Abstract: Medico-legal implications of video recording
If I record, will I get sued? Studies say No!
In the below abstract, research fellow, Dr. Komal Naeem discusses the medico-legal implications of video recordings finding that recording doesn’t increase the risk of malpractice lawsuits. See the full abstract and conclusions below.
Audio and video recording of patient-physician communication has been proved to enhance the experience of care, improve recall of medical information by patients, strengthen trust between the patient and physician and result in higher satisfaction rates among patients and their family members. Despite being an efficient and cost-effective tool for better healthcare provision, its use has been limited due to the presumed concerns regarding unfavorable medico-legal consequences. In this paper, we present the medico-legal implications of the video recording system used in out-patient setting at our high-volume center. We started video recording clinical visits in 2009. The password protected video is uploaded on the internet and can only be accessed by the patient and healthcare personnel involved in the care. Patients can easily re-watch the video and can share it with their family.
We introduced the facility of video recording of patient-physician encounter in 2009. In the past ten years around 40,000 clinical encounters have been recorded. In the meanwhile, not a single malpractice claim (paid or settled) has been made against the physician. The number of users has been increasing in the last five years, but it does not conclude into increased risk of malpractice liability (fig 1). There has been one instance when a patient filed a malpractice suit because of an intraoperative complication. However, the name of the attending was not mentioned in the case at all, even though he was the primary surgeon. It is postulated that the strengthening of the physician-patient relation by video recording can serve as a contributing factor for patient’s behavior. As a result of us using this particular video recording system (Medical Memory), the insurance carrier provides an additional coverage of $1 million, if the case goes into the trial (this is in addition to the $1 million already provided by insurance). Furthermore, the data from medical memory can serve as the evidence in the court room where jury and judge are biased towards the patients’ account as opposed to physicians’ because of presumed better recalling of patient about their unique clinic visit as compared to physician who sees multiple patients during the day.
Results and Discussion:
In 38 (76%) states it is legal to record the conversation as long as at least one party consents, hence if a patient records the entire visit without informing the physician, they are not liable legally. With the recent technological advances, it is not possible to limit the surreptitious recording of the clinic visit by patients. For multiple reasons including HIPAA compliance patient controlled recording is not an effective option. The logical solution lies with the physician. This opportunity should be used to communicate effectively and compassionately. The provision of this facility by health care personnel makes the entire process more channelized and organized so patients and physicians both find it beneficial without the violation of privacy and confidentiality.
We describe our experience with the video recording of patient-physician communication in out-patient settings. In contrary to the popular belief, video recording clinical visits does not increase the risk of malpractice claims. We report increase in the number of users without an increase in the risk of the claims.
In 38 states, it is legal for a patient to secretly audio/video record the clinical visit. With the advent of technology, function of audio/video recording is readily available in smartphones and other handheld devices and it is hard to limit the patients from doing so. Healthcare providers can play their role by providing a more organized system of recording. This way it will be beneficial to patients and physician without any risk of violation of confidentiality.