Episode #224 Staying Legal: Recording Conversations during Anesthesia Care

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. Go ahead and turn on your recorder because we are returning to our conversation about wiretap laws and the legality of audio recordings.

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

Our featured article once again today 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.

Let’s do a quick review from last week. Remember, 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. It is important to remember 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 or the nonconsenting party must leave the area of the recording. The majority states require one party consent with 9 all-party consent states and 4 states with mixed wiretap laws. Check out Figure 1 in the article to see what the laws are in your state of residence and also your state of practice. Penalties for violating wiretap laws depend on the state and range from felonies to misdemeanours with fines from $500 to $100,000 and incarceration from 6 months to 20 years, or some combination.

There may be some benefits for making legal audio recordings in the perioperative space. Audiovisual recordings of clinic visits, preoperative and postoperative instructions, intensive care unit round discussions, and during special events such as child birth may help improve recall and understanding of complicated medical history, strengthen the clinician-patient relationship, and increase trust in the anaesthesia professional.

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 translation and verify the accuracy of the interpretation.

Audio recordings in healthcare facilities may document unprofessional interactions, medical errors, or adverse events and awareness of these events may lead to changes and improved patient safety. The important takeaway for anesthesia professionals in daily practice and during patient safety and quality improvement initiatives that use audio recordings is to be aware of the relevant state wiretapping laws and the legal implications and limitations of any audio recordings.

And now it’s time to get back into the article, right where we left off. This is the time to lace up your sneakers because we are going to go through several practical suggestions. Without awareness of wiretap laws, it may be easy to believe that the intention behind the recording makes a difference. If the recording is made with good intention, perhaps for personal use or to capture and then later report a medical error, an adverse event, or a hostile interaction, that does not mean that the recording is necessarily legal. It requires obtaining appropriate consent  prior to making the recording in accordance with the state’s wiretap laws. The author provides the example of a high school student in an all-party consent state who recorded a bullying incident and presented the video to the school principal. The high school student was charged with violating the state’s wiretap laws. The charges were later dropped but even with the best intentions, it is vital to be aware of the wiretap laws and the requirements for appropriate consent. In the busy perioperative environment, it may be difficult for anesthesia professionals confronted with audio recordings to obtain timely legal help. This is why a knowledge base of how your state’s wiretap laws affect audio recordings is vital and can help guide your response to certain situations. Perhaps, you don’t mind be recording after the birth of a child during a c-section, but there are other clinical scenarios where you would not consent to being recorded.

Let’s take a look at several hypothetical situations where wiretapping laws may apply with recommendations for how to react based on multiple factors including educating all present about the law, allowing those involved to make a decision regarding their legal rights, and maintaining the patient-clinician relationship.

Here’s the first situation:

“You are the anesthesia professional wheeling a patient into the operating room. You notice a film crew videotaping you as you walk in. When you inquire about the filming, the surgeon informs you that they are there to film the entire surgery, including aspects of the anesthesia care “to improve safety.” They’ve “already obtained consent from everyone,” but this is the first time you are learning about this.”

Here is the second situation:

“You are placing an epidural for a laboring patient. The significant other has remained in the room, as is customary at your institution. As you complete the procedure and prepare to administer the test dose, you look up and notice the significant other is standing to your side and is holding up their cell phone which is pointed at you. You ask whether they have been filming, to which they respond uncomfortably that they are not, and put their phone away.”

Now, time for the third situation:

“You are seeing patients via telemedicine in your chronic pain clinic. You discuss the use of medical transcription services with your next patient. They provide consent to being recorded, after which they ask if they, too, can record the clinic visit for their own personal use.”

Here are the author’s suggestions:

The first step if you are aware of a video recording, which occurred in all three of the situations, the author recommends verbalizing that the recording is occurring. In an all-party consent state, the next step may be to inform all present that every person has to consent.

Here is an example for what you may want to say: “I see that you are recording. In our state, everyone present has to consent to recording. I do or do not consent to recording.”

