Podcast

May 14, 2026

Roetzel HealthLaw HotSpot: Patients Recording Medical Visits: What Health Care Providers Need to Know

Host Ericka Adler is joined by Roetzel shareholder Christina Kuta to discuss the growing trend of patients recording medical visits and sharing health care interactions on social media, and what health care providers should consider before allowing recordings in their practices.

The episode explores HIPAA and privacy concerns, consent requirements, reputational risks, and the legal challenges that can arise when patient recordings are shared online.

Ericka and Christina also discuss why health care practices should consider implementing recording policies and what providers can do when unauthorized recordings or misleading social media posts impact their practice.

To watch the episode on YouTube click here or on Apple Podcasts click here. To listen to the podcast, click here.

Transcript

Ericka Adler:
Hi everyone! Welcome to the HealthLaw HotSpot. I'm Ericka Adler, shareholder, leader of the health care practice at Roetzel and Andress. I'm joined by Christina Kuta, who's also a shareholder and a member of our practice group, and today we're going to talk about a topic that comes up so often. It has to do with patients who are engaged in social media, and the rights of the practice and the obligations of the practice when it comes to allowing content to be recorded within the practice or otherwise participating in social media. So, let's start first by just kind of talking about a couple of the scenarios where this is arising. What are you seeing, Christina?

Christina Kuta:
So, we live in a social media conscious world right now, and it has definitely hit the area of medicine and health care practices. What we have seen definitely proliferating over the last few months are a lot of requests from patients that want to video record procedures, or video record interactions with their providers. And they want to post those videos to social media, whether it's to show, hey, I got this great new surgical procedure today and look how fabulous I look, or just to educate people on certain health conditions. But it's definitely patient-driven to want to record and then disseminate publicly these videos and information related to receiving health care services.

Ericka Adler:
All right, so I know when a practice is doing its own social media and wants to take video or use photos of patients, we follow very serious protocols with patient consent and HIPAA, etc. Here we're talking about the opposite side: we've got patients asking to record. So, what are the legal issues that we need to consider in this instance?

Christina Kuta:
HIPAA's still a huge issue. A medical practice cannot allow someone to record if that recording is going to expose or disseminate another patient's protected health information. If I'm a patient and I want to record, I control my PHI; I can consent to having my PHI disclosed. 

But you can imagine, if I'm a physician allowing a patient to record in an office, or record when they come in the waiting room, and when they go back to the spot procedure room, or an exam room, there's going to be other people on that video, all who are patients, and a face is someone's PHI. They can be identified. There may be files or names outside of a room that describe who someone is or identify them in some way. You know health care practices are full of PHI, and even though a health care practice has a duty to limit the availability and disclosure of PHI and the visibility of PHI, it's still there. Your name is called out in a waiting room, those things are allowed, because otherwise we wouldn't be able to have an operating health care practice. So, PHI still is an issue. 

Another issue is consent to a recording, audio or visual. Some states are what we call two-party consent states, meaning that you just can't record someone if there's an expectation of some privacy. You can't just record someone, either video or audio, without their permission. So, make sure that if you're going to allow a patient to record something, that anyone on that recording, either their face or their voice, will be consenting to that, and that that consent is documented appropriately. 

Another concern is when information gets published- again, we have patients that have requested that a lot of the practices we work with allow them to record, and those patients want to publish that recording to social media- even if HIPAA-protected information is not recorded in a video, it's possible that the patient could be recording other information the practice wouldn't want disclosed. Maybe proprietary business information, or just general confidential information about their practice that they wouldn't want disseminated out to the public. So, these are some of the more significant considerations and legal issues with this type of activity.

Ericka Adler:
Right. And I guess we also need to think about other employees in the practice. The doctor may be asked to be on the video, but if nurses or MAs or whoever is captured, they also need to consent. I mean, it's their name on there as well. And some people might be wondering, well, people videotape stuff and put it on social media all the time (videotape, showing my age there). I record stuff all the time, you know, out on the street, whatever. But there's a big difference between being out in public, where you don't have a reasonable expectation of privacy, and when you're in a doctor's office. And I think that's something that many average people who love to post everything on social media may not necessarily understand. Even the difference between going into a restaurant versus being in a doctor's office, right? And those are important differences that the average influencer may not be understanding of.

Christina Kuta:
Absolutely.

Ericka Adler:
Right. Okay, so, somebody comes in they ask to be able to do this, or maybe you're just anticipating somebody's going to come in and ask to do this. What should practices be doing?

Christina Kuta:
The first thing I would say is establish a policy. Think about, as a practice, what your policy is on this, and make sure it's reported to your patients. The safest approach, and the approach I personally recommend to clients, is to have a no-recording policy, and to let patients know that there is no recording allowed in the practice. If you're going to allow them to record maybe their own medical interaction privately with a doctor, that's one thing, but there should be no recording in public spaces, hallways, waiting rooms, anything like that. Patients should be informed of your policy. You should post signage in waiting areas and treatment rooms explaining the policy in brief. So that would be the first thing to think about. 

If you're allowing a patient to record their own interaction with a physician, make sure there's no visible PHI or anyone in the video hasn't consented. You want to make sure that there isn't a way where information about other patients can be overheard in the video. You really have to take steps to make sure that that video does not contain PHI or any other HIPAA-protected or any other confidential information. If a patient wants to publish a video, one of the things I have had a few providers, do in the past is request to view the video first to confirm what information's being published, confirm it's what was consented to be recorded, and to sort of double check that there is no PHI, and there's no other confidential visible in that video.

