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Stinging Doctors: Recording Your Own Surgery

by Craig Klugman, Ph.D.

Ethel Easter expressed outraged this week at what her health care team said about her during her surgery in Texas last year. She claims that before her operation she was flagged as a difficult patient and instead of talking to her doctors at that time, she hid a recording device in her hair. Listening to the recording after her operation, she heard the medical staff discussing her as a “handful” and making other disparaging comments.

This case comes after “D.B.” in 2013 accidentally left his cell phone in record mode during a procedure. The insulting comments made while he was sedated led to a $500,000 payment for medical malpractice and defamation.

While pundits and social media expressed outrage at what the medical staff said during these patients’ surgeries, where is the outrage over a patient running a sting operation on her health care providers? DB’s recording was an oversight: He forgot to turn off the machine while recording his post-operative instructions. But Easter purposely hid a device for recording. This is a form of lying by omission because she did not inform anyone, and a violation of the sanctity of the patient-provider relationship. Trust is the cornerstone of this relationship, which was violated by her clandestine activity. What trust is possible if patients are going to be secretly recording? Besides the ethical issues this raises, there are legal ones as well: In eleven states it is illegal to record a conversation unless both parties are aware and have given consent.

As a bioethicist and clinical ethicist for 15 years, I have heard my share of “gallows humor” about patients. Such joking may be shocking to those outside of medicine, but to insiders it is part of stress management. Prof. Katie Watson in a 2011 article in The Hastings Center report stated that such jokes may not be tasteful but they are directed at dealing with the horror of the situation—cutting into a living human body in this case—rather than disparaging the person him or herself. Watson suggests an ethics of such humor: Were the jokes told in a location where it was presumed only other health care personnel could hear? Who or what was the target of the joke? Could the joke effect the delivery of health care? What was the intent of the joke? Is joke-telling part of the health care provider’s character?

Certainly such comments made in a public place or to the patient directly would be unacceptable. In that context the statement would be about an authority figure—the physician—wielding power to diminish a vulnerable person—the patient. That would be an abuse of power. Dr. Delese Wear and colleagues in a 2006 Academic Medicine article found that health care providers are more likely to joke about a patient viewed as “difficult” or whose affliction is perceived to be preventable. Wear suggests that perhaps better than making jokes, we should teach health care students to address their fears and worries head on and to help them build coping skills

Still, such fears do not forgive a patient from making a secret recording and then claiming shock and outrage. If Easter felt threatened enough by her surgeon that she felt a need to deceive and record him, then she should have brought up her concerns or gone to another surgeon. She not only did the physician a disservice, but herself as well. Unless in an emergency, do not let a physician you do not trust treat you.

As the person with power in a fiduciary relationship, health care providers have an obligation to avoid comments that could hurt or diminish the patient. Doctors and nurses should also not have to practice in a situation where a patient is trying to play “gotcha.” There was some fault in both sides in this case, but the greater offense was that of the patient.

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