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Family may use secret recording in medical negligence suit
In the Courts. By ALICIA GALLEGOS, amednews staff. Posted Feb. 27, 2012.


A doctor's conversation with a patient's children about their father's condition is not protected by peer review statutes, the Ohio Court of Appeals has ruled. Because the discussion was not protected, the court said a secretly recorded conversation made by the relatives may be used against the physician in a medical liability case.

The case illustrates the growing liability risks doctors face as handheld recording devices become more common. Technology is making it increasingly easy for patients and others to record their doctor without the physician's knowledge, legal experts say. A related issue is patients requesting permission to audio-record visits to the doctor.

"It's going to be more and more of a problem," New York-based medical liability attorney Sean F.X. Dugan said of secret recordings. "We have all these tiny devices that fit in the palm of your hand. I don't know if most doctors would object if a patient asked, 'Can I record what you're telling me about these medications?' The problem arises when it's a surreptitious recording."

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The Ohio ruling stems from a lawsuit filed by the family of Howard L. Smith. In 2010, Smith underwent elective knee surgery at what is now known as Mercy Regional Medical Center in Lorain, Ohio. Two days later, Smith experienced cardiac arrest and was declared brain dead, according to court documents. He later died.

Before his death, Smith's son Leonard and his siblings met with Chief Medical Officer Haysam El-Dalati, MD, to discuss their father's treatment. Dr. El-Dalati did not treat Howard Smith but spoke to them in his role as chief medical officer. Smith's family used a hidden recording device to record the meeting.

During the conversation, the doctor made sympathetic and apologetic comments and admitted fault on the part of the hospital for Smith's condition, according to court records. The family later sued the hospital and its medical staff for wrongful death. The family claimed that Smith's cardiac arrest was caused by a critically high potassium level in his blood. The level was detected in a blood test, but the results were not reported in time to doctors, the family said.

Dr. El-Dalati and the hospital learned of the secret recording during discovery. The hospital filed a motion requesting that the plaintiffs be prevented from deposing Dr. El-Dalati and that the recording be excluded from evidence. They argued that the information Dr. El-Dalati expressed to Smith's family was derived from peer review activities and was not discoverable under Ohio law.

A trial court ruled for the Smith family, allowing the recording. The hospital appealed.

In its Dec. 22, 2011, opinion, the Ohio appellate court found no independent proof that what Dr. El-Dalati told the Smith family came from peer review information. The court said the peer review privilege does not apply to the case, thus denying the defendants' motion to exclude the hidden recording device.

An attorney for the defendants declined to comment. At this article's deadline, attorneys for the Smiths had not returned messages seeking comment.

What's legal to record
Whether it's legal to secretly record a conversation with a doctor depends on the state. In Ohio, only one party must consent to a recording, meaning the person initiating the taping has the right to record without the other party's knowledge.

The majority of states have similar recording laws, while some states require consent by both parties, said Brian R. Balow, a health care attorney with Dickinson Wright PLLC in Michigan.

Whether a hidden recording is admissible in court centers on several factors, Dugan said. First, if the doctor admitted fault for a medical outcome on the tape. Secondly, if the plaintiffs can prove the recording has not been manipulated.

"The judge is faced with the difficult issue of, 'Should this private recording go before the jury?' It's a tough call," Dugan said. "Technically, if [the tape] is properly authenticated, and the doctor made an admission on the tape, it could possibly come into evidence."

The issue becomes more challenging if the recording captures only part of a discussion or office visit.

"Everything has to be taken in context," Balow said. "If you take things out of context and only record what you want, or only play what you want, the conversation becomes something of another flavor."

If physicians are concerned about patients or family members recording visits, one strategy is to create an office policy preventing recording devices, said Frank B. O'Neil, a spokesman for the national medical liability carrier ProAssurance Corp. Like any rule, doctors should visibly post the policy in their office and make sure patients take note, he said. The policy should be explicitly stated so that patients aren't surprised if the issue comes up.

"If you're not comfortable with it, you should have a policy you can point to," he said.

Recordings can have benefits
More doctors are facing requests by patients who want to record office visit details, O'Neil said. Some physicians believe allowing a patient to record a conversation or a set of instructions is helpful, he said.

"A lot of it would depend on the specialty," he said. "If you're dealing with an aging population, and there is not an adult child there who can act as their advocate," recording a visit might be beneficial.

Taping medical advice allows for better patient compliance, said family medicine specialist Carolyn J. Oliver, MD, founder of the nonprofit Cautious Patient Foundation, which advocates for patients.

Dr. Oliver said patients forget between 30% and 70% of what their doctor tells them within minutes of leaving the office.

Her foundation in December 2011 launched a project called "Your Doctor's Advice," which provides a cellphone application that records doctors' visits. Patients can ask physicians to repeat medical instructions at the end of a visit, or the patient can repeat the advice into the cellphone recorder. The recording is transferred to the patient's computer to replay at home. The recording also can be shared with relatives.

"The ultimate goal is to take the scientific evidence we have that patients only remember 60% of what [doctors] say and make it into something that patients can actually take home, so that their diseases get better," she said.

The foundation's project is being used as a pilot program at the University of Texas Medical Branch in Galveston, where Dr. Oliver is founder of the Oliver Center of Patient Safety and Quality Healthcare. The cellphone code also is available to patients from a foundation website.

Dr. Oliver said most doctors are hesitant to allow recording devices into their offices, but she believes that will change. The "Your Doctor's Advice" project has been approved by UTMB's legal affairs department, and creators of the project do not believe the recordings pose liability risks for doctors, said Dr. Oliver, who also is an attorney.

