I was coming back from giving a lecture at my alma mater, the College of Podiatric Medicine and Surgery in Des Moines, last weekend when I was flipping through a Skymall catalogue onboard my flight and noticed a variety of devices for surrepticious filming. There are pens, wristwatches, notebooks, lapel pins and other devices that  no one would notice and that are capable of recording hours of activity.

Over the last weekend I had the opportunity to visit with a dear friend who practices in that state where litigious activity is rampant. It is absolutely crazy. You are almost forced to take photos of every step of your surgery to protect yourself, should you be sued later. I can't imagine practicing in that climate but if I did, you can bet your boots that I would protect myself against lawsuits.

Given the available technology out there, I wondered if it would be ethical or even legal to use this new technology in the patient treatment room?

What do you think? Do we have to practice defensive medicine?

Unfortunately that may indeed be the case; after all we have to protect ourselves.
KS

I would hate to practice in a manner such as that. Here is the problem as I see it...my two cents so to speak....assuming that the activity of taping the patient without consent is legal....and I have serious doubts about that, the tape or video now becomes part of the medical record. I feel that the informed consent provides another basis for an attorney to continue to "punch holes" in any defense and provide plantiff with an opportunity "to get a second bite at the apple." For example...."doctor did you mention all possible complications and seek an acknowledgement of those risks as you stated them to the patient?," "doctor did the patient seem like they understood what you were talking about because he/she looks dazed?," "doctor did you give enough time between discussing the risks for the patient to ask questions or ponder those risks?," etc. etc. 
I have found that a pre-surgical conference to discuss the surgical procedure(s), risks/benefits and alternative treatments followed by having the patient come back for the surgical consent visit. I have the patient sign a written and pictorial consent process (showing where cuts, pins/screws are to be placed) and provide them a copy of these forms with an acknowledgement they received them PRE-operatively. They also receive the post-operative instructions and scripts PRE-operatively and sign an acknowledgement they received those also. It would be difficult to state that the patient did not receive informed consent since the patient also has these forms to read over at home and documented that recommendation to the patient with instructions for him/her to call if any questions or concerns.

For 25 years, I began every informed consent session by telling the patient that we were about to have an important discussion that I always document.  I then pressed record on the dictaphone on the counter and and recorded sound for the rest of the visit, which typically took from 15-30 minutes,

I began by asking the patient if I had their consent to record the following discussion that we will now have all about the surgery that I am recommending for them.  I tell them that, although they've already told me that that they've decided to take my advice and have the surgery, they should consider everything that I'm about to tell them and then make a fresh new decision considering everything that they've leaned from me.   I tell them that only they can make that decision, I can't make it for them, although I will give them my best advice.  I then go through the entire evaluation process that lead me to the decision to advise them to have the surgery, including the consideration of risk.  I sometimes asked them to put some things, like the HPI and description of Sx in their own words.

I especially always asked them to describe the disability that they are seeking treatment for, in terms of how it is affecting their lives. I ask them questions to document that they understand.

Not once in 25 years did I have a patient ask me to not record the session or even question it in any way.  If they did, I would have politely suggested they see another podiatrist.  Back then we recorded on tapes (how analog !), which got taped to the front of their chart.

I've had colleagues raise some questions about the practice, to call into question what we might not want to have documented during this visit.  To this, I quote the English and say, "bullocks" !  I never wanted a plaintive attorney, through their various cunning devices, to get any judge or jury to believe I didn't fulfill my responsibility to do proper informed consent.  And you now what ?  They never did...

How do you store the recordings and for how long?  DLB

It is indeed illegal to video someone without their consent in the absence of a court order (or police action).   This is why places with surveillance cameras (such as convenience storces) have to post that there ARE camera's.

This kind of thing is a VERY slippery slope -- this can be used against you if you DO miss something during the encounter.  Assuming a practitioner WANTED to video their patient interaction, you would have to either post a notice in the exam room or have the patient sign a separate consent --much like if you were going to utilize clinical photos during a presentation.

I don't see the purpose, nor do I even like the idea, of making recordings WITHOUT the patient's knowledge or permission.  Not only does it dishonor the doctor-patient relationship - it also eliminates one great advantage of making the recording in the first place: if doctor and patient know their conversation is being documented, they'll both be especially careful to say what they mean and mean what they say.  Trust is such an important factor in so much of what we do with patients.  It's been observed time and time again that a strong trust based relationship is the single greatest deterrent that physicians have against being sued.  Why would you want to do anything to weaken that relationship ?  Trust (and guilt - what Einstein identified as the most powerful force in the universe)  are also the most powerful forces we have in getting patients to comply with our treatment plans.

I say record consents and any other sensitive and important conversations that you have with patients, but only after getting their consent. 

To answer Dr. Bates's question:  I recorded on mini-cassettes, the kind that fit in the hand held dictaphones made by Olympus (my favorite), Sony or many other companies.  I would tape the cassette inside the chart.  Today, most sound recording including dictation has gone from analog to digital.  In the case of digital recording, you'd download the sound file and attach it to your electronic medical record for that patient, just as you would do a scan.  And the recording would be kept as long as you keep the record.  I would keep paper charts for 7 years, but with digital files, I'm not sure I'd ever delete them completely...but that's fodder for another discussion.

One of my mentors is a vascular surgeon. He practiced in Tokyo and New York City. He once told me that his informed consent session is as follows; he would look straight into the patient's eyes, then he would tell them, "I have your best interest at heart, so you need to trust me that I would do the best for you. Do you trust me?" He claims he's never been sued. Great story, huh?

As for videotaping the surgical procedures; once I bought Samsung "sport cam" video recorder, with a small camera that straps to my head. It was for the teaching purpose, rather than for the medico-legal purpose. In the end, it was too shaky and un-watchable.

I recall a general surgeon in Kentucky who was successfully sued for the pain and suffering. What he did is "branded" his alma matar's logo (UK for University of Kentucky) to uterus prior to the laproscopic hysterectomy. I guess it is a routine procedure to "brand" the uterus for the orientation purpose. Why couldn't he use an "arrow" or "this way up"? Who knows, but I guess videotaping can clearly backfire on you.

Just my 2 cents... KS.