Patient recordings may happen at your practice for a variety of reasons. For instance, patients may be nervous they won’t remember care instructions, or they want to ensure their family members can hear all the details of a new diagnosis straight from the doctor’s mouth. Unfortunately, patient recordings can put your practice at compliance or legal risk and can set you up for potential HIPAA accusations or malpractice suits.
To ensure you manage risk during patient recordings, check the following five tips.
1. Know the Laws in Your State
Most U.S. states allow the patient to record even if the provider isn’t aware of it. Only about a dozen U.S. states prohibit electronic recordings made without the consent of all participants. Due to that, most patients would have a legal right to memorialize the conversation regardless of whether the practitioner agrees.
In addition, the federal wiretapping law requires that only one party must consent to recording a conversation. If the state says the same thing, then as long as the patient doing the recording is aware that it’s happening, then the physician wouldn’t need to agree to it.
If your state law is more restrictive than the federal law, then the state law is the one that applies. For instance, suppose the practice is located in Florida. In that state, all parties must consent to recording. So even though the federal law says only one party must consent, since the law is more restrictive in Florida, then the Florida law takes precedence and all parties must consent.
2. Develop Patient Recording Policies
Even if the law allows patients to record encounters, you can create a practice policy prohibiting it. Post a sign in your waiting room alerting patients that no cameras, videos or recording devices are allowed. In addition, develop a written policy addressing your practice’s position on these recordings. Have patients sign and date the policy along with your other policies and procedures.
If you do allow patient recording to occur, explain the circumstances when it’s allowed and who is permitted to do it.
3. Talk to Your Malpractice Carrier
It’s a good idea to contact your malpractice carrier as you create your practice’s recording policies. Ask whether patient recordings violate your malpractice policy, and find out what your responsibilities are if patients do record. Get your malpractice insurer’s guidance on this topic in writing so you can ensure that the policy remains valid at all times.
4. Consult an Attorney
If you’re concerned about HIPAA violations or reputation damage due to what these recordings may include, talk to an attorney about your protections and rights. You should also get an attorney’s input on your recording policies to ensure that your restrictions or allowances are within the letter of the law.
5. Avoid Responding to Information Dissemination
Sometimes, patients will record an encounter and share that information on social media or in public forums. Although this can be frustrating, you should never respond publicly, even if it’s to defend yourself. This could cause you to become accused of HIPAA violations by acknowledging that the patient did come to your practice.
You can become mired in legal drama if you don’t nail down your policy for patient recordings right away. Get proven tips from healthcare attorney Osato Chitou, Esq., MPH, during her online training, Prevent Legal Nightmares from Patient In-Office Recordings. Register today!
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