Dr. Joseph Sirven

Dr. Joseph Sirven

Is secretly recording your doctor’s visit OK?  It depends where you live. KJZZ's medical commentator, Dr. Joseph Sirven explains.

I had just completed my physical examination on a patient.  I’m beginning to explain my thoughts on the case. The patient inches closer to me to a point that I start to feel uncomfortable. 

“Do you mind repeating what you just said a little louder?” she asked

“Sure,” and I begin again.

“I’ve got to come clean! I’ve been recording our conversation… Is that bad?” The patient asked.

Shaken, I kept my composure and said “No problem, just place the recorder on the desk so I can make sure I speak to the microphone.”

Given the ubiquity of smart phones with audio recording capabilities, my unusual scenario isn’t uncommon.

According to a British study, almost 15 percent of patients have secretly recorded their doctor’s visit.

However, a recent review in the Journal of American Medical Association, pointed out that the legal repercussions of secretly recording your doctor are remarkably complex and depend on where you live.

Secretly recording your doctor’s visit falls under the laws that govern wiretapping, which vary depending on whether your state is a single party or all party consent state. 

Arizona is a single party consent state. That means that as long as one of the people recorded agrees to it, even without the other side knowing this, it’s OK.

If I were practicing in California or one of the other 11 states with all party consent, my patient would need my permission in recording our conversation or it’s a felony.

What about federal patient privacy laws like HIPAA?

Well, this only applies if a doctor or hospital is recording the conversation and therefore that recording would be considered a part of the patient’s confidential medical record.

If a patient records the visit it’s not subject to HIPAA because it’s her own recording. This is crazy.

The truth is that I have no problem with overt audio recording if it helps a patient’s healthcare. Studies have shown that a patient’s understanding of what a doctor has just explained to them is often forgotten.

However, secret recordings, I just don’t get it, as it undermines the doctor patient relationship. It all boils down to trust.

In answering my patient’s question, “Is that bad?” I should have said: “Be up front with me as I’m here to help.” 

Yet, secret recordings in the wrong state even for the right reason well, the road to hell is paved with good intentions.

Dr. Joseph Sirven is a neurologist at the Mayo Clinic.