Dana Orquiza, RN, BSN, JD

Dana Orquiza, BSN, JD

For patients, there can be benefits to recording conversations and video in healthcare.  Some patients may have memory problems or may simply want a way to hear information a second time.  Others may be concerned that information will be cherry picked and taken out of context in the same manner that reality television producers build a dramatic storyline from an innocuous action or statement. But while surreptitious recordings can be useful to patients in situations like these, there are risks involved: particularly the risk of recording conversations without the knowledge and consent of all parties involved.


Surreptitious Recordings

One finger tap is all it takes to surreptitiously record a conversation or video.   Since this practice involves stealth, the frequency is not known, though instances of these events span the Internet.

Last summer, a Virginia court awarded $500,000 to a patient who used his smartphone to audio record his physicians while he underwent a colonoscopy. More recently, a patient who had a hernia repair in Texas hid a recording device in her hair. The patient listened to the recording and heard doctors making inappropriate comments while she was unconscious.

Since we live in the digital age where social media prevails, it’s important for healthcare providers to recognize the possibility that every interaction or conversation with patients and families may be covertly recorded.  Having this knowledge provides opportunities for compassionate, respectful and effective communication between patients, families and healthcare providers.

Once healthcare providers accept the reality of today’s modern world, they may soon appreciate the benefits resulting in behavioral changes.  They may be more thoughtful about the words they use and the manner in which they communicate.  It may strengthen the patient-provider relationship and may decrease the likelihood of defensive medicine.


Mitigating Risk

Patients and families have a variety of reasons for surreptitious recordings.  It’s important to appreciate the reasons, as well as the triggers leading up to this practice.  Does the patient perceive a breakdown in communication and trust?  Is the patient dissatisfied with the provider’s response to a concern?  Is the patient angry? What can healthcare providers do to mitigate risks associated with surreptitious recordings?

Unlike other states, California provides protections for secret recordings by requiring the consent of all parties.  But regardless of locale, if you suspect that a conversation is being recorded, be inquisitive, not confrontational.  Communication is a major component of establishing and sustaining a mutually beneficial, trusting patient-provider relationship, therefore take the opportunity to ask whether the patient and/or family is recording the conversation. The healthcare provider then has the option to:

Consent to the recording and/or:

  1. Acknowledge that the benefits outweigh the risks;
  2. Be guided by patient-centered care where the recording doesn’t affect communication and the treatment plan.

Object to the recording and/or:

  1. Attempt to resolve issues of mistrust;
  2. Educate the patient and family on privacy guidelines;
  3. Openly discuss discomfort with recording.

In every such event, there is an opportunity for providers to bring patients onto the team, to make sure their concerns are addressed, and to offer them comfort, security, and safety. These are hallmarks of exceptional patient care, and supersede the presence of recording devices. Taking precautions and treating patients with due respect can reduce the risks associated with surreptitious recordings and can enhance the success of patient-centered care efforts.

By: Dana Orquiza, RN, BSN, JD

Dana Orquiza is a healthcare risk management professional whose experience includes working as a medical-surgical nurse for over 10 years and as an associate attorney specializing in medical malpractice defense. Dana currently serves as Assistant Vice President of Risk Management of The Risk Authority Stanford. Her combination of clinical experience and legal expertise is instrumental in providing innovative risk management solutions designed to effectively reduce risk and identify opportunities to increase value.