Liability of Physicians for Communicating over the Internet
Liability of Physicians for Communicating over the Internet
by Jay N. Chamness
It is a very sad thing that nowadays there is so little useless information.
- Oscar Wilde
Times have changed since the days of Oscar Wilde. Thanks to the onset of the electronic age, an abundance of information, useless and worthwhile, is available at the touch of a fingertip.
The practice of medicine is not immune from the information age. The use of the Internet in the medical profession is altering the traditional practice of medicine in a variety of respects. Millions of Americans now rely upon the Internet as their primary source of medical information or education about their own conditions, medications, and diagnoses. The importance of protecting the public from the abundance of useless medical information so prevalent on the Internet is apparent. The public needs competent physicians and other medical providers to have a presence on the Internet, and, conversely, the physicians and medical providers need some protection from the liabilities associated with such a venture.
Physicians are taking heed of the public demand; the use of the Internet by physicians and their practices is rapidly increasing. A recent survey on Internet usage by medical groups, conducted by Harris Interactive on behalf of the Health Technology Center, found that 85 percent of physicians use at least one Internet-enabled application in their practices. Over 71 percent use the Internet for general medical research and news, while almost one-third of physicians communicate with patients via e-mail. The study found that 96 percent of those physicians surveyed agreed that Internet technologies will make the practice of medicine easier and improve the quality of patient care by 2003.
Physicians actually have been practicing medicine with the assistance of electronic communication for many years. A typical example of electronic applications is the interpretation of radiological tests. A general practitioner in a rural area may consult with a radiologist in a large metropolitan area. The rural doctor has the capability to transmit radiological images such as x-rays, CT scans, or MRIs to the radiologist electronically, and then to consult by telephone with the radiologist concerning the findings. Thus, while the radiologist may have previously been able to visit the rural area only a few days a month to interpret films, he or she is now accessible at any time, and the delivery of quality health care is made much more efficient.
The practice of telemedicine is constantly evolving and expanding beyond the typical scenarios into areas never before imagined. Physicians and patients can now interact across vast distances through videoconferencing. It is becoming possible for physicians to conduct medical procedures from remote locations with the aid of video technology and the use of robotic instruments. For many physicians, however, their venture into the electronic practice of medicine will most likely be limited to steps such as communicating with patients via e-mail and establishing a Web site.
Although numerous advantages to the medical profession can be enjoyed by using the Internet communicate with patients and potential patients, they come with tremendous responsibility and a quagmire of potential liability. While not intended to be exhaustive, this article will address some of the liability issues associated with on-line communication by physicians via e-mail and Web sites.
E-Mail and the Physician/Patient Relationship
The advantages to physicians of communicating via the Internet are evident. E-mail communication with patients, for example, has certain benefits over telephone communications. The physician can set aside a particular time during the day to respond to these e-mails after they have been appropriately prioritized, rather than responding to telephone calls on an ad hoc basis. The physician can give undistracted thought when responding to e-mails and choose his or her words carefully. A written record of the entire communication can be retained and stored in the patients file, so no question or dispute can arise as to the substance of the communication at a later time.
While the use of e-mail by physicians for communication with patients provides many advantages for the doctor, it clearly can also subject the physician to potential malpractice liability, particularly if the communication involves an individual with whom the physician has already established an ongoing physician/patient relationship. The potential liability associated with e-mail or on-line communication between the physician and an individual with whom the physician has no ongoing office relationship is somewhat more ambiguous, and any such communication must be undertaken carefully.
Malpractice liability has traditionally been imposed only if an established physician/patient relationship exists, and no reported court decisions currently address whether such a relationship can be based solely on on-line communication. Several cases, however, suggest that courts are likely to extend the parameters of the physician/patient relationship to those communications that occur solely in cyberspace.
