Patient secretly recording conversation

[Interpolfanclub]

Anyone have this happen to them? Had a mom recently who wanted a bunch of unnecessary tests on her 2 year old with a fever (CBC cultures etc etc) and I told her they weren't warranted. She was clearly hostile from the start so I was very polite, attempted to placate her, talked to grandma on the phone and repeatedly advised her that the child looked fine and didn't need a bunch of tests.

I thought it was odd she kept asking me to repeat myself, to repeat that he didn't need any tests and that "I don't know why he has a fever." To the point that it became rather surreal honestly. At the end when I discharged her she told me "Just so you know, I've been recording this entire conversation." This kind of took me off guard but I actually approach every encounter like I'm being recorded since I knew this would eventually transpire. I'm not worried about any negative outcome or complaint, this woman clearly has a mental illness or personality disorder. I'm just curious if anyone else has had this happen.

I asked one of my partners and he said he tells them something to the effect of "I think that is illegal in our state. I know you wouldn't do anything illegal, would you?" Which I really liked.

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[The White Coat Investor]

It is illegal in some states. Some states require both parties to know. Most (38) only require one. I don't think telling someone at the end of the conversation counts as both parties knowing though.

Look up your state law. If it is legal to do it with the consent of just one party, then my snarky reply to her would be, "Me too. I record all of them." It would probably generate a complaint though. If it did, it would be really fun if you actually did record the thing.

http://www.detectiveservices.com/2012/02/27/state-by-state-recording-laws/

 

[gman33]

According to that link, that would be illegal in my state.
I'll have security detain the person and call the police.
That will help my PG score....

 

[TooMuchResearch]

"Great. In case you missed something, I'll still include it in the discharge paperwork."

 

[mdmacros]

A couple of drug seekers have started openly recording conversations on their phones hoping to manipulate providers (one-party consent state). They will hold the phone out in front of them like a reporter. Psychologically it does have some effect.

 

[Vandalia]

A couple of drug seekers have started openly recording conversations on their phones hoping to manipulate providers (one-party consent state). They will hold the phone out in front of them like a reporter. Psychologically it does have some effect.

And what exactly is that supposed to do? (laughing) Help provide evidence to the US attorney to prosecute me for prescribing controlled substances outside the scope of practice? Honestly, that would make me a whole lot less likely to prescribe something, not more.

 

[mdmacros]

And what exactly is that supposed to do? (laughing) Help provide evidence to the US attorney to prosecute me for prescribing controlled substances outside the scope of practice? Honestly, that would make me a whole lot less likely to prescribe something, not more.

"You are telling me that you can't give me Dilaudid, but listen to this recording of Dr. X telling me that I need such and such - are you saying YOU know better?" cue fumbling around her recordings.
She'll play back things nursing staff said to her etc and try to trip you up. Most people just do yes/no questions now.

 

[Tenk]

Our ED has a no recording policy. We use HIPAA as our excuse (which is pretty legit imo). Might want to talk to your administrators about that possibly.

Secondly, when people start using doctor language and asking about specific tests and other stuff just ask them why (in a nice way not a mean 1950s surgeon way). "Why do you want blood cultures? What are you looking for? Why do you want X? What will it tell you?"

Put people on the spot. They will do one of two things: 1) Back down because they have no idea wtf they are talking about or 2) Tell you what is concerning them. Either way you win because now you can address their concern.

As an example, I once had an elderly woman who just had musculoskeletal neck pain but she kept asking me if I was going to order any tests. She was concerned about a heart attack because her husband died the same way. People are scared you know. It's always good to try to find out the EXACT reason why they are there and address that rather than guess what they want.

 

[GeneralVeers]

I've had this happen once. As soon as they start to record, I leave the room and discharge them.

 

[southerndoc]

A couple of drug seekers have started openly recording conversations on their phones hoping to manipulate providers (one-party consent state). They will hold the phone out in front of them like a reporter. Psychologically it does have some effect.

All you have to say is "I do not consent to being recorded." A one-party state will allow recording unless the other party objects. In other words, it's ok to secretly record your conversation, but not ok to tell them you're recording and continue to do so after being told you do not consent. You don't even have to say you object. Simply tell them you do not give consent.

If they continue to record, then they can be arrested. Anything you say cannot be used against you legally, but of course, who knows what your medical director, hospital CEO, etc. will do.

You should approach every conversation as if you're being recorded.

