Can You Record Your Doctor Appointment in Delaware?
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It is unclear. One Delaware law allows you to record a conversation you are part of, but another requires the consent of everyone, and no Delaware court has settled the conflict, so ask your clinician for permission before recording.
- In-person visit
- UnsettledUnclear, so ask first
- Phone or telehealth visit
- UnsettledUnclear, so ask first
Main law: 11 Del. C. § 1335(a)(4)
Recording an in-person visit
Delaware's privacy law (11 Del. C. § 1335(a)(4)) makes it a crime to intercept a private communication, "including private conversation," without the consent of all parties. Delaware's wiretap law (§ 2402(c)(4)) says it is lawful for a person to intercept a conversation they are part of. Because these laws conflict and Delaware's courts have not said which one controls, the safest approach in the exam room is to tell the clinician and get a yes.
Phone and telehealth visits
The same conflict applies to phone and video calls. A 1975 federal court decision (United States v. Vespe) rejected the argument that § 1335 required both parties' consent for a phone call recorded by one participant, but that ruling does not bind Delaware state courts and came before the current wiretap law was passed. If your clinician is in another state, that state's law may also apply, so ask first.
When you and your clinician are in different states, for example on a phone or video visit, there is no single national rule for which state's law applies. Courts decide case by case, and they have not all agreed. California's highest court applied California's stricter rule to calls recorded in Georgia with people in California, while a Pennsylvania court declined to apply Pennsylvania's stricter rule to a call recorded in New York. The safest choice is to follow the stricter state's rule: tell everyone you are recording and get their OK.
Things to know
- Many guides call Delaware an all-party state because of § 1335, and others call it one-party because of § 2402. Both laws are still on the books.
- Even under the one-party wiretap law, the protection does not apply if a recording is made to commit a crime or a civil wrong.
- Changes to § 1335 in 2023 and 2024 dealt with wording and with intimate images and deepfakes, not with audio recording.
- Do not leave your phone recording in the room after you step out. Once you are not part of the conversation, recording it could count as illegal eavesdropping.
- Clinics may have their own recording policies and may ask you to stop, even where recording is legal.
What happens if you break the law
A violation of § 1335(a)(4) is a class A misdemeanor, punishable by up to one year in jail and a fine of up to $2,300 (§ 4206). A violation of § 2402 is a class E felony with a fine of up to $10,000 and up to five years in prison (§ 4205), and § 2409 allows a civil suit for actual damages (at least $100 a day or $1,000), punitive damages and attorney fees.
How to ask your clinician
Ask before you start, and record the answer so there's no doubt later:
“Before we start, is it okay if I record this visit? I want to remember your instructions correctly.”
Wait for a clear yes. If your clinician says no, take notes instead or ask for a written summary. More tips are in our guide to asking to record your doctor visit.
Delaware law and court decisions
- 11 Del. C. § 1335(a)(4): Violation of privacy: intercepting a private message or private conversation without consent of all parties; class A misdemeanor
- 11 Del. C. § 2402: Interception of wire, oral or electronic communications; class E felony; (c)(4) makes interception by a party, or with one party's prior consent, lawful unless for a criminal or tortious purpose
- 11 Del. C. § 2409: Civil damages for interception in violation of chapter 24
- 11 Del. C. § 4205: Prison terms for felonies
- 11 Del. C. § 4206: Sentences for misdemeanors
- 18 U.S.C. § 2511(2)(d): Federal wiretap law: a participant may record a wire, oral or electronic communication unless the purpose is to commit a crime or tort
- United States v. Vespe, 389 F. Supp. 1359 (D. Del. 1975): A federal court found no merit in the argument that § 1335 required both parties' consent for a phone call a participant recorded on his own line, noting the drafters meant to follow federal one-party law; it also held federal law governed admissibility in any event.
Recent change: Section 1335 was amended by 84 Del. Laws c. 42 (2023, a gender-neutral wording act) and 84 Del. Laws c. 479 (2024, which added deepfake provisions to § 1335(a)(9)). Neither changed the all-party language in § 1335(a)(4). Section 2402 has not been amended since 2014.
Frequently asked questions
Is Delaware a one-party consent state?
Delaware has no settled rule, so the safest choice is to ask first, for in-person conversations and for phone and video calls. It is unclear. One Delaware law allows you to record a conversation you are part of, but another requires the consent of everyone, and no Delaware court has settled the conflict, so ask your clinician for permission before recording.
Do I need my doctor's permission to record a visit in Delaware?
Delaware's privacy law (11 Del. C. § 1335(a)(4)) makes it a crime to intercept a private communication, "including private conversation," without the consent of all parties. Delaware's wiretap law (§ 2402(c)(4)) says it is lawful for a person to intercept a conversation they are part of. Because these laws conflict and Delaware's courts have not said which one controls, the safest approach in the exam room is to tell the clinician and get a yes.
Can I record a telehealth or phone visit in Delaware?
The same conflict applies to phone and video calls. A 1975 federal court decision (United States v. Vespe) rejected the argument that § 1335 required both parties' consent for a phone call recorded by one participant, but that ruling does not bind Delaware state courts and came before the current wiretap law was passed. If your clinician is in another state, that state's law may also apply, so ask first.
Does HIPAA stop me from recording my doctor?
HIPAA is the federal health privacy law, but it applies to doctors, hospitals, health plans and the companies that work for them. It does not apply to patients. So HIPAA does not stop you from recording your own visit, and it does not give a doctor a right not to be recorded. A recording you keep on your own phone is your personal record, not part of your medical chart. If you give a copy to your clinic and the clinic keeps it, the clinic's copy can become part of its records and HIPAA would then cover that copy.
Can my doctor's office ban recording?
Yes, a clinic or hospital can have a no-recording policy and can ask you to stop. That policy is a rule of the practice, not a law, but in states that require everyone's consent, recording without permission can be illegal on its own. If you keep recording after being asked to stop, the clinician may end the visit, and a practice may stop seeing you as a patient if it gives proper notice (hospital emergency departments still must screen and stabilize anyone with an emergency). Many medical liability insurers advise clinicians to ask why you want to record and to consider allowing it, so asking first often works.
This page is general information, not legal advice. Recording laws change and can depend on the details of your situation. For a legal question, talk to a licensed attorney in Delaware. AlignCare does not provide medical or legal advice.
