February 25, 2021

QUESTION:        A physician called requesting a patient transfer to our Hospital.  We would like to start recording these types of calls for patient safety and quality purposes.  Does the hospital have to obtain the callers’ consent prior to recording these communications?

ANSWER:           The hospital’s obligation to get a caller’s consent prior to recording the communication depends on whether the hospital is located in a “one-party consent” or an “all-party consent” state.

One-party consent states allow a person to record so long as they are a party to the communication and consent to the recording.  In this case, the physician making the call does not have to be informed that the call is being recorded since the physician receiving the call has already provided the necessary consent.  The hospital may, as a courtesy, include an automated message at the top of the call that informs the physician making the transfer request that the conversation will be recorded.

On the other hand, states that have adopted “all-party consent” recording laws prohibit the use of devices to record absent the consent of all parties involved in the communication.  Therefore, if you find yourself in an “all-party consent” state, then the hospital will be required to disclose that it is recording the call prior to the start of the conversation.

When deciding whether and how to record patient transfer calls, keep in mind that the hospital is obligated under the HIPAA Privacy Rule to protect patient health information shared during these communications.  Therefore, it is important that the hospital determine how it will record and how it will store these communications.  If, for instance, the hospital decides to contract with another entity to record and store these communications, then the entity will likely be furnishing business associate services.  In this case, it would necessary for the hospital and the entity to enter into a business associate contract to ensure that the entity is safeguarding these communications in a manner appropriate under HIPAA.

May 24, 2018

QUESTION:        A physician new to our staff has taken it upon himself to personally “investigate” potential patient safety issues; he says that the medical staff committees are “useless.”  He is not a member of any peer review committee.  What can we do?

ANSWER:            He should be counseled and advised (in writing) of proper channels for expressing his concerns.  He should be asked to provide specifics so the matters can be reviewed.  It is reasonable for hospital and medical staff leaders to develop a statement of expectations, which can be placed into the bylaws, credentials or peer review policy, or adopted separately, requiring that all medical staff members and privileged practitioners cooperate constructively in the peer review, patient safety and performance improvement processes. Careful procedures must be followed, to track any state peer review protection statutory requirements.  It is also a fundamental principle of professionalism and respect that any practitioner who has concerns about hospital policies or other practitioners’ performance should take those concerns through appropriate channels. Otherwise, the practitioner raising these concerns could open himself or herself up to defamation claims by other practitioners whose care or practice he or she has criticized.

The peer review process depends on the willingness of all privileged practitioners to cooperate constructively. Having this responsibility set forth clearly in writing can be very helpful in the event a practitioner continues to act out inappropriately, and thus place the organization and medical staff leaders at risk. In the event an adverse action is necessary, it is best to have a solid written record that leadership reached out to the physician and provided specific directives as to avenues for presenting quality and safety concerns.  If the practitioner persists after the counseling and written follow-up, he or she could be placed on a performance improvement plan or conditional continued appointment. That way, if this practitioner decides to sue, it will be easier to defend the claim because he or she will have brought about the action by his or her own conduct.  You should, however, look into all the issues the practitioner has raised, through appropriate mechanisms.