Surreptitious recording of medical/dental visits by patients

Q. A reoccurring question that we continue to address is a patient’s ability to record medical visits without a providers consent. Recently, we received a call from a physician that was irate after learning that a parent of a young child had been “covertly” recording all the child’s medical visits on their cell phone. The doctor is furious and wants to discharge the patient. Is it lawful to “covertly” record medical visits?

A. Unfortunately for our irate physician, it is lawful to record such visits in the New York State. It is important to understand that different jurisdictions have different laws relative to recording such conversations, some states are “all party,” which means that all parties must consent to the recording. However, New York is currently a “one party” state, which obviously means only one party must be aware of the recording.

Telehealth can complicate this analysis, Florida for instance is a “all party” state. If you have a patient who winters in Florida, and he/she initiates a telephone call from Florida and records the call without the provider’s consent, they may be violating a Florida wiretapping statute.

You can try to limit this practice by banning all cell phones in exam rooms, but it will be extremely difficult to enforce these measures.

It is strongly recommended that you always assume that you are being recorded.