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October 21, 2020

Ethical and Legal Considerations of Patients Audio Recording, Videotaping, and Broadcasting Physician Encounters

Author Affiliations
  • 1Department of Surgery, Memorial Sloan Kettering Cancer Center, New York, New York
  • 2Now with Division of Surgical Oncology, Department of Surgery, University of New Mexico, Albuquerque
  • 3Section of Endocrine Surgery, Department of Surgery, The University of Chicago Medicine, Chicago, Illinois
  • 4MacLean Center for Clinical Medical Ethics, The University of Chicago Medicine, Chicago, Illinois
JAMA Surg. 2021;156(2):119-120. doi:10.1001/jamasurg.2020.2968

Given the increased availability of smartphones and other devices capable of capturing audio and video, it has become increasingly easy for patients to record medical encounters. This behavior can occur overtly, with or without the physician’s express consent, or covertly, without the physician’s knowledge or consent. The following hypothetical cases demonstrate specific scenarios in which physicians have been recorded during patient care.

A patient has come to your clinic seeking a second opinion. She was recently treated for cholangiocarcinoma at another hospital. During her postoperative course, major complications occurred that required a prolonged index admission and several interventional procedures. She is frustrated with the protracted management of her complications. In your review of her records, it becomes evident that her operation may not have been indicated; moreover, it appears that gross disease was left in situ owing to the difficulty of the operation. You eventually recognize that she was never informed of the intraoperative findings and final pathology report. During your conversation, you notice that her husband opens an audio recording app on his phone and places it face up on the desk to document your conversation.

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1 Comment for this article
Positive outcome of patient-physician audio recording
Claudia Surovjak, RN, CNOR | Hospital
I live in Ohio where disclosure of recording is not required. I have recorded extensive information during a consultation for a complex diagnosis with a huge amount of information being given for a serious diagnosis (pancreatic cancer) for my husband. We were not in a stable and clear headed frame of mind to remember the information and all the decisions we had to make in a timely fashion. It was a huge help to be able to go back and take in the conversation and research what we didn’t understand after the shock had subsided a bit and we could think more clearly. It helped us to be able to have a more thorough and well thought outconversation about options and treatment decisions.