Mitchell Warner, P.A. - Medical Law Alert

Health Law Matters

E-MAIL COMMUNICATIONS WITH PATIENTS AND POTENTIAL PATIENTS - OPPORTUNITY AND CHALLENGES FOR PHYSICIANS

By Edward E. Hollowell and Kenneth A. De Ville, Mitchell Warner, P.A.

Electronic mail (e-mail) between physicians and patients has the potential to enhance and enrich the physician-patient relationship. Despite this promise, e-mail communications in the medical environment raises important questions of legal and professional propriety. We will identify, analyze and discuss some of the hazards associated with the this new and powerful technology.

E-mail with Current Patients:

Because there are few laws or court rulings specifically relating specifically to e-mail, any observations are speculative. Some guidance, however, is possible. In many respects e-mail between a physician and patient who have an already established physician-patient relationship presents a relatively clear case legally. In such an instance, the physician-patient relationship has already been explicitly established by mutual consent. If the physician provides negligently erroneous advice over e-mail, he or she may be held liable for the damages that such a breach of duty causes just as he or she would have if he or she had provided the same advice in person.

In the context of e-mail communications, however, a physician's duty might go further. It might also include a professional obligation to properly orchestrate those electronic interactions, to inform the patient of the limitations of the medium, and to establish staff policies to ensure that patient well- being is protected. A physician who chooses to engage in e-mail communications with patients must first decide what type of clinical information is fitting to convey in this format. In most circumstances the only appropriate use of physician-patient e-mail correspondence is where there is a previously existing professional relationship and the communication relates to a simple and clear, non-urgent issue that does not involve sensitive or confidential information. For example, it may be appropriate to respond to patient questions regarding diet or the self- monitoring, for instance, of blood pressure, insulin and glucose levels. Physicians may find electronic mail an effective way to respond to prescription renewal and appointment requests, to provide appointment and other reminders, to conduct other forms of general patient education, and to follow-up and elaborate on information and explanations provided initially in person. In contrast, it would usually be inadvisable to use e-mail to convey complicated, urgent or sensitive medical information. For example, ordinarily, confidentiality concerns should proscribe the use of e-mail for cases sensitive issues like mental health, substance abuse, HIV status, or medical information regarding legal claims involving the patient.

It is vital that both physician and patients understand explicitly both the limitations of electronic communication and the authorized uses of e-mail within the practice. A consensus is developing in the professional literature which suggests that physicians and patients who communicate electronically should engage in an informed consent process through which the patient is advised of the potential risks and benefits of clinical e-mail communications. It is possible that patients who have not been fully informed of the limitations of e-mail communications, may have a legal cause of action if: 1) they are in some way injured through its use, and 2) would have otherwise not been injured or would have forgone its use if they had fully understood the nature of the technology. As a result, for clinical, ethical and legal reasons, a thoroughgoing patient education program should be in place before a physician or practice begins to correspond with patients on medical matters.

There is no case law or specific statute that outlines the specific limitations of e-mail, the requirements of internet "informed consent," or the appropriate policies that should be followed by a medical practice. However, the American Medical Informatics Association (AMIA) has offered Guidelines for the Clinical Use of Electronic Mail with Patients for patient-physician e-mail. Similarly, the AMA has produced Guidelines for Physician-Patient Electronic Communications. Finally, the eRisk Working Group for Healthcare, a consortium of national medical societies and liability carriers has produced Guidelines for Online Communications. Other professional and health related organizations have produced similar sets of guidelines. These guidelines have no technical legal significance, but they represent invaluable check-lists and good starting points for physicians who wish to provide this option for their patients. It is possible that the guidelines might someday provide a framework for deciding the nature of physicians' duties regarding e-mail communications.

Medical practices in which physicians have chosen to communicate with patients electronically should establish written office policies that take account of the problematic dynamics of e-mail communication in medicine. These policies should address issues such as: the acceptable content of e-mail queries and answers; the triage and protocols which will frame how physicians and staff will respond to such questions; expected response time to messages received from patients; the identity of staff who will read/screen incoming messages; document-retention practices; authentication issues, and the security measures taken to protect the confidentiality of the electronic correspondence. Physicians and their office managers should also be aware of the specific relevant security and privacy requirements contained in the 1996 Health Insurance Portability and Accountability Act regulations. Medical practices should establish training, monitoring, and disciplinary policies in order to assure that all staff abide by the office policies and state and federal regulations on e-mail related issues.