In Bienz v. Central Suffolk Hospital, 163 A.D.2d 269, 557 N.Y.S.2d 139 (1990), a medical malpractice case, the defendant physician contended that a single telephone call made to a physicians office for the purpose of initiating medical treatment was insufficient to establish the necessary physician/patient relationship. The Bienz court emphasized that a medical malpractice action may be based upon a contention that the physician gave improper advice to a patient. It concluded that the question of whether a physician/patient relationship may be implied on the basis of the advice given during a single telephone call was a question of fact for the jury.
In Barad v. State Board for Professional Medical Conduct, 724 N.Y.S.2d 87, 282 A.D.2d 893 (2001), which involved the appeal of a suspension of a physicians medical license, a New York court analyzed the substance of e-mail communications between a physician and patient to determine whether a physician/patient relationship existed during a particular time period. The physicians license to practice medicine had been suspended by the state licensing board on the basis of findings that he physically abused a patient and engaged in conduct that evidenced a moral unfitness to practice medicine. The findings arose from the doctors admitted affair with a female patient between August and December of 1996. The physician contended that, at the time of the affair, the physician/patient relationship had ended. The Barad court found, based in part on examination of the substance of certain e-mail communications between the physician and the female, that the physician continued to discuss the subjects that formed the basis of prior medical treatment, and concluded that a physician/patient relationship continued during the time period in which the e-mail communications were ongoing.
Some courts have imposed malpractice liability on consulting physicians who were not sought by the patient and who did not actually see or examine the patient. In Davis v. Weiskopf, 108 Ill.App.3d 505, 439 N.E.2d 60 (1982), the Appellate Court of Illinois reviewed the trial courts dismissal of a medical malpractice complaint on the basis that no physician/patient relationship existed between the parties. The plaintiff alleged that the defendant was consulted by the plaintiffs treating physician concerning some suspicious x-ray results of the plaintiffs knee, that the plaintiff scheduled an appointment with the defendant, which the defendant subsequently cancelled, and that the plaintiff was then told that the defendant would not see or treat the plaintiff. The plaintiff contended that the defendant was negligent in not advising him of the x-ray results or referring him to another physician for treatment. The court held that, despite the fact that the defendant consulting physician never saw or treated the plaintiff, the limited relationship that did exist was sufficient to impose a duty to conform to the standard of care. Thus, it is clear that direct patient involvement and/or contact is not necessary to subject a physician to potential malpractice liability. The courts will most likely not hesitate to find the existence of a physician/patient relationship based upon e-mail communications and such communications should therefore be used with caution.
Guidelines for Internet E-Mail Communication
With the potential liability concerns, the importance of a uniform and efficient method of handling e-mail communications between physician and patient cannot be overstated. If the physician desires to communicate via e-mail with patients, he or she should have formal guidelines governing such communications. Several professional groups have composed sample guidelines that attempt to accomplish this. Such guidelines should at the very least cover the following areas.
- Transmitting medical advice
The physicians office needs some formal guidelines for sorting and responding to incoming e-mails. A physician could significantly limit any malpractice exposure associated with e-mail communication by limiting the subjects of such communication to non-clinical areas such as scheduling, billing, and prescription refills.
However, assuming that the physician wishes to provide clinical information to patients, the doctor needs an efficient system for triaging the information received and must establish guidelines for responding to requests for information within a certain time frame. The time frame may not be uniform and certainly will be affected by the substance of the e-mail communication from the patient. For example, a patient seeking medical advice for a reaction to a recently prescribed medication will require a shorter response time than a patient with a billing question.
The physician should ensure that the patient understands the subject matters on which e-mail communication is permitted. The use of e-mail to address clinical issues should be limited to only non-emergent issues, and the patient should be so advised. Of course, this assumes that the patient will be able to recognize that his or her situation is non-emergent. The e-mail policy should explain when it is inappropriate to communicate via e-mail or when telephone communication is preferred.
