Secret Recordings Pose Risk to Clinicians and the Facility
December 1, 2025
By Gregory Freeman
Secret recordings in a healthcare setting can pose a number of liability risks, so healthcare organizations should have clear policies that control various types of recording. The problem of secret recordings has grown exponentially now that nearly everyone has a smart phone and is comfortable recording all aspects of their lives, says Jennifer Flynn, CPHRM, risk manager with Nurses Service Organization in Fort Washington, PA.
“The impetus for recording a session might come from a good place. Patients often record their encounters with healthcare providers because they want to recall those important steps or information about maybe their medication or the medical information that is being told to them,” she says. “Maybe it’s a stressful time. They want to be compliant or adherent with the advice that their provider is giving to them. They may want to include family members on those details, sharing that video with family members who may have questions.”
Some patients may openly record videos without trying to hide anything, but others may record surreptitiously if they think the clinician would object. Most states have a one-party consent status, meaning the patient can record a conversation without the other person’s knowledge or consent, Flynn explains. There are a few states that have a two-party consent, meaning that the clinician would need to consent to being recorded, or it becomes illegal, she says.
“One thing a nurse would need to know is that, regardless of your state being a one-party or two-party consent, your hospital or your employer or your facility may have a policy on recordings that you should know and understand,” she says. “You might have to convey the policy to patients or enforce that policy in instances where you know recordings might not be allowed. You’ll need to manage those expectations with patients.”
There also might be times when the clinicians themselves might be recording. That could violate HIPAA and state privacy laws, Flynn says.
“We want nurses to understand the uses of recording, the intent of recording, and the rules that their facility might have around recording so that they can protect themselves and set boundaries with patients but also protect themselves from having a liability lawsuit themselves,” she says.
Recordings also can be inadvertent, Flynn notes. The patient may have been intentionally recording information with the clinician and then put the phone away, but it inadvertently kept recording.
“When we see claims or even state board matters where a recording was brought into evidence, it’s usually because the nurse or another provider made disparaging remarks against the patient when they didn’t think they were being recorded. We’ve also seen instances where maybe a recording in a non-client or patient area was being taken because the facility had the (closed circuit television) set up in that non-patient area, and it captured something related to treatment and care,” Flynn says. “Maybe the nurse didn’t realize that that could come into evidence in a liability lawsuit because it maybe provided evidence of the patient’s narrative or the patient’s version of events over what the nurse said that they did.”
Flynn recalls one claim in which a nurse was documenting that they were providing emergency resuscitation efforts to a patient, and the video recording of that did not support the nurse’s version of events. That recording was used against them in the liability lawsuit.
“When those types of instances occur, they usually become very hard to defend,” she says. “When you think about the nurse having ethical standards, having practice standards, their duty to the patient, if there was a breach in that duty that led to a patient being harmed, and then there’s video evidence to support the patient’s version of events, it becomes a difficult time to for us to prove to a jury that that was even a one-time occurrence.”
If a patient is recording and the hospital has a policy prohibiting recording in that situation, Flynn says the clinician should notify a manager or supervisor. Also, document the interaction and how the patient was informed about hospital policy.
“You might even need to seek the guidance or legal guidance of your facilities team to understand, you know, how to manage that situation,” she says. “There is potential for misuse with those recordings and potential for legal liability with those recordings if, in fact, inappropriate behavior is captured and then made public.”
A facility’s policy should include how to document those situations, and it must be consistent with your state privacy laws, Flynn says.
“You may want to post signs around the facility on whether or not recording is allowed, or even have the patient sign off on a written release that explains about recordings and the appropriateness of them,” she says. “Any time you use technology, not only do you want to ensure that there are policies in place at the facility level, but also that you’re reviewing those policies and procedures in a timely manner, at least an annual basis, to make sure that they are contemporary with the changing times and changing technology.”
Most hospitals have policies on recording, Flynn says. They usually address privacy laws and protected health information and probably prohibit employees from recording in clinical areas, she says.
“It might even address how those recordings might be stored, especially when you think of the statute of limitations in a state where a patient might have, on average, two years to bring a liability lawsuit. It might even outline the clinical or operational necessity for that recording and the consent requirements that you have for patients,” Flynn says. “But I think these secret recordings are mostly done on the patient side.”
Greg Freeman has worked with Clinican.com and its predecessor companies since 1989, moving from assistant staff writer to executive editor before becoming a freelance writer. He has been the editor of Healthcare Risk Management since 1992 and provides research and content for other Clinician.com products. In addition to his work with Clinician.com, Greg provides other freelance writing services and is the author of seven narrative nonfiction books on wartime experiences and other historical events.
Sources
- Jennifer Flynn, CPHRM, Risk Manager, Nurses Service Organization, Fort Washington, PA. Telephone: (215) 773-4513. Email: [email protected].
Secret recordings in a healthcare setting can pose a number of liability risks, so healthcare organizations should have clear policies that control various types of recording. The problem of secret recordings has grown exponentially now that nearly everyone has a smart phone and is comfortable recording all aspects of their lives.
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