“While HIPAA regulations give the burden for protection of health information to the doctor, it also says the patient always has the right to disclose their own information,” says Dr. Sastow. “If they choose to play it for their family, friend, other physician or even to the Internet, the doctor would have no legal concerns because it is their information.”
This seems to hold even if the patient’s family member does the posting, as long as the patient has given their consent to include them in the conversation.
“This is still a developing area of law, but to my current understanding, it is the patient’s information to do with as they see fit,” says Dr. Rodriguez, co-author of the JAMA article. “Even when a third party records the encounter and publishes it, as long as the patient gave their consent, it is out of the doctor’s hands. There may be legal, and almost certainly personal ramifications for the third party, but at that point the doctor does not have any privacy concerns.”
When the Patient Is Incapacitated
Where the legalities get a little murkier is when the patient is incapacitated and consent for disclosure passes to a surrogate under state laws. There are times when multiple family members may be attending patient conferences.
What happens when an attendee, other than the surrogate, tapes and publishes the encounter? This may be an issue when multiple caregivers or those at a distance from the physician all need to be on the same page.
‘I would not want to unknowingly be recorded by my friends or by anybody else.’ —Dr. Hausmann
As long as the physician is unaware of the recording, the attorneys think there is very limited liability. However, there is currently no case law on this subject to give more definitive guidance.
If you find your patient is surreptitiously recording your interactions, you can ask them to stop. However, should you not know about the taping prior to its release, your response is likely dependent on where you live.
1- or 2-Party States
“In so-called ‘one-party’ states, only one person in the conversation needs to give their consent for the recording to be legal,” notes Dr. Rodriguez. “On the other hand, two-party states require the consent of all participants in the conversation. Otherwise, the person doing the recording could be charged criminally under that state’s wiretapping statutes.”
In real life, though, a physician’s actions are limited, even in two-party states. Very few doctors will want to file a criminal complaint against a patient.