Ericka Adler:
Right. Now, that assumes every step of the way that patients are going to do the right thing, which is talk to you ahead of time. Plenty of patients, you know, record without permission, whether audio or video, and you may not even know they're doing it. Maybe something happened in the room with the doctor, or maybe even they have a dispute at the desk when they're leaving about what they're being charged and suddenly they're recording the whole interaction on video. I mean, these things happen all the time. What can be done at that point?

Christina Kuta:
If you find, as a provider, that someone has posted a recording of which you weren't aware, or you think perhaps violates the law or confidentiality rules, I would reach out to the patient and ask them to delete and take down any recording. If you see a patient recording in the office and they don't have permission to do so, ask them to stop and delete the record. I'll tell you that oftentimes, people will do that. They may not be happy about it, but they will do that. 

But there are times where you'll have patients that won't do that. They'll say they have a right to post it, or, like you said, there's some dispute and they're mad at you for some reason, and they want to not comply with a reasonable request. At that point, it unfortunately often becomes necessary to involve knowledgeable legal counsel who can help you navigate the legal system, which can actually compel someone to take down a video or to not record. 

If you have patients that refuse to comply, if they're coming in and they're saying, no, I want to record, and you say, we have no recording policy, it may be required for you to terminate that physician-patient relationship. Of course, in a proper manner, making sure it doesn't constitute patient abandonment, but it may be necessary to have that patient not be part of your practice. If HIPAA's breached for any of these issues, if you find that there was a HIPAA breach, somebody recorded something they shouldn't have, published it, and another patient's name is in the video, or something of that effect, you have to look at what HIPAA requires. You may need to make requirements for breach notifications to the patients whose information was disclosed or even the Office of Civil Rights related to a HIPAA breach.

Ericka Adler:
Now, one of the things that I think is true almost 100% of the time is that when you have patients doing sneaky things like this, recording without permission, especially if they know they shouldn't, and posting it, it is usually not something that is a positive post, right? It is usually not something that is going to surprisingly bring lots of new patients and positive publicity to the practice. In fact, it is most likely something that is harmful to the practice, hurts its reputation, negative, often false, misleading, etc. And Christina and I have dealt with many of these cases, particularly a huge increase in the past year or two, of patients either recording stuff in the practice and then later posting, or simply leaving the practice and posting information that's improper, misleading, you know, blatant falsehoods. 

All of these involve situations where you really very quickly need to perhaps reach out to the social media sites to get stuff taken down if the patient won't cooperate, and very quickly involve legal counsel to help, because reputational harm is a huge topic. We've covered it before on our podcast, and we'll be covering it again, because the number of cases is just exponentially increasing. And I feel like this topic, which is much more a collaborative topic, is still just on the fringe of the bigger problem, which is, you know, people just doing things without permission to hurt a practice.

Christina Kuta:
Absolutely, and I think, because we live in a society now where anyone can say anything about anyone else, whether it's truthful or not, and disseminate that truth or untruth very broadly and quickly, the health care industry is sort of seeing the downside of that, unfortunately. And unlike other industries, like if somebody goes on social media and says they had a horrible checkout experience at Target, Target could come back and say, well, this is actually what really happened here, and you're lying about the interaction. That can't happen in the health care business because of HIPAA constraints and confidentiality laws. Practices aren't allowed to just come back and say, no, this person's lying, let me tell you exactly what happened. 

And unfortunately, we also live in a society where people are quick to believe people without thinking about whether someone is telling the truth or not, or not having any evidence to support what they're saying. So, we are definitely seeing issues with physicians who have people that have, for whatever reason, decided they want to harm their business. And want to hurt their reputation, and have blatantly made up information, or twisted information, to make it look very bad for a health care provider. And that's impacted the health care provider's practice. And there's not so much that can be done about it, although there are some legal avenues. As you've indicated, we've discussed that in some prior podcasts, and I know as we move forward, we'll have some more discussions about what practices can do if they do experience an issue of reputational harm.

Ericka Adler:
Right. So on this topic of allowing patients to record in the practice, is there anything else you want to add?

Christina Kuta:
Yeah, one of the things I would consider is, if you're going to allow patients to record, even their own interactions, you'd maybe want to check with your malpractice carrier to see what their opinion is, and see if there's any prohibitions. On doing that, or if they have any recommendations not to allow that, you can envision a scenario where a patient wants to record, and maybe something happens, that wasn't necessarily the standard of care, or there's an issue, and now you have a recording of something that maybe you initially wouldn't have wanted recorded. So your malpractice carrier may have some advice for you. 

I know there's some practices, particularly aesthetic medicine practices, that see this to some extent. Good publicity for their practice because they're changing people's looks or appearance, hopefully for the better, and social media influencers can reach a lot of people and can actually sometimes be helpful to a business. So, if you're considering that in certain type of medical practice, I would really think about the potential legal implications. Like you indicated, Ericka, if the patient gets mad at you for some reason- there's a bill they received that they didn't think it was going to be that much money- and now they want to try to use a video in a way that was intended to be used positively and now is going to be used negatively as a weapon, those are things that you want to consider before you think that social media would be helpful to your reputation.

Ericka Adler:
Right, absolutely. And so, you know, lawyers can really help you kind of frame those relationships with patients. If you do want to let a patient go in and record, consider a written contract, maybe, between the parties explaining when and how it can be used, and as Christina mentioned, being able to see it before it's put out there- that there can't be any later editing that might twist things around, et cetera. So, there's a lot to think about. This is a really interesting topic, and as social media continues to grow, if it can grow any more than it has, and impact medical practices in particular, this is a topic that we expect to come up frequently.

Well, thanks for joining us. If you have any questions, please feel free to reach out to me or Christina, and this has been the HealthLaw HotSpot. We'll see you next time.