"Most doctors are very cautious and think everything will make them liable," she said. "Doctors are known for not liking change. But I think if doctors understand how many [patients] don't remember [medical advice], the majority of good doctors will embrace this."

Gallegos is a staff reporter who covers legal covers legal, antitrust, fraud and liability issues and writes the "In the Courts" column. She can be reached at 312-464-4426 or by email ([email protected]).
 

PinchandBurn

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Interesting...

so essentially now we need to put a sign up in the office that explicitly states: "No unauthorized recording is permitted ".
 

Ducttape

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Or how about a sign: " if you are prescribed opioids at this appointment, you will forget everything you have been told about, and you will invariably use the standard excuse when you violate your contract - that noone ever told you.

So don't record your appointment so you can use that excuse."
 

Jcm800

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Why should doctors be protected by the law. I'm no lawyer, but my understanding that secret recordings are to admissible in court in other situations...
 
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Interesting...

so essentially now we need to put a sign up in the office that explicitly states: "No unauthorized recording is permitted ".
Evidently the court would toss that out.
 

Danbo1957

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Interesting...

so essentially now we need to put a sign up in the office that explicitly states: "No unauthorized recording is permitted ".
For the last eight years we've posted in our office, and on forms and paperwork: "The use of sound recording devices and cameras are not allowed in clinical areas."

We post this because we worry about HIPAA issues involved more than anything else.
 

PinchandBurn

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For the last eight years we've posted in our office, and on forms and paperwork: "The use of sound recording devices and cameras are not allowed in clinical areas."

We post this because we worry about HIPAA issues involved more than anything else.

according to the article:

"Everything has to be taken in context," Balow said. "If you take things out of context and only record what you want, or only play what you want, the conversation becomes something of another flavor."

If physicians are concerned about patients or family members recording visits, one strategy is to create an office policy preventing recording devices, said Frank B. O'Neil, a spokesman for the national medical liability carrier ProAssurance Corp. Like any rule, doctors should visibly post the policy in their office and make sure patients take note, he said. The policy should be explicitly stated so that patients aren't surprised if the issue comes up.

"If you're not comfortable with it, you should have a policy you can point to," he said.

Atleast this way you may have a chance of somethign not being allowed in court, since it was illegally obtained. Better than nothing. But I agree, it shouldnt be allowed either way since it can be a possible HIPAA violation. For example, patients can not only audio record, but video record other patients that come to the clinic.
 

emd123

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I believe that in some states, it's illegal to record a conversation without consent, and legal in others. I expect that we will see more of this in malpractice cases, Medicare fraud investigations and from the DEA. Assume every patient encounter could be recorded, every patient could be a cop, and every case could go to court. It's a shame it's come to this, but that's the world we live in. We are ruled by lawyers. Big Brother is watching.

How genius was George Orwell, really?
 

clubdeac

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I can see this being used in any case where any patient suffers a negative outcome from a procedure or medication. Did YOU as the physician clearly state the myriad complications that could arise from your medication and/or procedure? The alternatives, benefits and expected ouctcomes? Well you thought you did but you missed one little thing and it's right there caught on tape. Forget the fact that it's clearly spelled out in the consent form that the nurse went over with the patient before you walked into the room.

As an example.. who here prescribes neurontin? Lyrica? What if your patient suffers from underlying depression and commits suicide. The family later decides it was because of your medication. I mean it's on the black box warning. With how little we're paid for a simple office visit, no physician has time to sit with each patient going through the litany of possible complications that may arise from our care...
 

Mattchiavelli

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Couldn't there be a 5th amendment issue with this too? Maybe not in this case since it involves an individual representing an entity but for someone being sued directly having their own words used against them.
 

jettavr6

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As an example.. who here prescribes neurontin? Lyrica? What if your patient suffers from underlying depression and commits suicide. The family later decides it was because of your medication. I mean it's on the black box warning. With how little we're paid for a simple office visit, no physician has time to sit with each patient going through the litany of possible complications that may arise from our care...
Don't think you have anything to worry about here if the patient isn't showing clinical signs in your office. To protect yourself, you can add one check box to your note saying -- denies SI/HI -- or A/V hallucinations. This could apply to opiates and other medications that we all prescribe.
 
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I only had one patient want to tape record me "Just so you know I AM tape recording this visit" and very dramatically set the recorder on the table between us. I said it was fine and she ended up to be an okay patient. I think she just had some bad experience with another doctor that made her think she needed a tape recording. She stopped taping me after the first 2 visits.

Not sure what my state laws are regarding unauthorized taping of conversations-re admissability in court. Guess I will go find out!
 
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It's analogous bleached blonde hair, sunglasses, gauges, tatoos, etc. More weird behavior.
 

SSdoc33

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I only had one patient want to tape record me "Just so you know I AM tape recording this visit" and very dramatically set the recorder on the table between us. I said it was fine and she ended up to be an okay patient. I think she just had some bad experience with another doctor that made her think she needed a tape recording. She stopped taping me after the first 2 visits.

Not sure what my state laws are regarding unauthorized taping of conversations-re admissability in court. Guess I will go find out!
i would have refused to see her if she whipped out a recorder.
 

PMR 4 MSK

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I'm told in my state you cannot records someone without their consent. But that comes from non-lawyers.

I had a report one day that one of my patients was recording me with a tape recorder in his pocket. When I confronted him, he would not confirm or deny it. "So what if I was?" he asked. I sent him a discharge letter because he was so smug and asinine about it.

I guarantee you have patients who record you now, or their family members do. Apps for phones are easy to download for this. Cell phones are so ubiquitous now, you won't even notice them.
 
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Well I don't mind if someone wants to tape an office session where I explain degenerative spondylosis. I probably would refuse to let someone tape the informed consent or a procedure, cause that's what people like to sue over.