RISK MANAGEMENT


When a Patient Wants to Record Conversations and Procedures


by MARC R. LEFFLER, DDS, ESQ. R


ecording events with friends and family members is an entirely commonplace happening in many people’s daily lives, with


some of those recordings ending up on social media platforms. The same might be said for conversations in general, albeit to a much lesser extent. So, it isn’t beyond the realm of likelihood that patients might want to record dental procedures and con- versations with their dentists, for a variety of reasons. Here, we will explore a number of issues relating to recordings in dental offices, with the underlying caveat being that, although legal concepts are discussed, this article is not meant as legal advice, but rather as a dental risk management tool; formal legal advice should be obtained only from attorneys licensed in Missouri.


An initial point to address is the fact that Missouri is a “one-party consent” state when it comes to recording conversations, which means that only one party to any given con- versation must consent to its being recorded in order for that recording to be lawful. In this context, that concept comes into play when a patient surreptitiously records a con- versation between a dentist (or hygienist or dental assistant) and that patient. Whether the recording of a dental procedure falls into the same category as the recording of a conversation is murkier and likely subject to specific court rulings, but for the purposes here, we will go by the created assumption that both follow the one-party rule, thereby taking the legality question away.


To state the obvious, dental offices are places where patients get healthcare treatment, so those offices are subject to the privacy protection constraints set forth by HIPAA.


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Because patients in dental offices might be physically close to one another, and because audio and visual recording devices can be extremely sensitive to picking up sights and sounds, dentists are obligated to take reason- able precautions against the invasion of any patient’s privacy rights, and such an inva- sion might occur if Patient A records their own conversation with the dentist but that recording device also “picks up” a conversa- tion between Patient B and their dentist in an adjacent treatment room: Patient B might well point an accusatory finger at the dental office for not protecting their privacy, by hav- ing allowed Patient A to record, if the office staff was aware of that recording. So, from a privacy/HIPAA standpoint alone, allow- ing recordings should be seen as elevating a dentist’s risk exposure, making that dentist more likely subject to a HIPAA violation or a privacy-violation-based Dental Board inquiry and possible sanctions.


Now, let’s suppose that a dentist consid- ers recording a particular conversation — such as a treatment plan proposal or an informed consent discussion — even in an environment where the privacy of all is protected.


In the informed consent process, for example, there is ideally a back-and-forth between dentist and patient during which the goal is for the dentist to make the pa- tient an informed consumer, so that they know the foreseeable risks, benefits and alternatives before making decisions about undergoing treatment. In this setting, recording such a conversation can be a real positive, effectively serving as an amplified signed consent form, because a patient later claiming during a malpractice lawsuit that they were not told of a particular risk can easily and successfully be confronted with the recording, proving that the risk was explained and that they voiced under- standing.


On the other side of the coin, if the dentist being recorded during that process were to forget to transmit a particular risk to the pa- tient, or if the dentist did not view that risk as important or common enough to disclose, and that risk were to come to fruition, that would make the dentist’s position virtually indefensible if a suit were to arise, because irrefutable proof of the omission would exist.


The same set of issues exists for the record- ing of dental procedures. While dentists might wish to show recordings of procedures they perform on their websites or social media platforms or when presenting case studies to dental groups, that is an excellent way to promote and build a practice … if the procedure goes as planned. But if a mistake occurs and that leads to an injury or other


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