Finally, the physician or practice should consult with its insurance carrier to determine the scope and limits of its liability coverage related to electronic communications. Some states require full licensure before an out-of-state physician can provide care to patients by electronic means. Some states allow limited electronic practice by out-of-state physicians. Still others require a form of "limited" licensure which allows out-of state physicians to practice electronically or to act as consulting physicians. Failure to abide by or appropriately interpret state licensure laws can, of course, lead to charges of practicing medicine without a license. A physician should also consider the possibility that his or her medical malpractice insurance policy may not cover any liability that is incurred as a result of practice in a jurisdiction not identified in the insurance contract. Before expanding clinical use of electronic communication, physicians should seek qualified assistance in determining whether they are practicing legally and whether their insurance contracts will protect them in the case of an untoward event.

Communication with "potential patients":

E-mail between physicians and persons who are not officially their patients raises even more complicated questions. It is clear that individuals currently use e-mail to request information and advice from physicians with whom they do not have a professional relationship.

Responding to unsolicited e-mails from individuals who are not one's patients raises serious problems. While it may run counter to physicians' moral and professional intuitions to provide no reply to an individual who is requesting aid, providing, or appearing to provide, medical advice without the benefit of a history, physical evaluation and appropriate diagnostic measures represents a potential legal risk. Providing medical information and advice over e-mail to patients one has never examined, or even met, is a highly uncertain and precarious practice. Obviously, if a physician responds to an e-mail inquiry, provides non-negligent advice or information, and the individual requesting the advice suffers no injury, there is little legal risk. But that will not always be the case given the opportunities for mistake and misunderstanding and the reality that not all patients will enjoy full and unambiguous recoveries even under the best conditions. Although a physician cannot be held legally liable unless it is shown that a physician- patient relationship exists, the existence of a duty can be sometimes be "implied" depending on the facts of the specific case. In the case of unsolicited e-mail communications, a plaintiff would probably have to: 1) demonstrate the physician received specific information regarding a specific patent; and 2) prove that the physician intended to provide an evaluation, diagnosis, treatment information or recommendation with the reasonable expectation that the reader of the message intended to rely on that information In the event that a plaintiff can establish all these issues, a viable claim of a physician-patient relationship might exist, even where no payment is received and no appointment made or kept. If the advice or information provided is negligently incomplete or incorrect, then the physician might be facing a viable action for negligence. Physicians can safely offer general medical information to individuals without creating a physician-patient relationship. But when that information is offered in response to a question that provides patient-specific information and requests guidance, it becomes more difficult to distinguish between general medical information and specific medical advice.

It is true that a physician could include a disclaimer with all patient- and message- specific answers to unsolicited e-mail inquiries. The disclaimer might inform the recipient that the message should not be considered medical advice and is not a diagnosis or treatment recommendation. The inclusion of the disclaimer may provide some evidence that there was no intention to provide medical advice to this patient and protect the physician from the claim that a physician-patient relationship had been created. But the disclaimer may be of uncertain value in this type of case. If the physician includes a disclaimer but then provides what might be construed as medical advice, then the prophylactic value of the disclaimer is insecure.

Given these concerns, individualized responses to unsolicited e-mails from non-patients are unwise and should not be pursued. Physicians will typically be under no duty to respond e-mails from non-patients. But, a standard, carefully drafted, boilerplate response to every unsolicited e-mail request, sent in a timely fashion could make it clear that the physician has not evaluated the individual's e-mail or condition, encourage the sender to seek timely medical attention, and steer individuals to the appropriate channels by providing phone numbers and other contact information. Such a standard reply to unsolicited e- mail inquiries from non-patients makes it clear that the physician is providing neither information or advice to the patient and that it is perilous to seek medical advice in this manner.

The potential benefits of physician-patient e-mail are too great to oppose the practice unconditionally. A responsible approach to e-mail communications is one that most effectively identifies genuine legal and ethical hazards and develops policies to mitigate or avoid them. Careful planning and execution are essential. However, until our courts provide us with further guidance, the safe rule for physicians to follow is to assure that e-mail communications provides patients with the same protection of their right of privacy in their medical records as convention communications provide them.

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The Medical Law Alert is a publication of the Mitchell Warner Health Law Group. Its purpose is to provide general information about significant legal developments, and should not be construed as legal advice on specific factual scenarios. For more information on the issues discussed in this publication, please contact Edward E. Hollowell, JD, FCLM or Kenneth A. De Ville, JD, PhD, Co-Editors at (800) 662-7403.