By Stacey Kusterbeck
Would a smartphone recording made by a patient or family member during an ED visit be allowed as evidence in malpractice litigation? One pivotal factor is whether the state allows recording of conversations with just one party knowing. If it does, the recording likely is admissible, says Douglas K. Williams, JD, an attorney at Breazeale, Sachse & Wilson in Baton Rouge, LA.
It also is possible patients or visitors surreptitiously record the visit, which becomes a central issue during litigation. “It will still probably be allowed to be admitted into evidence. All you need is somebody to authenticate it,” Williams says.
One argument against admissibility is the evidence is supposed to be accurate. The defense can argue only a portion of the visit was recorded, which is not an accurate representation.
Even if the patient recorded the entire discharge instructions, relevant discussions might have happened throughout the visit. The defense can challenge the admissibility based on that argument, but the ruling could go either way.
“The judge might decide to let it in, and the EP can explain it, or the judge may say the evidence is sufficient, that this is not complete,” Williams says.
One test for every code of evidence — state or federal — is whether it is unduly prejudicial to allow the evidence in the record. The defense could argue since an incomplete recording does not depict the entire visit, it is unduly prejudicial because it focuses the jury on only a portion of what occurred. If the recording is excluded, there is another way it could come before the jury. “If the doctor, nurse, or administrator denies saying something that’s actually on the recording, then it might come in as impeachment evidence,” Williams says.
Scott Martin, JD, senior counsel at Husch Blackwell in Kansas City, says in most jurisdictions, patients and families are not required to obtain consent to record ED discharge instructions. “In many ways, this is essentially considered ‘note-taking’ by the patients or families,” Martin says.
In Martin’s experience, in single-party consent states, recordings generally will be allowed into evidence if a party can identify the time/location of the recording, along with the voices on the recording, and provide an accurate and non-redacted version. “This is not always possible, especially for secret recordings, because the quality may be poor. It can be difficult to get an accurate transcript of the discussion,” Martin notes.
Some states require all parties consent to a recording. In those “all-party” consent states, patients should ask permission to record the encounter. “If the clinician refuses to allow the recording and the patient/family continues the recording, the clinician has the option to continue or terminate the care,” Martin says.
However, terminating care in the ED is problematic. It could provide the basis for a separate claim under EMTALA. Even if it is an all-party consent state, and the recording is not allowed into evidence, notes Martin, “the patient or family will be allowed to testify about any statements made by the ED provider.”
Even if it is inadmissible, the recording could be relevant during discovery and even settlement negotiations. “Malpractice attorneys often request any recordings in discovery to avoid surprises later in litigation,” explains Ashley Dobbin Calkins, JD, an attorney in the Richmond, VA, office of Hancock Daniel & Johnson.
A recording could support the plaintiff’s claim an EP was rude and dismissive, or did not convey vital information. “Conversely, a recording could capture a provider’s thorough and respectful discussion with a patient, which could invalidate claims by the patient or undermine assumptions an expert witness has made,” Calkins says.
There also are potential concerns about patient privacy regulations, such as HIPAA. “Everybody thinks in terms of the patient’s privacy rights. But they’re not the only one with privacy rights,” Williams says. “Other patients have privacy rights, too, and so do ED providers.”
In a state that requires consent of both parties to make an audio recording, the patient or the family would need permission from the physician, nurse, or anyone else they are recording. “While a hospital, physician, or other provider is subject to HIPAA requirements in most cases, patients are not constrained by these federal privacy regulations,” notes Shannon B. Hartsfield, a partner with Holland & Knight.
Providers would need to take care to reduce the chance protected health information of other patients could be recorded. Some hospitals have implemented policies prohibiting using audio or video recording devices in certain areas. Regardless of whether there is a specific policy, an ED clinician may not want to allow recording in a crowded department where the recording could capture information about another patient. “If an ED provider becomes aware that protected health information was recorded by an unauthorized person, the situation could amount to a privacy breach if the information was compromised,” Hartsfield cautions.
Whether such a situation constitutes a “breach” as defined by HIPAA would require a detailed factual analysis. If it is, it would have to be reported to the patients whose information was recorded to the Office for Civil Rights. Those privacy concerns would not arise if a patient recorded the EP’s instructions in a private room. The EP is not responsible for protecting the privacy of a recording made by the patient that is not part of the physician’s own record and does not contain information of other patients. “If a physician is uncomfortable that a patient wants to record the conversation, that may be an opportunity to have dialogue about the patient’s concerns and learn whether there is some other way to help the patient retain the information they need,” Hartsfield offers.
Martin’s general recommendation is “to allow recordings as standard practice and procedure in departments, but to take precautions.” EPs could say it is OK to record, then give instructions. Martin suggests providers ask recordings be made openly. Inform the patient the health record will note recording is taking place. Finally, tell the patient that no one else’s care or information can be recorded.
Even if recordings are not allowed by policy, emergency providers should anticipate it will happen anyway. “We may as well accept that recordings are likely,” Martin says.
From a malpractice liability standpoint, ED recordings could even end up helping the defense. “A recording could prove that the discharge discussion occurred,” Calkins notes. “It could prevent patient claims that a provider ‘didn’t tell me.’”
Even if the patient recorded the entire discharge instructions, relevant discussions might have happened throughout the visit. The defense can challenge the admissibility based on that argument, but the ruling could go either way.
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