters and storing them for patients to access later.

“The law is unclear on who owns the recording under these circumstances, the patient or the practice,” he says. “I applaud the initiative of these pioneers. I just advise them to protect against hackers — and to seek local legal counsel.”

Harman King acknowledges that physicians could face legal hurdles if recordings abound of their interactions with patients, but he says most patients will want to record for non-litigious reasons, and even if a lawsuit does ensue, the recording could protect the physician in many instances.

On the pro side, Harman King cites four advantages of patients recording their doctors:

  • When someone is aware of being recorded, that person tends to slow down and to choose her or his words more carefully. “Many a clinician could benefit from such deliberation and improved communications,” he says.
  • Patients who record their doctors can better follow that physician’s guidance, and that’s particularly true when patients might only absorb part of what’s being said in real time due to trauma or shock.
  • Patients who record their doctors might be showing not a plan to sue but actually great trust and respect. “In the throes of a health crisis, nothing might be more soothing to a distressed patient than replaying the calm, reassuring words of an experienced professional,” he says.
  • Even if one discounts the above three factors, if a patient asks to record and the doctor declines to allow that, won’t that lead the patient to wonder what the physician is hiding? “What then becomes of patient trust?”

And as one might expect, many patients appreciate the benefits. “As aging continues, it’s harder to not be overwhelmed by what you hear in a doctor’s office,” one woman told the New York Times earlier this year. “You can tell me something today, and I won’t remember tomorrow.”

Recording could become increasingly common. In a recent JAMA editorial, Glyn Elwyn, of Dartmouth Institute for Health Policy and Clinical Practice, and colleagues note a British study, which reported 15 percent of respondents had secretly recorded a visit to the doctor. Another 11 percent knew of someone who had secretly recorded a meeting with a physician. And a literature review of 33 studies found that patients use their recordings: 72 percent listened to them, and 68 percent shared them with a caregiver.

“Because every smartphone can record conversations, this may become even more commonplace,” Elwyn and colleagues write.