 

[msgsk]

This is the case that immediately comes to mind:

https://www.washingtonpost.com/loca...e05c00-18f3-11e5-ab92-c75ae6ab94b5_story.html

As others have said, laws vary from state to state as far as how many people have to consent to recording.

We had an issue with an ER patient irritating an orthopedist who came down to consult into finally losing his cool over repeated requests for pain meds - the patient secretly videotaped the whole thing, then uploaded it to YouTube but conveniently only included the part where the guy lost his cool. The hospital figured out who had uploaded it, forced him to take it down, and rumor has it is considering legal action.

 

[erdoc00]

As said above, just approach every encounter as if you're being recorded. It'll keep you from saying stupid things that will get you in trouble.

Also, make everything about pt safety and optimal pt care. "I don't feel comfortable prescribing antibiotics because I think there is more risk than benefit in this case..." "I don't feel comfortable prescribing narcotics for chronic pain because the medical research shows that it is worse care..."

Don't ever say or do anything that can be used against you. Think about how your actions or words might look on video or an audio recording or written complaint. Our jobs are already hard enough without causing self-inflicted problems. Smile and be polite with everyone and just assume you're always being recorded.

 

[Angry Birds]

As said above, just approach every encounter as if you're being recorded. It'll keep you from saying stupid things that will get you in trouble.

Also, make everything about pt safety and optimal pt care. "I don't feel comfortable prescribing antibiotics because I think there is more risk than benefit in this case..." "I don't feel comfortable prescribing narcotics for chronic pain because the medical research shows that it is worse care..."

Don't ever say or do anything that can be used against you. Think about how your actions or words might look on video or an audio recording or written complaint. Our jobs are already hard enough without causing self-inflicted problems. Smile and be polite with everyone and just assume you're always being recorded.

Great advice. Use phrases like "I'm concerned about your safety..." , "I really don't want to do you a disservice by prescribing a highly addictive medication that will cause opioid hyperalgesia..."

 

[tkim]

Great advice. Use phrases like "I'm concerned about your safety..." , "I really don't want to do you a disservice by prescribing a highly addictive medication that will cause opioid hyperalgesia..."

I say to them what I actually dictate into the chart - almost word for word: "I check our state database before prescribing narcotics, and I see you've had multiple prescriptions from multiple providers. I am very concerned about the increased risk of abuse, addiction, and overdose since so many different people are prescribing you narcotics. Since you are allergic to many other non-narcotic pain medications, it is difficult to find something else to treat your pain, so you need to followup with a pain management specialist. I cannot do anything more for you in the Emergency Department today."

 

[JustPlainBill]

Drug seekers -- reminds me of an incident when I was an MS3 -- I was bumbling along tracking with the newly minted intern who drew call early in July --- got called to a room by a patient claiming to be in excruciating pain --- we walked in trailed by older, battle hardened RN and see this David Koresh lookalike lying there watching MNF -- describes his pain, states that PO doesn't work for him and goes into this diatribe about morphine never touches his pain the only thing is the "Di...De...Dila" "Dilaudid?", "yeah, that's it" --

So after the appropriate questioning where the major complaint had been suspicious for constipation, the intern goes over to start the exam -- as I watched, he began his auscultation of the abdomen and mashed slowly in on the belly to about 3-4 inches of depth -- our patient continued to calmly watch MNF -- after doing all 4 quadrants, the intern took off his stethoscope to begin a palpatory exam -- he barely touched the patient and the guy jumped and began writhing about in pain --- the intern calmly walked out of the room with all of us --- and without batting and eyelash ordered a bubble gum enema --- the sunshine like grin that broke out on the RNs face was priceless --- learned an important trick that day --- the intern is now a cardiologist ---

 

[EDParallax]

Drug seekers -- reminds me of an incident when I was an MS3 -- I was bumbling along tracking with the newly minted intern who drew call early in July --- got called to a room by a patient claiming to be in excruciating pain --- we walked in trailed by older, battle hardened RN and see this David Koresh lookalike lying there watching MNF -- describes his pain, states that PO doesn't work for him and goes into this diatribe about morphine never touches his pain the only thing is the "Di...De...Dila" "Dilaudid?", "yeah, that's it" --

So after the appropriate questioning where the major complaint had been suspicious for constipation, the intern goes over to start the exam -- as I watched, he began his auscultation of the abdomen and mashed slowly in on the belly to about 3-4 inches of depth -- our patient continued to calmly watch MNF -- after doing all 4 quadrants, the intern took off his stethoscope to begin a palpatory exam -- he barely touched the patient and the guy jumped and began writhing about in pain --- the intern calmly walked out of the room with all of us --- and without batting and eyelash ordered a bubble gum enema --- the sunshine like grin that broke out on the RNs face was priceless --- learned an important trick that day --- the intern is now a cardiologist ---

Where was he watching mnf? You had TVs in the ed?

