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BY: Matthew Curtis | IN: Medical Malpractice
As personal electronic devices like cell phones and tablets become more advanced and ubiquitous, almost everyone now has the ability to record audio and video at any time with the touch of a button. This can be useful for a wide range of purposes, from fun uses like capturing animal tricks to more practical applications like recording meetings or traffic stops.
But what about recording your interactions with medical personnel? Should you record your doctor visits? Can it be used as evidence in a doctor malpractice case?
Two considerations arise when thinking about the legality of recording a doctor visit.
The first, patient privacy, isn’t actually an issue if the patient is the one who wants to record the encounter. A patient’s privacy rights are protected by HIPAA (Health Insurance Portability and Accountability Act of 1996), but a patient may use, record, or disclose his or her own health information as he or she sees fit.
The other consideration is whether the law allows one party to record a conversation without the other party’s consent. Federal law and most state wiretapping statutes permit recording as long as one party in the conversation consents. Eleven states require the consent of every party to a phone call or conversation for the recording to be lawful: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington.
Although Michigan’s statute seems on its face to be an “all-party consent” law, at least one Michigan court has ruled that one of the actual participants in a private conversation may record it without violating the law, because “eavesdropping,” as prohibited by the statute, refers only to overhearing or recording the private conversations of others. Michigan’s Supreme Court has not ruled on the issue, so it’s not entirely clear that you are legally permitted to record a doctor visit without telling your physician. Of course, you may record a visit with the consent of your doctor.
There are many good reasons to record a doctor’s visit. Visits can be constrained by time, forcing doctors and nurses to quickly give patients a lot of information that is sometimes difficult to understand or fully grasp within the short encounter. Having a recording of exactly what your physician diagnoses and recommends, and the discussion the two of you have, can help you more fully understand your condition and comply with your recommended care plan. A recording can be easier and less distracting than trying to take written notes, allowing you to more fully engage with your care providers while on site.
Recordings can be invaluable tools for both sides during litigation of medical malpractice cases. A potential plaintiff may be able to rely on recordings that support a physician’s failure to diagnose an issue or failure to illustrate a treatment plan that does not meet the established standard of care for an illness or injury. On the other hand, a patient’s recordings may also demonstrate that his or her illness or injury was caused or exacerbated by failure to follow the doctor’s recommendations or get treatment the doctor advised.
Many care providers have negative feelings about patients who want to record visits, as summarized in a 2015 survey of dozens of recent texts discussing covert recordings. Many physicians feel that recording a visit indicates an attitude of mistrust or warns of a potentially litigious patient.
However, the study noted that “research extending over 45 years has examined the benefits, risks, and implications of clinicians providing copies of audio-recordings to patients. A recent review that included 33 studies showed that patients reported many benefits of receiving these recordings, including better information recall and understanding.” It may help to explain to your health care provider that you would like to record your visits so that you can take a more active role in the management of your health, especially if you suffer from an illness or chronic condition, are recovering from an injury, or are facing a major medical event like surgery. Recordings can help you more clearly understand and participate in your own care.
In the unfortunate event that you suffer an injury as a result of a medical mistake, or your doctor fails to meet the established standard of care, recordings of your treatment can be extremely valuable evidence. Provided these recordings are legally obtained, they are admissible evidence in Michigan medical malpractice cases.
Have you been the victim of medical negligence? Contact the experienced medical malpractice lawyers at Sommers Schwartz for a free, no-obligation consultation.
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Matthew Curtis is a senior shareholder and member of the Board of Directors at Sommers Schwartz, P.C. For the past 30 years, he has successfully litigated complex personal injury and medical malpractice cases throughout Michigan, and across the United States.