Healthcare organizations are increasingly adopting artificial intelligence (“AI”) tools to reduce administrative burden and improve efficiency. AI scribes—tools that record audio from clinician–patient interactions and generate clinical documentation—offer substantial documentation efficiencies but also raise significant legal, regulatory, and operational considerations.
Among the key issues to consider when utilizing AI scribes are the following:
Consent to Recording. Because AI scribes record audio from clinical encounters, their use implicates eavesdropping and wiretapping laws, including all‑party consent requirements in certain states. Recent litigation against health systems in California highlights increasing scrutiny of AI‑enabled recording technologies and alleged failures to provide adequate notice of or obtain consent to recording.
To help mitigate risk, it is prudent for the organizations using AI scribes to:
- Implement standardized processes to obtain and document consent to recording for each encounter,
- Incorporate information on recording using AI into treatment consent documents,
- Provide clear and conspicuous notice of recording practices (e.g., posting conspicuous signs in clinic examination rooms), and
- Define a process for managing situations where a patient withdraws a previously provided consent.
Multi‑Party and Shared Environment Risks. Clinical encounters frequently involve multiple participants, which could include patient’s family members, interpreters, caregivers and clinical staff members. In all‑party consent states, this further increases compliance complexity. When utilizing AI scribes, it is important to implement a process to ensure that all participants (including staff members) are informed of recording and that required consent is documented.
Use of AI scribes in shared clinical settings (e.g., semi-private rooms) presents additional privacy risks due to incidental third‑party recording. Organizations should evaluate whether privacy can be reasonably protected and restrict or modify use of this technology where necessary.
Technical Capabilities and Contracting. AI scribe products vary in functionality. Compliance and patient‑safety risks may arise from inadvertent continued recording, capture of conversations outside the intended encounter or inaccurate transcripts. Rigorous testing, validation, and staff training are essential before broad deployment. From the contracting perspective, it is important to set appropriate contractual terms with the entity providing the AI platform (e.g., data security obligations, restrictions on data use) and to execute a business associate agreement, as required by the Health Insurance Portability and Accountability Act (“HIPAA”) privacy and security standards.
Accuracy, Accountability and Training. AI scribes do not shift responsibility for preparing the timely and accurate medical record. Providers remain accountable for accuracy and completeness and must review and verify all AI‑generated documentation. These obligations can be reinforced through provider training, policies, and quality monitoring processes. It is also paramount to remind providers, through the training process, that only AI scribe tools specifically approved by the applicable organization may be used.
Designated Record Set (“DRS”) and Record Retention Considerations. Under HIPAA, patients have rights to access and amend protected health information in their DRS. When implementing use of AI scribes, it is essential to update organizational policies to be clear on whether audio recordings or draft transcripts are part of the DRS and to assess the implications for patient access and amendment rights. Record retention requirements also need to be considered as these requirements vary by state.
AI scribes present meaningful opportunities to improve clinical documentation workflows, but recent litigation underscores the importance of proactively managing consent, privacy, and data governance risks. As the legal landscape related to this technology continues to evolve, careful compliance planning will remain essential.