 

[WilcoWorld]

As said above, just approach every encounter as if you're being recorded. It'll keep you from saying stupid things that will get you in trouble.

Also, make everything about pt safety and optimal pt care. "I don't feel comfortable prescribing antibiotics because I think there is more risk than benefit in this case..." "I don't feel comfortable prescribing narcotics for chronic pain because the medical research shows that it is worse care..."

Don't ever say or do anything that can be used against you. Think about how your actions or words might look on video or an audio recording or written complaint. Our jobs are already hard enough without causing self-inflicted problems. Smile and be polite with everyone and just assume you're always being recorded.

This is all true.

It does get a bit hard to be mindful of this wisdom when I'm hungry, I have to take a leak, and my patient's ambiguously-related-guest (ARG) is asking irrelevant questions with an aggressive tone, but it's good advice.

 

[GeneralVeers]

Not sure why all of you are so nice to these losers. If someone doesn't have a medical emergency and tries to record me, I leave the room and discharge them..... period. If it's their stated intention to record me, I can only presume they are doing so secretly even if they put their phone away. Again, if no medical emergency they need to leave. Just document that they were attempting to record in violation of HIPAA and they had no medical emergency. No hospital admin is going to give you grief for that.

 

[southerndoc]

How is this a HIPAA violation? HIPAA prevents healthcare personnel from disclosing personal healthcare information to other healthcare providers not participating in patient care, to other individuals, etc.

If a patient -- or a family member in the presence of the patient -- records a conversation, it isn't a HIPAA violation because it is their healthcare information.

Likewise, HIPAA doesn't prevent you from discussing the case with other personnel involved with a patient's treatment, including EMS providers and for learning purposes (i.e., quality assurance, grand rounds). You are not permitted to use the patient's name, date of birth, etc. if presenting for learning purposes (personal identifiable information, PII).

There is a lot of misinformation out there regarding HIPAA. For example, use of age can be a PII if they are at extreme ages or unusual locations (i.e., 92 year old or a 20 year old in a children's hospital). Likewise, many fire/EMS services that do not bill CMS are not required to follow HIPAA regulations.

 

[ERDude]

How is this a HIPAA violation? HIPAA prevents healthcare personnel from disclosing personal healthcare information to other healthcare providers not participating in patient care, to other individuals, etc.

If a patient -- or a family member in the presence of the patient -- records a conversation, it isn't a HIPAA violation because it is their healthcare information.

Likewise, HIPAA doesn't prevent you from discussing the case with other personnel involved with a patient's treatment, including EMS providers and for learning purposes (i.e., quality assurance, grand rounds). You are not permitted to use the patient's name, date of birth, etc. if presenting for learning purposes (personal identifiable information, PII).

There is a lot of misinformation out there regarding HIPAA. For example, use of age can be a PII if they are at extreme ages or unusual locations (i.e., 92 year old or a 20 year old in a children's hospital). Likewise, many fire/EMS services that do not bill CMS are not required to follow HIPAA regulations.

I believe the logic is that in a busy and crowded ED any recording could inadvertently pick up PHI of a different patient (eg convos in the hallway, patient's being transported, etc...) and thus be a HIPPA violation. Probably less applicable if you are in a private room with a closed door but it's an angle that can be used to justify a "no recording" policy.

 

[GeneralVeers]

I believe the logic is that in a busy and crowded ED any recording could inadvertently pick up PHI of a different patient (eg convos in the hallway, patient's being transported, etc...) and thus be a HIPPA violation. Probably less applicable if you are in a private room with a closed door but it's an angle that can be used to justify a "no recording" policy.

Exactly. Just claim HIPPA and a hospital administrator will likely back off. No one is going to risk getting a violation of this statute.

As far as I am concerned, if the patient goes into an encounter to record the physician, there is no doctor-patient relationship at that point. They are typically recording with the intent to threaten you, launch a lawsuit, or complain to someone else. In those cases you ensure that there is no life-threatening medical emergency then wash your hands of it.

 

[southerndoc]

I believe the logic is that in a busy and crowded ED any recording could inadvertently pick up PHI of a different patient (eg convos in the hallway, patient's being transported, etc...) and thus be a HIPPA violation. Probably less applicable if you are in a private room with a closed door but it's an angle that can be used to justify a "no recording" policy.

