by Craig Klugman, Ph.D.
In Dave Eggers’ novel, The Circle, a behemoth tech company makes it popular for people to wear cameras and to live broadcast every minute of their lives (except for time in the bathroom). The goal is to remove secrets and to improve behavior because if you thought you were being watched all the time, you would always behave well (drawing on Bentham and Foucault’s ideas of the panopticon).
Much has been written about using cameras to protect ourselves. To combat racial injustice and claims of abuse, many police departments have adopted the use of body cams for officers. To ensure that seniors are being treated properly, cameras on their persons or in the nursing homes have been proposed. And of course, nanny cams have been in use for years.
A new JAMA article out of the University of Texas Health Science Center ask about patients and families secretly recording physician conversations. With cellphones and tablets, recording is quick, easy, and can be surreptitious. The article discusses the pluses (patients can revisit conversations, more accurate “notetaking,” knowing what’s going on when one is unconscious or family is not around) and minuses (attacking physician reputations on social media, creating evidence for a lawsuit). The authors recommend that if the physician suspects a patient or family member is recording a conversation, that the physician assents and takes this opportunity to improve communication. They suggest that the technology genie is out of the bottle and opposing is only likely to damage the physician-patient relationship.
This is not the first article to discuss this issue. In 2012, American Medical News published an Ethics Forum Q&A on this topic. In 2014, an article on “Patientgate” (clearly a reference to Richard Nixon’s propensity to record all of his conversations, and the Watergate case) was published in BMJ. A physician on KevinMD discussed the ethics and patient requests to record that he had dealt with in practice in 2014.
Under federal law, audio recording is permitted if at least one party to the conversation has given consent, which is the default for 38 states. Only a dozen states (California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington) require that all parties in the conversation give permission.
A physician’s nightmare scenario actually happened in 2014. A patient openly recorded physician instructions before his surgery in pre-op. However, he forgot to turn off the recording and the cellphone was on his person when he was brought in the OR. It kept recording during surgery and the OR chatter was recorded. The patient sued his doctors when he found doctors talking about wanting to “punch [him] in the face,” and calling him a “wimp” and “retard.” They even make derogatory comments about his genitalia.
Given this presumption that more patients will record conversations—openly and secretly—to help them remember and to catch physicians in wrongdoing, I propose that like the police, physicians should adopt bodycams. Or, there should just mounted cameras in all clinical areas.
This concept was raised by Dr. Miles Riner in 2012. He suggested physicians record physician-patient conversations and make those recordings available to patients to help with their education. Riner cited a study where it was found patients do not remember much information given to them by the physician. Recording and making it available to patients, he proposed, could help alleviate this problem.
If physicians make their videos available to patients, then there would not be a need for patients to secretly or openly record. Permission for audio recording does not have to be secretive for the physician; he or she can include this information in the consent form. A notice can be placed in clinical areas that “audio recording is in progress.”
Some may argue that this is a HIPAA violation. But it may not be. If the patient is informed, if the recording becomes part of the medical record, and if the recording is given the same protections that all electronic records should have, then HIPAA may be satisfied.
Besides providing patients with additional information, and giving protection to patients and physicians in the event of misunderstandings or legal action, such recording can have other benefits: Such records can be used in educating health care providers. When medical and nursing students have patient conversations, the recording can be reviewed for training purposes. These records would also be helpful in quality, safety and performance improvement; in research; and in documenting abuse cases.
If the death of privacy means constant surveillance, livecasting of our lives, and recording our interactions becomes the norm, then physicians should be recording. With physician control, patients will have access to the material relevant to their care. Irrelevant material would not be made available, thus avoiding cases like the Virginia lawsuit. A physician record would help to ensure that a patient’s secret recording that is posted social media posting not edited or taken out of context. With an independent recording, the true story could be heard.
Patients can be told that personal recordings are not permitted because a professional copy can be made available on request. Like the “no guns allowed” signs that have appeared everywhere to combat the intrusion of firearms into our lives, perhaps a “no recording” sign can also be adopted.
I have suggested audio recording only as the potential for loss of privacy and embarrassing video diminishes. Visual images create a whole new level for losing privacy and confidentiality.
The heroine of The Circle realizes that the constant streaming of life creates an oppressive society and she fights to stop it, unsuccessfully. As in the novel, the ethics of life recording are happening fast and the law needs to catch up.