In my risk management courses, a topic I discuss is how to document that you received a patient’s informed consent. In reality, there is a hierarchy of documentation methods. Think of it as a risk management ladder. Based on your risk tolerance for this particular procedure, on which rung of the ladder are you most comfortable standing? One might posit that the highest rung would be to videotape the consultation. That’s great for validating exactly what was discussed and with whom, but it is also great at validating everything that wasn’t discussed. The next rung down might be audiotape, and the next rung down might be to have the patient write his or her understanding of your consultation. We keep stepping down a rung until we reach the lower rungs, which might be a note that the patient was informed of all risks and benefits, down to the last rung that might be no notation at all. You get the picture.

Let’s climb back up the ladder for a second, to the penultimate rung: audiotape. Here’s a question: Can you tape the informed consent consultation without the patient’s knowledge? Hey, I got a better one: Can the patient tape the consultation without your knowledge? Hmm. Like any good lawyer, my answer is that it depends. Give me a break, you say. No really, it depends; it depends on which state you practice in. There are 12 states that are 2-party consent states. In other words, both parties must consent to taping the conversation. The remaining jurisdictions are 1-party consent states. The conversation can be taped as long as 1 party to the conversation gives consent. In other words, there is about a 75% chance, depending on where you practice, that you may be surreptitiously recorded by a patient or a patient’s parent any time you meet to discuss anything; more on this later. How can this be? Let’s look at 2 cases: Caro v Weintraub LLP , docket No. 09-3685-cv, August 13, 2010; and Smith v Cleveland Clinic et al , 197 Ohio App.3d 524, December 22, 2011.

In Caro, Elizabeth Caro was facing imminent death from cancer. Choosing to die at home, she was surrounded by her family. During one of these visits, Elizabeth’s sister wanted her to sign a draft of a will prepared by her attorney husband, Thomas, who was to be the executor of the estate. According to Elizabeth’s husband Marshall, the will ostensibly contained some provisions that Elizabeth didn’t like, and he told his sister-in-law that he had already hired a lawyer to prepare Elizabeth’s will, a document that had different provisions from Thomas’s draft. At some point in the conversation, Elizabeth’s sons entered the room and joined the conversation. One of them, David, unbeknownst to everyone else, placed his iPhone nonchalantly on the table and recorded the conversation. Then the conversation between Thomas and David got quite heated.

As fate would have it, Elizabeth died 4 days later without having signed a will. Marshall filed a petition for letters of administration, which David opposed. At a probate hearing, David said he had a recording of the conversation in the kitchen that pertained to this issue and sought to submit it into evidence. Marshall objected, arguing that the recording was made in violation of state law. The defendants argued that there was no violation because Marshall had no expectation of privacy regarding the content of the conversation (since it was heard by all the others in the room), and since David was a party to the conversation, he was entitled to tape it. The court found for the defendants, allowing the recording, and this appeal ensued.

The law governing this issue is the Wiretap Act, Title III of United States Code §§ 2510-21; it provides that single-party consent is not valid if the “aggrieved individual…had her oral communications intentionally intercepted by a party to those communications for the purpose of committing a crime or tort.” Since no crime or tort was alleged, the recording was legal. Marshall argued that David was not a party to the conversation because he was not invited to participate in it. The court responded that an invitation is not necessary; if he took part, invited or not, he was a party to it. In addition, Marshall argued that the recording was made with the intent to commit a tort, and the tort in question was the illicit recording itself. The court disagreed. Marshall was required to prove that, over and above the recording itself, there needed to be “independent tortious intent” relative to a separate and distinct civil claim. The court quoted another case to clarify what it was saying by noting: “When the taping is legal but is done for the purpose of facilitating some further impropriety, such as blackmail [or stealing business secrets], Title III applies. Where the purpose is not illegal or tortious, but the means are, the victims must seek redress elsewhere.” The court also noted that there is a temporal component to this consideration because, when the offender hits the record button, one must ask what his intent in recording the conversation was. If it was done to promote some future nefarious act, there is indeed a violation of the act, but if the intention was merely to preserve the conversation for uses other than criminal or tortious, then Title III does not apply.

The only tort relative to the act of recording itself is for invasion of one’s privacy. Four types of invasion are generally recognized: (1) an unreasonable intrusion upon one’s seclusion, (2) the appropriation of another’s likeness or name without permission, (3) unreasonably casting one’s private life into the public eye, and (4) unreasonably placing another in a false light before the public. Marshall claimed that his seclusion was intruded upon by virtue of the taping. The problem with this argument is that although it may be a personal affront to learn that you were secretly taped, there were half a dozen other people in the room participating in various parts of the conversation, so there could be no real expectation of seclusion or privacy. Marshall’s claim was dismissed.

In Smith, the decedent’s abnormal blood test results were not reported to the doctor in a timely fashion because of malfunctioning equipment and low staffing levels. The patient went into cardiac arrest and expired about 10 days later. During the time between when he arrested and when he died, the patient’s children met with the chief medical officer (CMO) of the hospital and 2 other staff members to discuss what happened, how it happened, and what their father’s prognosis was. Unbeknownst to the CMO, this consultation was secretly audiotaped by the decedent’s family. During the conversation, the CMO made several sympathetic and apologetic comments and admitted fault on the part of the hospital. During the discovery phase of the malpractice suit that was subsequently filed, the hospital learned of the existence of the tape recording and filed for an order of protection to prevent the CMO from being deposed and, in addition, asking that the tape be deemed inadmissible evidence because any admissions on it were based on peer review findings of the event in question and therefore were protected by statutory privilege.

The court went into significant detail in determining why it found that the admissions and statements made were not part of any peer review process. Although the court’s opinion was instructive regarding information gleaned from peer review activities, what was not in question was the plaintiff’s right to secretly tape and introduce it as evidence if what was divulged by the CMO was not protected information, which in this case it wasn’t because the peer review process had not even started when the comments were made. The court found the taping to be admissible.