Episode #223 Navigating Wiretap Laws in Clinical Practice: Insights for Anesthesia Professionals

Hello and welcome back to the Anesthesia Patient Safety Podcast. My name is Alli Bechtel, and I am your host. Thank you for joining us for another show. We are returning to the June 2024 APSF Newsletter today. You may not have learned about our topic today in medical school. It is definitely something that has evolved over time, and of course it has implications for patient safety. We are talking about wiretap laws and the legality of audio recordings. Do you know what the wiretap laws are for the state or country where you are practicing?

Before we dive into the episode today, we’d like to recognize Preferred Physicians Medical Risk Retention Group, a major corporate supporter of APSF. Preferred Physicians Medical Risk Retention Group has generously provided unrestricted support to further our vision that “no one shall be harmed by anesthesia care”. Thank you, Preferred Physicians Medical Risk Retention Group – we wouldn’t be able to do all that we do without you!”

Order in the court. Today, we are going to review different wiretap laws, the remedies or repercussions for violations of these laws, and how these laws may have implications for patient safety initiatives. Our featured article is “Wiretap Laws: Relevance to Clinical Practice and Patient Safety” by Karolina Brook. To follow along with us, head over to APSF.org and click on the Newsletter heading. Fourth one down is Newsletter archives. Then, scroll down and click on the June 2024 APSF Newsletter. Then, scroll down until you get to our featured article today. I will include a link in the show notes as well.

Before we open our law books, we are going to hear from the author. Let’s take a listen.

[Brooks] “Hello, my name is Karolina Brook. I am an anaesthesiologist at Boston Medical Centre in Boston, Massachusetts.  I am also the director of quality and safety for my department and also medical director for quality and safety in hospital-based care for Boston Medical Centre.”

[Bechtel] To kick off the show today, I asked Brook why she wrote this article. Here is what she had to say.

[Brooks] “So back when I was a resident, I actually experienced several incidents where patients or patient family members were recording me. And so, I remember feeling very uncomfortable about the situation.

I and most of my colleagues didn’t know anything about what the laws were regarding audio recording. And so, I started researching the topic, and this turned into the article that we published in the Journal of Clinical Anesthesia about wiretaps and how they vary state to state. I was then further inspired to write an article specific to wiretaps and patient safety and wanted to share that with the greater anaesthesiology community through an APSF newsletter.”

[Bechtel] We are so glad that Brook took an interest in this topic. Now it’s time to get into the article. In the United States, anesthesia professionals need to have knowledge of federal and state laws that may be related to patient safety. Some examples include laws related to public health, the peer review law, and the United States Patient Safety and Quality Improvement Act of 2005. Another category of laws that anesthesia professionals need to be aware of include wiretap laws which may impact routine clinical practice and patient safety. Wiretapping laws or eavesdropping statutes determine the legality of an audio recording made from face-to-face conversations, telephone calls, or other oral or wire communications. Many of these laws in the United States were passed in the 1960s and 1970s when recording devices were not easily accessible. Today, everyone has a recording device in their pocket, their cell phones, with many of the same laws with some amendments and modifications in place.

Keep in mind that wiretap laws vary from state to state in the United States. There are three classifications of these laws: one-party, all-party, or “mixed.” One-party consent requires that only one-party consent to an audio recording. All-party consent jurisdictions require that all parties present consent to the audio recording. If not all parties consent to the recording, then the recording must stop ore the nonconsenting party must leave the area of the recording. What is the breakdown for these laws in the United States? 37 states require one party consent whereas only 9 states have all-party consent. These 9 states include California, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, and Washington. The remaining 4 states have mixed wiretap laws. These states include Connecticut, Michigan, Nevada, and Oregon. Check out Figure 1 in the article for a color-coded map of the United States depicting the different classifications of wiretap laws. The penalties depend on the state as well and may be felonies or misdemeanours with fines ranging from $500 to $100,000, incarceration from 6 months to 20 years, or a combination of both. Civil recoveries range from $100 to $25,000 or recover of civil remedies including damages, attorney fees, and litigation costs.

Healthcare professionals are familiar with the Health Insurance Portability and Accountability Act or HIPAA which is designed to protect patients from being photographed or videotaped. This is different from wiretap laws which apply to the unconsented audio recording of any individual including clinicians. There may be a time when HIPPA and wiretap laws are both relevant, but they often apply in different situations. The authors provide the examples of situations that may be subject to wiretap laws including patients or family members recording clinicians, clinicians recording patients, clinicians recording other clinicians, or non-clinical hospital employees recording others. There is some nuance here because even if a recording is made without appropriate consent, the recoding may still be used in court, but then the recorder would be submitting evidence that they violated the wiretap laws. In addition, hospital policy may help to guide clinicians and patients who may be faced with a recording or request to record, but the relevant state law takes precedence over the hospital policy. Does your hospital allow audio recordings? If the answer is yes, it is important to keep in mind that individuals must still obey the applicable state’s wiretapping laws.