E-mail communication between physicians and patients should be limited to those patients with whom the doctor has an ongoing relationship. While the merits of providing clinical advice via e-mail to patients with whom the physician has an ongoing relationship is debatable, the potential liability associated with e-mail communication of clinical advice will rise dramatically if the medical provider has no ongoing relationship with the person seeking advice. In fact, it is wise to establish some criteria requiring the patient to have been seen and treated by the medical provider within a certain time period, such as the last six months.
The e-mail policy should additionally limit communications with patients to those who are physically located in the same state as the provider at the time of the communication. Unauthorized practice of medicine issues do not arise from the traditional practice of a patient who resides in one state seeking the services of a physician in another state when the services are provided to the patient at the physicians office. Significant issues, however, may be associated with providing medical advice to that same patient via e-mail when the patients e-mail originates from the patients out-of-state address.
- Privacy of e-mail correspondence
While issues relating to patient privacy should always be of concern to the medical provider, this concern should be paramount when establishing a system of on-line communication with patients. Myriad federal and state statutes and regulations protect patients confidentiality and privacy, not the least of which are the privacy rules under the Health Insurance Portability and Accountability Act. While it is impossible to address in detail the complex web of privacy rules in this article, a few basic principles should guide the physician in his e-mail communications with patients.
The physician should designate those individuals who are to have access to and respond to patient e-mails, and should ensure the patient is made aware that individuals other than the addressee may see patient e-mails. To further guard against potential privacy violations, the doctors office should refrain from using e-mail communications to address sensitive subjects such as HIV testing, a patients mental health, etc. The physician or designee should never forward any information containing patient-identifiable information to third parties, except where the purpose is to obtain consultation for the patients treatment, and should then do so only with the patients consent.
The physician or designee should not use patient e-mail addresses or other information in any sort of marketing scheme. The sending of e-mails to large patient groups should be discouraged. However, if this is necessary for some reason, the physician should ensure that individual patients are not sent the address of other patients within the group. The physician should also consider the use of encryption technology in communicating via e-mail with patients, and should advise the patient of the security mechanisms in place.
Before undertaking to communicate with patients on-line, the physician would be well advised to educate the patient about the policies of the physicians office with respect to Internet communication, and to request that the patient consent in writing (by written or electronic signature) to the guidelines established by the doctors office. The e-mail policy should contain a disclaimer that the physician reserves the right to refuse on-line communication with any patient who abuses the services or violates the terms of use set forth in the posted policies. It is also wise for the consent form to contain a provision holding the physician and his office harmless for losses due to technical failures or for damage associated with computer viruses.
As with any medical record documenting treatment, copies of e-mail communications should be printed and retained in the patients medical record file. The physician should be reminded that with e-mail communication, unlike telephone consultations and advice, a record of the communication is made and, in many cases, will be saved by the patient. Therefore, it is extremely important that the entire communication be retained, including the advice sought by the patient and given by the physician.
There is a variety of steps associated with the technical capabilities of modern communication that each doctor should consider when establishing and maintaining e-mail communications with patients. The physicians office should use password-protected screen savers on computers used in the office for e-mail communication. The physician may want to activate the automatic reply mechanism to acknowledge receipt of messages and to track when responses are opened by the patient.
Physician Web Sites
Many physicians have established Web sites to provide specific and general medical information. Liability exposure stemming from maintenance of a physician Web site is probably not as great as that associated with e-mail communication, assuming the doctor refrains from providing case-specific medical advice to individual patients. However, the Web site may give rise of other problems that might not be initially recognized.
Numerous organizations publish guidelines to help guide physicians and medical organizations through the maze involved with setting up a medical Web site. The American Medical Association and six other medical societies have founded a Web site called Medem, which provides, among other health information, extensive guidelines for medical providers interested in establishing medical information Web sites.
In 1999, a staff committee for the American Medical Association, in composing principles for medical information Web sites, identified four areas for which quality standards were important: 1) site content; 2) advertising and sponsorship; 3) privacy and confidentiality; and 4) e-commerce. While not intended as an exhaustive summary of these four areas, the following will highlight some of the important considerations for the lawyer advising those physicians interested in setting up a medical information Web site.
