A slightly different situation, but I was involved in a conversation where someone asked his attorney if he could put a recorder in his briefcase, with a non-visible mic so it could record when the briefcase was closed, during a conference with the other side. The attorney said that was fine. But when the person asked if he could leave the briefcase in the room when he and his people would be asked to leave, so the other parties could confer, the attorney said that would be illegal. Not a perfect parallel, but along the same line.
Not really a parallel. By physically leaving with his attorney when asked he was giving the other side the reasonable expectation that the conversation was private. By introducing a concealed recording device the person was recording a conversation where the other party reasonably expected no other parties could overhear, hence it is illegal, and this is exactly the sort of thing that the Wiretap Act was passed to guard against (see the intent below).
(edits made from here on for clarity to remove late night rambling)
Pub. L. 90–351, title III, §801, June 19, 1968, 82 Stat. 211 , provided that: "On the basis of its own investigations and of published studies, the Congress makes the following findings:
"(a) ... Electronic, mechanical, and other intercepting devices are being used to overhear oral conversations made in private, without the consent of any of the parties to such communications.
Title 18 USC 2510
it's the question of if he's unconscious, is he 'a party' to the conversation.
Pat was present in the room quite obviously. He never left or did anything else to formally withdraw from the conversation. It is absurd on its face to argue that the other people in the room could reasonably assume to be "in private." The conversation was explicitly made with the knowledge that Pat was there and listening (or potentially listening). The sum total of the facts of the case, as well as some admittedly imperfect yet similar cases would appear to support Pat more than oppose him.
Was he a "party to the communication" (the specific words from the wiretap act)?
Caro v Weintraub is very interesting and relevant here because (a) it deals with becoming a "party to the communication" (you don't need to be invited) and (b) the court of appeals held that
"[P]rotection under [Title III] requires not simply an expectation that there will be no recording, but an expectation that the conversation is private.” In re State Police Litig., 888 F. Supp. 1235, 1272 (D. Conn. 1995). Here, Plaintiff clearly knew that David Weintraub was listening to and engaging in the conversation. David and Eric Weintraub sat with the Plaintiff while he and Lynn Corrigan continued their dialogue.
For the other side, leaving the conversation, we have United States v.Tzakis, United States Court of Appeals, Second Circuit Jun 11, 1984 736 F.2d 867 (2d Cir. 1984). Here we have a telephone conversation, so not perfect, but relevant as it was set up as a multiparty telephone call with one person who was for most of the conversation a passive party to the communication, i.e. they listened, contributed nothing, but members knew they were listening (in this case because of an announcement at the beginning of the call by one of the other parties). The court held that they were entitled to make a recording of the conversation as a party to the conversation. Pat was obviously physically present for the entire conversation, so a reasonable person would expect that he was a party to the communication and if they wanted him not to be they would have had to take steps to remove themselves, likely physically (leave the room, withdraw a great distance and whisper, with continuous withdrawal should Pat follow, etc.) Yes, this last bit is conjecture as I cannot find prior rulings, but it is what a reasonable person would do to indicate Pat should no longer consider himself a party to the communication.
Not court, but a semi-authoritative interpretation at the DOJ:
"Party to the Communication" under 18 U.S.C. 2511(2)(c) and (d) A “party to the communication” under 2511(2)(d) is one who is present when the oral communication is uttered and need not directly participate in the conversation. Inside Edition producer, working undercover as a sales agent for a magazine sales company, wore a hidden camera and microphone and recorded the day to day activities of the company that he observed first hand. Pitts Sales, Inc. v. King World Productions, Inc., 383 F. Supp.2d 1354 (S.D. Fla 2005). 22 "The courts that have addressed the issue have held that a defendant has no reasonable expectation of privacy in statements made in the presence of a government agent, even though the agent was not participating in the conversation. See U.S. v. Coven, 662 F.2d 162 (2d Cir. 1981), cert. denied, 456 U.S. 916 (1982). The court finds that a conversation conducted in Spanish in the presence of a third person does not carry any expectation of privacy 'that society is prepared to recognize as 'reasonable,'' Katz v. U.S., 389 U.S. 347 (1967). Such a holding would imply that someone speaking Spanish is entitled to a greater expectation of privacy than someone who only speaks English." U.S. v. Torres, 983 F. Supp. 1346 (D. Kan. 1997).
Yes, it says government agent, but it is the DOJ paper "Electronic Surveillance Issues" so it is written for a government audience (https://www.justice.gov/sites/default/files/criminal/legacy/2010/04/11/elec-srvlnce-issuse.pdf). In practice interception by a government agent is held to a stricter standard, so it should be very applicable to Pat. I do get your point that the only absolutely safe interpretation at this point is that should someone not want to violate the Wiretap Act not recording is the only absolute way, but based on precedent and the "reasonable person" construct he is highly likely to be within his rights. The counter-arguments that I have been able to come up with for the doctor are not nearly as strong, and in fact most are ridiculous.
Interesting but not relevant (yet) aside - in 2014 the Illinois wiretap/eavesdrop statute was overturned by the Illinois Supreme Court as being overly broad on first amendment grounds, in part because of the nature of recorded communication as free speech in the modern world. I'm not in Illinois, so I didn't go into detail to see if this was poor reporting and they meant "Article 1" (of the Illinois state constitution), but "first amendment" is generally held to be the US constitution when standing alone. I wouldn't base a defense on this, but it seems to be showing the times are a'changin.
The possibility of the recording being tampered with is irrelevant on all sides.
Irrelevant legally, but if someone is concerned about preserving a record of what happened to document what happened it is important. I am wandering between law, ethics and individual comfort here, and if a person does not trust their doctor and wanted a record then ensuring it is an accurate record is important to them from an individual comfort angle. To be effective evidence should an action after the fact be necessary it would also need to be untampered with.
Sometimes reviewing situations is most valuable for understanding what went on and how to handle things in the future, rather than to assign blame about the past incident.
Curious where you intended to go with this. Other than indication that Pat should get a different doctor, and possibly support for Pat continuing to record, what can he do? The other future-looking benefit is the more discussion about this kind of thing there is the more we can hope that doctors will not behave as this one did. I must confess that thought I understand the reasons for not disclosing his name it would be nice to know to warn others about him.