Buffalo, NY asked in Employment Law for New York

Q: Is it legal for the Dr to record patients and employees without their consent? Is it a HIPAA violation?

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1 Lawyer Answer
V. Jonas Urba
V. Jonas Urba
  • New York, NY
  • Licensed in New York

A: HIPAA protects patient identifying information and medical information associated with patients from being shared with others who are not authorized to view or listen to that information.

New York State is a one party consent state when it comes to recording anyone. You may recall a now well known attorney who recorded conversations with his clients. Most of us don't do that but there is nothing preventing us from doing so under two conditions.

1. I do not record my clients or prospective clients, have never done so, and dont expect to do so in the future. I would have to consent with myself. Before recording I would need to be aware of an upcoming conversation that I anticipated with some person meaning that I had the capacity to know what I was doing in recording. Most professionals know that recording patients or clients is unusual and very serious given confidentiality requirements.

2. Second, if a recording exists then the professional must take all reasonable measures to keep it confidential unless production is court-ordered or a client or patient has consented, often by pursuing some legal remedy. Unclean Hands Doctrine is a legitimate defense.

Courts strongly presume that patients are very honest with their physicians. Why wouldn't they be?

If someone has a cough that won't go away wouldn't they tell their physician that they took up smoking again even if they deny doing so to friends and close family?

Most patients and lawyers' clients know that being completely truthful gets the best results.

With the strong presumption of truth to professionals anyone who voices objection after discovering recording might have a credibility issue. Not truthful to a physician? Who else were they not truthful with, especially in legal matters?

The lawyer in my above example who recorded knew that his client wouldn't recognize the truth if it smacked him. Hopefully that's not what this physician will think if a recording objection is now raised.

HIPAA applies for unauthorized disclosures. The law searches for truth because without it what's left? Good luck.

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