If all parties do not consent to being recorded, either the recording has to stop, or those who do not consent have to leave the area. If you feel uncomfortable with being direct, then you may find it useful to cite hospital policy if one exists at your institution: You could say this: “It is hospital policy not to allow video recordings.” While citing hospital policy can be helpful to diffuse an uncomfortable situation, bear in mind the hospital cannot consent on others’ behalf. Remember, this is what was asserted in Situation 1.

In the situation where the individual is lying about recording or is secretly recording like in Situation 2, it can still be helpful to state whether you do or do not consent to being recorded. While the recording may be admissible in court, the individual may be deterred from doing so as they would be submitting evidence that they may have violated a state law especially if you are in an all-party consent state.

If you are in a one-party consent state where the recording individual has the right to record even without everyone’s consent, it may be helpful to explore the reasons why the individual is pursuing the recording. This may be helpful in Situations 2 and 3. Then, you may be able to suggest alternate ways to provide the person recording the situation with this information.

In the situation of medical transcription like in Situation 3, the author recommends similarly informing all parties about the recording and obtaining consent from everyone, particularly since the parties may be in different states, which could include an all-party consent state. Depending on the locations of the patient or patients and the clinician or clinicians, one-party or all-party wiretap laws may apply.

Anesthesia professionals must decide whether they feel comfortable consenting to a recording. The relationship with the recording individual is an important aspect to consider. There may be alternative ways to provide the same information without an audio recording. In addition, how likely is it that the audio recording ends up in court? Once you consent to being recorded, anything that happens with that recording after that is out of your control even if it is used in litigation.

The author provides a graphic to help you remember the key points! It starts with the question, what do you do? You notice a film crew videotaping you in the OR. They have already obtained consent from everyone, but this is your first time learning about this. Or You notice a significant other is filming you place an epidural. They respond uncomfortably they are not, but you are sure they are. Or You discuss the use of medical transcription services with your next patient and they ask you if they can also record. Remember, wiretapping laws vary state by state and every clinician should know their state’s laws to protect themselves, their staff, and their patients.

We made it to the end of the article and it is almost time to turn off this recording. We hope that these scenarios are helpful in your day to day practice, but with improvements in technology, there may be even more situations where wiretapping laws are applicable. The author leaves us with this call to action:

“In the daily practice of anesthesiology, and additionally in considering initiatives that may involve audio recording, all anesthesia professionals need to be aware of wiretap laws, how a particular state’s laws may impact the legality of any audio recordings, and the potential criminal punishments and civil remedies that can be imposed for violations. Unless a major overhaul of United States wiretapping laws were to occur, it is imperative that all anesthesia professionals are knowledgeable about the multitude of situations where wiretap laws are or could be applicable, and how they would react to these scenarios.”

Before we wrap up for today, we are going to hear from Brook again. I also asked her what she hopes to see going forward. Let’s take a listen to what she had to say.

[Brooks] “I hope that through increased awareness of the importance of wiretap laws and their implications for patient safety, that most clinicians practicing anesthesiology can feel empowered through this increased knowledge about the laws in their state.  I hope that anesthesiologists can take the front line in teaching and educating not only other clinicians, but also patients about their rights with regard to wiretap laws.  There are so many implications for patient safety with regard to wiretap laws, and I hope that people read this and realize how relevant it is to so many different things that they do, whether it is seeing patients in the clinic, doing telemedicine, or even just regular interactions with patients on a day-to-day basis.

There is so much. information  that people should be aware of when it comes to wiretap laws. And so, I hope that the APSF article will draw attention to the topic and hopefully people will also be able to see the original article in the journal of clinical anesthesia so that they can know in more detail the intricacies of wiretap laws and how they vary state to state.”

[Bechtel] Thank you so much to Brooks for contributing to the show today. This is an important opportunity for anesthesia professionals to increase their knowledge about wiretap laws as they continue to work to keep patients safe during anesthesia care.

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