Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“Is it legal for conversations with patients to be recorded, by an audio recording device, if the patient is unaware that they are being recorded? And is it required that the recording be submitted into the patients’ medical file with all other documentation?”Many states prohibit the audio or video recording of someone without their knowledge and consent. However some states only require “one-party” consent, meaning that a person may lawfully record his or her own conversations. In one-party consent states, as long as one person participating in the conversation has consented, the entire conversation may be recorded. Thus, if your state permits such recordings, then as long as one party consents (such as the doctor), the recording may be legal.
Question: However, medical privacy laws may also apply to that recording, requiring that the recording be treated with the same care for privacy and security that apply to any other portion of the patient’s medical records. I’m not aware of any legal requirement that says the recording must be made a part of the medical file, but under laws and regulations such as the privacy requirements under HIPAA (the Health Insurance Portability and Accountability Act) the recording would probably be deemed no different than any other document in the patient’s file. In other words, while the law may not require the recordings be kept in the patient’s file, they will likely still be subject to every protection and restriction just as if it were in the file. (This is what you would call a distinction without a difference.)The Radio-Television News Directors Association has an interesting state-by-state guide to the legality of recording and videotaping at http://www.rtnda.org/resources/hiddencamera/allstates.html. But you will definitely want to talk to an attorney in your state who specializes in health care privacy matters to make sure your planned activities are indeed legal.
The reality is that even though it may be technically legal in your state, it could be very bad for you or your organization if it is discovered later that recordings were made without the consent of the patients. Just because something’s legal doesn’t mean it couldn’t ruin your reputation and turn you or your organization into “that wretched place that secretly recorded everybody when they were telling all their secrets to the doctor.”
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Also, recordings can become an irresistible target for theft and snooping. For example, how much would a tabloid pay for a secret recording of some famous, or not-so-famous person trying to explain some embarrassing medical condition? Having such recordings as a regular part of recordkeeping is a recipe for disaster, especially if the patient hasn’t consented. When the local television news director catches wind of your activities and consults his Association’s website, you could find yourself on the receiving end of some embarassing hidden recordings yourself!