Content
First and foremost, the physician should ensure the quality and reliability of site content. Any medical information posted on the Web site should be independently reviewed for accuracy and reliability prior to posting and should be reassessed on a routine basis. The physician might even consider limiting information to that available from specific reputable sources, such as government health organizations, major health associations like the AMA, peer-reviewed journals, etc. If the Web site is being produced by a third-party service, the physician should be careful to retain control over the information posted and should ensure that the third party understands and complies with the privacy policy. The Web site should specifically and clearly identify the source of any third-party medical information posted thereon.
As with any communication with potential consumers, the physician should be careful not to misrepresent or exaggerate the types of services provided, or make any statements that could be taken as warranties for specific services. The credentials of the medical provider should be accurately and clearly stated on the Web site, along with a statement of the states in which the physician is licensed to practice.
While not providing absolute protection, the physician Web site should contain some type of written disclaimer governing the use of the site. The effectiveness of such disclaimers may vary greatly from jurisdiction to jurisdiction, as may the required substance. A search of various medical information Web sites has revealed a wide variance of the language included in such disclaimers, but the following subjects should probably be addressed:
That the information provided on the site is informational only and not intended to constitute medical advice or treatment.
That no physician/patient relationship is established simply by virtue of the user of the site accessing medical information.
That the advice of the patients health care provider should be sought for any specific medical problems.
Advertising
In its Guidelines for Medical and Health Information Sites on the Internet, the American Medical Association adopts many of its guidelines governing advertising for written publications. However, some Web-specific edicts should be considered if the physician decides to accept advertising on his or her Internet site. While not inclusive, the following restrictions are significant.
Most importantly, physicians should not allow advertisers or sponsors to influence any decision about editorial content on the Web site. In fact, the physician should take steps to ensure that advertising on a particular topic is clearly labeled as an advertisement and does not appear adjacent to any editorial content on the same subject. Needless to say, the physician should only accept those advertisers whose products are familiar to him and which he knows to be reliable.
To the extent that the advertisement provides a link to another Web site for the product or information, it is advisable for the home Web page to have a buffer, or transition page. This page should make it clear that the user is leaving the physicians Web site. It should include its own separate disclaimer indicating that the physician does not assume responsibility for the information and items referenced on the Web site to which it links.
- Privacy and Confidentiality
Many of the privacy concerns about e-mail communication also apply in the context of a physician Web site. As with patient e-mail, protecting the privacy and confidentiality rights of users should be paramount. The AMA defines the term privacy as the right of the individual site visitor to choose whether to allow personal information to be collected. . . and to know what type of information is collected and how that information is used. It defines confidentiality as the right of an individual to not have personally identifiable medical or other information disclosed to others without that individuals express informed consent.
In light of these two definitions, the physician should be cautious about collecting and using personal information concerning the users of the Web site. As a general proposition, it is preferable, from a liability standpoint, for the Web site not to collect any personal information for any purpose. If the physician collects such information for some reason, it should only be done with user consent, with a clear understanding conveyed of the purpose and intended use of the information. If advertisers are permitted to post links on the doctors Web site, he or she should ensure compliance with the privacy policy.
E-Commerce
The guidelines for e-commerce set forth by the AMA are designed to ensure efficient and secure transactions for online users and purchasers. While not addressed in detail here, they include such items as maintaining clearly visible links on subjects such as privacy policies and customer service information, the use and explicit description of appropriate encryption and security technology, and allowing users to review and receive transaction information before and after purchase.
