Be Careful Who and What You Are Recording

by: Thomas J. Weber

I have faced a number of questions regarding the propriety of utilizing recording devices to memorialize conversations or events. One such question involved using a tape recorder to record interaction with a troublesome patient. The dentist had a concern that the patient may later complain regarding the interaction and/or treatment rendered and, therefore, the dentist wanted a recording of the conversation to refute any inaccurate accusations made by the patient.

In addition, I have received questions regarding business entities that offer a service of secretly recording telephone calls to the office receptionists so as to provide feedback on how the receptionists may better interact with potential new patients. I have also had involvement with an office partner who has secretly recorded his partner in anticipation of a practice breakup. Finally, I have learned of individuals routinely recording their telephone conversations.

Both the federal government and Pennsylvania have laws prohibiting the intentional interception and/or recording of private conversations without the consent of the participants to the conversations. These laws are frequently referred to as wiretapping laws, and Pennsylvania’s can be found at 18 Pa. C.S.A. §5701 et seq. Although there are numerous sections and specific provisions contained in Pennsylvania’s wiretapping law, generally speaking, it makes it a felony of the third degree to record someone else’s conversation without their consent. The law also serves as the basis of a civil action for its violation. Pursuant to this law, the scenarios identified above would violate the Act.

I believe the businesses that offer the service of evaluating the telephone skills of a receptionist take the position that since the telephone is owned by the practice, the receptionist does not have an expectation of privacy and, therefore, the recording does not constitute a violation. This position is not consistent with Pennsylvania’s wiretap law. The use of answering machines does not violate the law since the caller is the one who elects to leave a message thereby giving his or her consent to the recording.

So as to ensure that one does not violate the wiretapping law, any time the recording of a conversation is desired, you should obtain the consent of all participants. Ideally, this consent should be recorded at the beginning of the taping. Likewise, if you desire to record association, local or committee meetings, all participations should be made aware of the taping, and if possible, the taping device placed in plain sight.

In the event there is a strong desire to generally record patient interaction in the office, it would be possible to prepare a form that alerts patients that due to the office’s desire to ensure the appropriateness and integrity of the treatment rendered, that surveillance cameras and tape recorders might be utilized. The patient should then be asked to sign such a notice, and a copy of the same maintained in the patient’s record. (Similar to the practice with the HIPAA Privacy Notice.)

It would also be advisable to post signs throughout the office that surveillance and voice recordings may be utilized to protect the safety of the patients and maintain the integrity of the treatment. However, before adopting such an approach, I would consider the potential adverse impact this could have on the practice due to patient’s possible perception that it constitutes an invasion of their privacy. Furthermore, the existence of tape recordings may not always benefit the recorder. The practice did not work out to well for the late President Nixon.

If you have a concern about a disruptive patient, you could ask for their permission to record the visit. You could also have another office staff person attend and act as a witness. Additionally, if you are this concerned about a patient’s motives and possible actions, you could simply dismiss this person as a patient. Before taking this step, make sure your dismissal would not constitute abandonment as defined in the dental regulations. (49 Pa. Code §33.211(a)(4) withdrawing dental services, often a dentist-patient relationship has been established so that the patient is unable to obtain necessary dental care in a timely manner.)

In summary, in the event you feel a compelling need to record any interaction with another individual, you need to obtain that individual’s consent. Additionally, you should have some evidence confirming that, in fact, the consent was given whether it is an acknowledgment on the recording itself or a signed authorization.

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