Now that we have built up our knowledge base about the fundamentals of wiretapping laws, let’s turn our attention to impact on clinical work and patient safety. Have you ever been recorded while providing anesthesia care? Anesthesia professionals often work in multiple areas of the hospital and may be exposed to audio recordings in a variety of situations. Patients may desire to make audiovisual recordings of clinic visits, provider instructions (preoperative instructions or postoperative discharge instructions), discussions held during rounds (perhaps when you are following a patient with an epidural in place or in the intensive care unit), or during certain events such as the birth of their child. These recordings may be valuable for patients to improve recall and understanding of complicated medical information and can allow patients to share information with family who may not be present. The benefits may involve improved compliance with medical instructions, improved patient-clinician relationship, and increased trust in the anesthesia professional. These audio recordings may help patients to share an understanding of their medical care and increase support and encouragement from family members.

Another situation when audio recordings can be particularly helpful is for patients who do not share the same language as their clinicians. By recording the interaction and the interpretation, patients can carefully listen to the translations and verify the accuracy of the interpretation.

Since the pandemic, the use of telemedicine and medical transcription services in intensive care units and clinics has increased. The major benefit of these services is increased accessibility for patients who may be remote from care. It is important to recognize that all of these services need to take into account relevant wiretap laws.

Let’s turn our attention to the scenarios that you may hear about on the news. Just like in the community when egregious incidents are recorded, patients and clinicians may desire to record a clinical event in the hospital such as an unprofessional interaction, medical error, or adverse event. There may be a benefit to recording these events if the awareness leads to changes and improved patient safety. Wiretap laws may restrict these recordings, but laws can change. If we look at Massachusetts which has some of the strictest all-party wiretap consent laws, there are challenges to these laws to allow the recording of police. Going forward, we may see that wiretap laws in all-party consent states could be changed to allow recordings of adverse events in clinical situations with the goal to improve patient safety.

The authors provide a couple examples of patient safety initiatives that involve audio recordings. First, when families are allowed to watch surgeries as part of family and patient-centered care. Another example comes to us from the aviation industry and involves the use of an operating room Black Box to record surgeries with the goal to characterize intraoperative errors, events, and distractions. Use of technology and audio recordings in these ways may help to improve patient care and anesthesia patient safety by decreasing medical errors and improving communication. At the same time, it is important to remember that wiretap laws are applicable.

So, what does this look like? Well, if you are in an all-party consent state, legally using an operating room Black Box means that all parties present in the operating room including when the parties change during the course of the surgery or recording. The hospital cannot provide a legally binding blanket consent form. There could be the situation that clinicians who do not consent would need to leave the operating room and be replaced and this has implications given staffing shortages and patient safety concerns regarding handover of care. One option would be to use image recording without audio recording even though this limits the ability to identify and characterize communication errors. The authors remind us that anesthesia professionals in daily practice and as part of patient safety and quality improvement initiatives that involve audio recordings, need to be aware of the relevant state wiretapping laws and the legal limitations of any audio recordings.

Next week, we are going to continue the conversation on wiretapping laws by discussing practical suggestions when audio recording situations arise for anaesthesia professionals. We are also going to hear from the author again. You do not want to miss Part 2, so mark your calendars.

If you have any questions or comments from today’s show, please email us at [email protected]. Please keep in mind that the information in this show is provided for informational purposes only and does not constitute medical or legal advice. We hope that you will visit APSF.org for detailed information and check out the show notes for links to all the topics we discussed today.

Are you attending the upcoming American Society of Anesthesiologists Annual Meeting, ANESTHESIOLOGY 2024 in Philadelphia? You probably have your travel plans all set and you can catch up on any Anesthesia Patient Safety Podcast episodes that you may have missed while you wait to catch you plane or while you are driving to the event. Once you get to the meeting, we hope that you will check out some of the great Anesthesia Patient Safety Talks including:

• The APSF Panel: Medication Errors in the Perioperative Environment- Exploring the Role of Human Factors with moderator, Elizabeth Rebello, on Saturday October 19^th at 11AM in Room 102AB.
• The ASA/APSF Ellison C. Pierce Jr., MD, Patient Safety Memorial Lecture given by Jannicke Mellin-Olsen entitled, “Four thousand years of safety endeavours – why have we not reached zero patient harm?” on Saturday, October 19^th at 1:30pm in Room 114.
• And The APSF Event, Anesthesiology’s Workplace Violence Problem on Tuesday, October 22^nd in Room 114 with Moderators, Della Lin, Alexander Hannenberg, and Randy Steadman. This event includes training in discrimination from 9:15-10:15AM, Incivility from 10:30-11:30AM, and Physical Aggression starting at 11:45AM. You can also check out the APSF Workplace Violence Prevention Portal ahead of time to view the videos and facilitator guides. I will include the link in the show notes.

Head over to APSF.org and click on the Conferences and Events heading. First one down is Upcoming events featuring the APSF for more information about the Anaesthesia Patient Safety Events at Anaesthesiology 2024. We hope to see you in Philadelphia.

Until next time, stay vigilant so that no one shall be harmed by anesthesia care.

© 2024, The Anesthesia Patient Safety Foundation