Ambient clinical audio recordings that physicians use to help create their final clinical notes serve an “administrative purpose” and a Washington state patient doesn’t have a legal right to the recording, a trial court judge there ruled.
The recent decision is a win for physicians and is believed to be one of the first cases in the country to consider the augmented intelligence (AI) technology that physicians are increasingly using in their exam rooms to help them save time with notetaking and allow them to spend more time facing their patients instead of the computer.
The Litigation Center of the American Medical Association and State Medical Societies joined the Washington State Medical Association (WSMA) and the Washington State Hospital Association (WSHA) in filing an amicus brief explaining to the court the importance of categorizing ambient documentation systems no differently than dictation, handwritten notes and other aids that help physicians create the final medical chart for a patient. All these aids should be protected from litigation discovery.
“Ambient AI simply updates that same process with new technology, but the distinction between the record of care and the process of producing that record is not changed,” the amici wrote in the brief they filed in the case, Raphael v. Mantei, in Washington’s Clark County Superior Court.
Finding otherwise would have expanded Washington’s medical records law, the amici said, allowing patients to access “a new type of preliminary, technology-generated temporary material used to begin the process of creating those [medical] records, material which does not contain a practitioner’s professional judgment.”
From AI implementation to digital health adoption and EHR usability, the AMA is fighting to make technology work for physicians, ensuring that it is an asset to doctors. That includes the AMA Center for Digital Health and AI, which works to ensure physicians help shape how AI is developed, implemented and regulated across the healthcare system, with patient safety and physician-led care remaining at the center of those efforts.
New technology, new challenge
Washington’s Uniform Healthcare Information Act says that Washington patients have a right to obtain healthcare information from a healthcare provider, stating that “upon receipt of a written request from a patient to examine or copy all or part of the patient’s recorded healthcare information, a healthcare provider, as promptly as required under the circumstances, but no later than fifteen working days after receiving the request shall: (a) Make the information available for examination during regular business hours and provide a copy if requested, to the patient.”
But the act also provides exceptions to that right, including “if the healthcare provider reasonably concludes that … the healthcare information was compiled and is solely for litigation, quality assurance, peer review or administrative purposes.”
Patient Gail Renee Raphael claimed that an ambient clinical recording of her telehealth visit with a physician at The Vancouver Clinic earlier this spring didn’t fall under that exception.
She asked the court to—among other things—give her access to the recording of her telehealth visit in which she and her physician discussed the physician’s unsuccessful attempts to find a treating rheumatologist for Raphael and where, at the end of the virtual visit, the physician told the patient she was withdrawing as Raphael’s doctor. Raphael sought a preliminary injunction.
No different than dictation
The audio was recorded by the clinic’s DAX system, an outside company providing a software service that generates a draft summary of the visit. The physician edits the summary, which includes adding details that a DAX summary may have omitted, to create a final medical record that goes into a patient’s chart.
The clinic told the court that the recording is only for administrative purposes and exempt from being part of the record that patients have a right to receive.
The brief from the AMA, WSMA and WSHA explained to the court that “only the physician’s final clinical note—which reflects their professional judgment—is used to provide healthcare services to the patient” and that the “underlying recordings or transcripts—like dictation and handwritten notes—are merely temporary administrative tools.” The organizations’ brief pointed out that “under state and federal law and long-established practice, they are not part of the record of the medical care provided the patient.”
The court agreed, as the WSMA noted in a news item posted in August.
“The ordinary meaning of ‘administrative purpose’ is ‘for the internal operation or use of an institution.’ Physicians and the clinic use the DAX recording to assist with the time-consuming task of preparing a written record of the patient encounter,” the court said in its Aug. 7 finding of fact, conclusions of law, and order. “The court finds that the use of the DAX recording to assist physicians in preparing the written record of a patient encounter is an ‘administrative purpose.’ Thus, the DAX recording is exempt from disclosure under the Uniform Healthcare Information Act.”
Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.
