Family may use secret recording in medical negligence suit

A column analyzing the impact of recent court decisions on physicians

By — Posted Feb. 27, 2012.

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A doctor's conversation with a patient's children about their father's condition is not protected by peer review statutes, the Ohio Court of Appeals has ruled. Because the discussion was not protected, the court said a secretly recorded conversation made by the relatives may be used against the physician in a medical liability case.

The case illustrates the growing liability risks doctors face as handheld recording devices become more common. Technology is making it increasingly easy for patients and others to record their doctor without the physician's knowledge, legal experts say. A related issue is patients requesting permission to audio-record visits to the doctor.

"It's going to be more and more of a problem," New York-based medical liability attorney Sean F.X. Dugan said of secret recordings. "We have all these tiny devices that fit in the palm of your hand. I don't know if most doctors would object if a patient asked, 'Can I record what you're telling me about these medications?' The problem arises when it's a surreptitious recording."

The Ohio ruling stems from a lawsuit filed by the family of Howard L. Smith. In 2010, Smith underwent elective knee surgery at what is now known as Mercy Regional Medical Center in Lorain, Ohio. Two days later, Smith experienced cardiac arrest and was declared brain dead, according to court documents. He later died.

Before his death, Smith's son Leonard and his siblings met with Chief Medical Officer Haysam El-Dalati, MD, to discuss their father's treatment. Dr. El-Dalati did not treat Howard Smith but spoke to them in his role as chief medical officer. Smith's family used a hidden recording device to record the meeting.

During the conversation, the doctor made sympathetic and apologetic comments and admitted fault on the part of the hospital for Smith's condition, according to court records. The family later sued the hospital and its medical staff for wrongful death. The family claimed that Smith's cardiac arrest was caused by a critically high potassium level in his blood. The level was detected in a blood test, but the results were not reported in time to doctors, the family said.

Dr. El-Dalati and the hospital learned of the secret recording during discovery. The hospital filed a motion requesting that the plaintiffs be prevented from deposing Dr. El-Dalati and that the recording be excluded from evidence. They argued that the information Dr. El-Dalati expressed to Smith's family was derived from peer review activities and was not discoverable under Ohio law.

A trial court ruled for the Smith family, allowing the recording. The hospital appealed.

In its Dec. 22, 2011, opinion, the Ohio appellate court found no independent proof that what Dr. El-Dalati told the Smith family came from peer review information. The court said the peer review privilege does not apply to the case, thus denying the defendants' motion to exclude the hidden recording device.

An attorney for the defendants declined to comment. At this article's deadline, attorneys for the Smiths had not returned messages seeking comment.

What's legal to record

Whether it's legal to secretly record a conversation with a doctor depends on the state. In Ohio, only one party must consent to a recording, meaning the person initiating the taping has the right to record without the other party's knowledge.

The majority of states have similar recording laws, while some states require consent by both parties, said Brian R. Balow, a health care attorney with Dickinson Wright PLLC in Michigan.

Whether a hidden recording is admissible in court centers on several factors, Dugan said. First, if the doctor admitted fault for a medical outcome on the tape. Secondly, if the plaintiffs can prove the recording has not been manipulated.

"The judge is faced with the difficult issue of, 'Should this private recording go before the jury?' It's a tough call," Dugan said. "Technically, if [the tape] is properly authenticated, and the doctor made an admission on the tape, it could possibly come into evidence."

The issue becomes more challenging if the recording captures only part of a discussion or office visit.

"Everything has to be taken in context," Balow said. "If you take things out of context and only record what you want, or only play what you want, the conversation becomes something of another flavor."

If physicians are concerned about patients or family members recording visits, one strategy is to create an office policy preventing recording devices, said Frank B. O'Neil, a spokesman for the national medical liability carrier ProAssurance Corp. Like any rule, doctors should visibly post the policy in their office and make sure patients take note, he said. The policy should be explicitly stated so that patients aren't surprised if the issue comes up.

"If you're not comfortable with it, you should have a policy you can point to," he said.

Recordings can have benefits

More doctors are facing requests by patients who want to record office visit details, O'Neil said. Some physicians believe allowing a patient to record a conversation or a set of instructions is helpful, he said.

"A lot of it would depend on the specialty," he said. "If you're dealing with an aging population, and there is not an adult child there who can act as their advocate," recording a visit might be beneficial.

Taping medical advice allows for better patient compliance, said family medicine specialist Carolyn J. Oliver, MD, founder of the nonprofit Cautious Patient Foundation, which advocates for patients.

Dr. Oliver said patients forget between 30% and 70% of what their doctor tells them within minutes of leaving the office.

Her foundation in December 2011 launched a project called "Your Doctor's Advice," which provides a cellphone application that records doctors' visits. Patients can ask physicians to repeat medical instructions at the end of a visit, or the patient can repeat the advice into the cellphone recorder. The recording is transferred to the patient's computer to replay at home. The recording also can be shared with relatives.

"The ultimate goal is to take the scientific evidence we have that patients only remember 60% of what [doctors] say and make it into something that patients can actually take home, so that their diseases get better," she said.

The foundation's project is being used as a pilot program at the University of Texas Medical Branch in Galveston, where Dr. Oliver is founder of the Oliver Center of Patient Safety and Quality Healthcare. The cellphone code also is available to patients from a foundation website.

Dr. Oliver said most doctors are hesitant to allow recording devices into their offices, but she believes that will change. The "Your Doctor's Advice" project has been approved by UTMB's legal affairs department, and creators of the project do not believe the recordings pose liability risks for doctors, said Dr. Oliver, who also is an attorney.

"Most doctors are very cautious and think everything will make them liable," she said. "Doctors are known for not liking change. But I think if doctors understand how many [patients] don't remember [medical advice], the majority of good doctors will embrace this."

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