Performing an H&P in the hallway, rooms separated by curtains, etc. are not violations of HIPAA. Likewise, a patient overhearing or even recording someone else's information is not a violation of HIPAA. It might be a violation of hospital policy for a patient to record (which opens up possibility of civil rights litigation), but the federal government does not prevent a patient from recording something because of HIPAA.

 

[southerndoc]

Exactly. Just claim HIPPA and a hospital administrator will likely back off. No one is going to risk getting a violation of this statute.

As far as I am concerned, if the patient goes into an encounter to record the physician, there is no doctor-patient relationship at that point. They are typically recording with the intent to threaten you, launch a lawsuit, or complain to someone else. In those cases you ensure that there is no life-threatening medical emergency then wash your hands of it.

As I mentioned earlier, they cannot continue to record after your objection. If they do, they can be arrested.

 

[JustPlainBill]

Where was he watching mnf? You had TVs in the ed?

Sorry -- no, this was not in the ED, this was in a ward room -- just an experience with a drug seeker within my first week of clinical rotations.

 

[TrumpetDoc]

As I mentioned earlier, they cannot continue to record after your objection. If they do, they can be arrested.

So could a sign saying we do not allow recording fulfill the one side objects requirement legally? Perhaps worded specifically as facility objects to recordings...?

 

[southerndoc]

No, that's been tried before. Only an individual can object as they are part of the conversation. I cannot object for you, and neither can your employer/hospital. If a hospital forbids recording equipment, it can be seen as a civil rights violation. Additionally, if someone leaves before a medical screening exam is performed because the sign intimidated them, it can be seen as an EMTALA violation.

 

[BoardingDoc]

If a hospital forbids recording equipment, it can be seen as a civil rights violation.

How can this be seen as a civil rights violation? You are not in public. You are on private property, and the owners of that private property are within their legal right to forbid recording.

 

[GeneralVeers]

You guys are thinking way too hard about this. If a patient enters an encounter with an intent to gather proof to sue me and/or complain, they should be discharged as quickly as possible. No hospital admin is going to get into an argument with you if you are claiming HIPAA or EMTALA regardless if you are right or wrong.

 

[southerndoc]

How can this be seen as a civil rights violation? You are not in public. You are on private property, and the owners of that private property are within their legal right to forbid recording.

Not in an ER, which is mandated by EMTALA regulations to provide a medical screening exam and stabilization. So, no, the hospital does not have the right to enforce no recording as it could be viewed as a hindrance of care. Even the chronic pain posters in the waiting room was viewed as an EMTALA violation a few years ago.

Not all hospitals are private property. Many -- even if not-for-profit status -- are owned by the local government and are leased to the healthcare organization. For instance, my hospital is owned by the county and leased to the parent not-for-profit healthcare system. This is a publicly owned building, and therefore, it could be argued to be a civil rights violation to prevent someone their rights.

 

[laserbeam]

How about no smoking policy? Is it violation of civil rights?

 

[EDParallax]

You guys are thinking way too hard about this. If a patient enters an encounter with an intent to gather proof to sue me and/or complain, they should be discharged as quickly as possible. No hospital admin is going to get into an argument with you if you are claiming HIPAA or EMTALA regardless if you are right or wrong.

Out of curiosity, how does that conversation go?

-Hello, I'm recording you.
-Thank you for letting me know, you're discharged.
- okay, I'll leave peacefully.

I can just picture this turning into a grand mal hospital police encounter at my shop so I'll take advice on how you handle it!

 

[GeneralVeers]

Out of curiosity, how does that conversation go?

-Hello, I'm recording you.
-Thank you for letting me know, you're discharged.
- okay, I'll leave peacefully.

I can just picture this turning into a grand mal hospital police encounter at my shop so I'll take advice on how you handle it!

It depends. Obviously I do the MSE. If they are there for a complaint like tooth pain, have normal vital signs, and are walking/talking and in no distress, then the above conversation goes exactly like you described.

If they have something "potentially" more serious like chest pain or abdominal pain, then I will give them a warning to stop recording. If they do, then I will do a proper exam, and order any appropriate tests. If they continue to try and record despite my refusal, I will discharge them. I'm under no obligation to stay in the room, do any kind of exam, or indeed have any further conversation with the patient while being recorded, regardless of what their chief complaint is.

 

[htclear]

I've had this happen once