Recording What Anesthesiologists Say in and out of the Operating Room

“Don’t put anything in an e-mail message or on Facebook that you wouldn’t want to see on the front page of the New York Times.”  We have all heard that warning many times.  In the wake of a widely-reported malpractice and defamation judgment awarded by a Virginia jury to a patient whose anesthesiologist made unpleasant statements to colleagues during the patient’s colonoscopy, one wonders whether the warning should be updated to read:  “Don’t say or write anything negative about anyone, anywhere, or you may be sued.”

This case was noteworthy not merely for the contempt with which the doctor talked about her patient, but also for the fact that the conversation in the procedure room was recorded by the patient’s smartphone, which neither he nor the medical team realized had been left on.  The patient claimed he had inadvertently left his phone in the room, set to record, having neglected to turn it off after recording instructions for post-operative care. 

Recording instructions for post-operative care, however, seems like a worthy use of a cellphone.  This question has come up occasionally in the context of recording visits.  The American Medical Association’s Ethics Standards Group considered the issues involved in a patient using his or her phone (or iPad) to record the conversation at a doctor’s visit in a 2012 amednews.com column entitled Pros and cons of letting patients record doctor visits.  First the author addressed the legality of such recordings, noting that federal law and the law of many states, including Virginia, requires that only one party consent to the recording.  The bulk of the discussion centered on the benefits of recording, notably enhanced patient understanding and retention of information, and on the drawbacks.  The latter included the inhibited communication on both sides if they were conscious of being recorded as well as possibly increased temptation to practice defensive medicine and confidentiality concerns.  The author suggested an interesting compromise:

A middle path that could avoid these risks while preserving the benefits might be to record only the beginning and end of the visit, leaving out the physical examination and providing patient and doctor with some privacy to discuss matters that should not be shared. In this case, the patient and physician would decide together what is to be recorded. Perhaps the taped record would include only the patient’s discussion of symptoms (to let him or her discover later whether everything was presented to the doctor) and the physician’s summary of instructions, explanations of prescriptions, follow-up appointments and so on.
The new “clinical summary” documents provided to patients through many electronic health record applications include a list of medications, physicians’ recommendations and other summary information. A video or audio recording could complement this excellent new patient tool, especially in cases where a patient’s literacy was limited.
Adapting this “middle path” to the endoscopy suite or the operating room would fit in with anesthesiologists’ efforts to become perioperative care leaders.  A recorded discharge summary could be a valuable adjunct to postoperative care.  What transpired in the Virginia endoscopy center where the anesthesiologist’s hostile words were preserved for the jury had nothing to do with the patient’s well-being, of course.  Calling the anesthetized patient a “wuss” and a “retard,” comments made to him such as “After five minutes of talking to you in pre-op I wanted to punch you in the face and man you up a little bit” (Greenberg A. Anesthetized Patient Accidentally Records Doctors Insulting Him During Surgery, Time, June 24, 2015) and a deliberate addition of a false diagnosis of hemorrhoids purely to embarrass the patient (Ault A. Anesthesiologist Loses Lawsuit for Mocking Sedated Patient.  Medscape, June 29, 2015) were indefensible.  In fact, the American Society of Anesthesiologists took the unusual step of expressly denouncing the alleged conduct of the physician anesthesiologist in questions, noting that she was not an ASA member and directing readers to the Guidelines for Ethical Practice of Anesthesiology, which include the following:

Anesthetized patients are particularly vulnerable, and anesthesiologists should strive to care for each patient’s physical and psychological safety, comfort and dignity. Anesthesiologists should monitor themselves and their colleagues to protect the anesthetized patient from any disrespectful or abusive behavior.
The patient sought $1 million in compensatory damages and $350,000 in punitive damages for defamation, infliction of emotional distress and illegally disclosing his health records.  Following a three-day trial in Fairfax County, the jury awarded him a total of $500,000:  $100,000 for defamation, $200,000 for medical malpractice, and $200,000 in punitive damages of which $50,000 was to be paid by the anesthesiologist’s practice and $150,000 by her personally.

The case is a sad one on many levels.  The patient who brought the action clearly suffered.  A mid-career anesthesiologist’s career is in tatters; she is no longer associated with the practice that defended the lawsuit and it appears that she promptly resigned from the medical staff of the Orlando-area hospital where she had been working more recently.  It was reported across the mainstream print and broadcast media, doubtless doing harm to the doctor-patient relationship in many offices and ORs.  Gabriel Perna, a senior editor for Healthcare Informatics wrote on their blog:

I think it speaks to the innate challenges we see in the evolving doctor-patient relationship. That is, many doctors still look down on us patients.
I’m sure 99.99 percent of doctors are not as outwardly malicious as Ingham, but that condescending attitude is not something that can be dismissed entirely. It’s still there and it’s the biggest barrier to patient engagement.
As Mr. Perna notes, information technology can and should be used to strengthen patient engagement.  Portals and well-designed websites can help to make sure that patients have the information that will make their medical encounters as productive as possible.  Tools that foster engagement (such as ABC’s ePREOP) are a small but important step in closing the information gap.