Physicians Practicing Medicine over the Internet
Few would question that the radiology scenario addressed earlier in this articlerapid assistance to small-town general practitionersis an advancement welcomed by the medical community. However, another aspect of the practice of Internet medicine raises greater concern. Consider the following factual scenario. Joe Smith, a resident of a rural area, has a physical illness that, in his opinion, requires medical treatment, but has limited access to health care. The closest physician or hospital is more than 60 miles away and provides limited resources and facilities. Mr. Smith does, however, have access to the Internet.
Mr. Smith logs onto http://www.cyberdocs.com. He accesses the patient information area and selects the option indicating he wants to consult with a board certified physician. He views an overview page of information and selects the option that allows him to enter the doctors office. He receives a notice that he is about to view pages over a secure location and is then prompted to enter his location, including his county and state. Mr. Smith views a page that lists the specialty areas available for consultation and selects family practice. He views a page that lists doctors who carry on a family practice, and then selects a particular name. He is able to view the chosen physicians credentials, view his or her appointment calendar for a live consultation, or send a secure e-mail to the physician. He decides to send a secure e-mail, describing his particular problem, and provides his credit card information (the total cost of an Internet consultation is $65).
The next day, Joe Smith receives advice and possibly a prescription for his medical condition. He spends a total of 20 minutes on his computer, never undergoes a physical examination, never leaves the comfort of his den, and receives treatment that resolves his physical illness.
This scenario, while varying somewhat in medical specifics, occurs every day. The proponents of such a process argue that it increases the efficiency of and access to health care while decreasing the potential cost. Opponents question the propriety of treating patients without a physical examination and raise what they see as the erosion of the sanctity of the physician/patient relationship.
While debate is ongoing over whether such a process is ethical or proper, more and more people are consulting doctors in this manner, and the practice will unquestionably present the cyberdocs with significant malpractice concerns. The lawyer who defends doctors needs to be aware that physicians are practicing cybermedicine in this fashion every day. Common sense suggests that such behavior can lead to significant malpractice liability exposure.
Malpractice Insurance Considerations
Will a doctors medical malpractice insurance cover consultations/advice transmitted over the Internet? The physician cannot assume that his or her insurance policy is sufficient to cover any exposure related to communicating via the Internet with patients, or with establishing a Web site. Many medical malpractice insurers cover only those specific risks defined in the policy; the practitioner, or the defense lawyer, will need to examine the policy carefully to determine what is covered. The physician may need to purchase an all risk insurance policy, which would cover those risks associated with the use of the Internet.
The physician should be aware of the additional non-medical exposures associated with communicating via the Internet and insure himself or herself accordingly. The doctor may have to procure a policy that will cover the potential exposure medical malpractice insurance does not cover. For example, claims for property damage suffered by a patients computer system caused by a virus originating in the physicians computer system would not typically fall within the risk insured in a medical malpractice policy. Claims for torts such as libel or slander, copyright or trademark infringement, and violation of confidentiality law due to the unintended release of confidential information would not typically be covered in a medical malpractice specified risk insurance policy. The wary physician, and defense counsel advising the physician, should consider all potential risks when establishing an Internet presence and secure appropriate coverage.
Conclusion
Technology is constantly evolving, and, with it, so is the practice of medicine. Numerous studies indicate that the public relies heavily on the Internet to obtain health information, and, as a result, competent physicians need to establish a presence there. Such a presence can enhance the physicians practice by making it more efficient and generating business. However, the benefits from an on-line presence must be balanced against the potential liabilities, which are significant and constantly evolving.
Establishing and maintaining a presence on the Internet, either through e-mail communication with patients or through a physician Web site, should not be undertaken quickly or haphazardly. Counsel for the physician planning such an endeavor should carefully consider the potential liabilities associated with it and ensure the physician is well advised. Only then can the physician and the patient truly benefit from Internet communication.
AUTHOR
Jay N. Chamness is a partner in the law firm of Cornelius & Collins, LLP, in Nashville, Tennessee. He counsels and defends physicians and other health care providers in medical malpractice actions. Mr. Chamness is a member of DRI and its Medical Liability Committee.
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